[Title 28 CFR 35]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 35 - NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES]
[From the U.S. Government Printing Office]


28JUDICIAL ADMINISTRATION12002-07-012002-07-01falseNONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES35PART 35JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES--Table of Contents




                           Subpart A--General

Sec.
35.101  Purpose.
35.102  Application.
35.103  Relationship to other laws.
35.104  Definitions.
35.105  Self-evaluation.
35.106  Notice.
35.107  Designation of responsible employee and adoption of grievance 
          procedures.
35.108-35.129  [Reserved]

                     Subpart B--General Requirements

35.130  General prohibitions against discrimination.
35.131  Illegal use of drugs.
35.132  Smoking.
35.133  Maintenance of accessible features.
35.134  Retaliation or coercion.

[[Page 505]]

35.135  Personal devices and services.
35.136-35.139  [Reserved]

                          Subpart C--Employment

35.140  Employment discrimination prohibited.
35.141-35.148  [Reserved]

                    Subpart D--Program Accessibility

35.149  Discrimination prohibited.
35.150  Existing facilities.
35.151  New construction and alterations.
35.152-35.159  [Reserved]

                        Subpart E--Communications

35.160  General.
35.161  Telecommunication devices for the deaf (TDD's).
35.162  Telephone emergency services.
35.163  Information and signage.
35.164  Duties.
35.165-35.169  [Reserved]

                    Subpart F--Compliance Procedures

35.170  Complaints.
35.171  Acceptance of complaints.
35.172  Resolution of complaints.
35.173  Voluntary compliance agreements.
35.174  Referral.
35.175  Attorney's fees.
35.176  Alternative means of dispute resolution.
35.177  Effect of unavailability of technical assistance.
35.178  State immunity.
35.179-35.189  [Reserved]

                     Subpart G--Designated Agencies

35.190  Designated agencies.
35.191-35.999  [Reserved]

Appendix A to Part 35--Preamble to Regulation on Nondiscrimination on 
          the Basis of Disability in State and Local Government Services 
          (Published July 26, 1991)

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; Title II, Pub. L. 101-
336 (42 U.S.C. 12134).

    Source: Order No. 1512-91, 56 FR 35716, July 26, 1991, unless 
otherwise noted.



                           Subpart A--General



Sec. 35.101  Purpose.

    The purpose of this part is to effectuate subtitle A of title II of 
the Americans with Disabilities Act of 1990 (42 U.S.C. 12131), which 
prohibits discrimination on the basis of disability by public entities.



Sec. 35.102  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all services, programs, and activities provided or made 
available by public entities.
    (b) To the extent that public transportation services, programs, and 
activities of public entities are covered by subtitle B of title II of 
the ADA (42 U.S.C. 12141), they are not subject to the requirements of 
this part.



Sec. 35.103  Relationship to other laws.

    (a) Rule of interpretation. Except as otherwise provided in this 
part, this part shall not be construed to apply a lesser standard than 
the standards applied under title V of the Rehabilitation Act of 1973 
(29 U.S.C. 791) or the regulations issued by Federal agencies pursuant 
to that title.
    (b) Other laws. This part does not invalidate or limit the remedies, 
rights, and procedures of any other Federal laws, or State or local laws 
(including State common law) that provide greater or equal protection 
for the rights of individuals with disabilities or individuals 
associated with them.



Sec. 35.104  Definitions.

    For purposes of this part, the term--
    Act means the Americans with Disabilities Act (Pub. L. 101-336, 104 
Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids and services includes--
    (1) Qualified interpreters, notetakers, transcription services, 
written materials, telephone handset amplifiers, assistive listening 
devices, assistive listening systems, telephones compatible with hearing 
aids, closed caption decoders, open and closed captioning, 
telecommunications devices for deaf persons (TDD's), videotext displays, 
or other effective methods of making aurally delivered materials 
available to individuals with hearing impairments;
    (2) Qualified readers, taped texts, audio recordings, Brailled 
materials, large print materials, or other effective methods of making 
visually delivered

[[Page 506]]

materials available to individuals with visual impairments;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the public entity's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of this part. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    Designated agency means the Federal agency designated under subpart 
G of this part to oversee compliance activities under this part for 
particular components of State and local governments.
    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1)(i) The phrase physical or mental impairment means--
    (A) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological, musculoskeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, hemic and lymphatic, skin, and endocrine;
    (B) Any mental or psychological disorder such as mental retardation, 
organic brain syndrome, emotional or mental illness, and specific 
learning disabilities.
    (ii) The phrase physical or mental impairment includes, but is not 
limited to, such contagious and noncontagious diseases and conditions as 
orthopedic, visual, speech and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, specific learning 
disabilities, HIV disease (whether symptomatic or asymptomatic), 
tuberculosis, drug addiction, and alcoholism.
    (iii) The phrase physical or mental impairment does not include 
homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a public entity as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by a public entity as having such an 
impairment.
    (5) The term disability does not include--
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania; or
    (iii) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    Drug means a controlled substance, as defined in schedules I through 
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, rolling stock or other conveyances, roads, walks, 
passageways, parking lots, or other real or personal

[[Page 507]]

property, including the site where the building, property, structure, or 
equipment is located.
    Historic preservation programs means programs conducted by a public 
entity that have preservation of historic properties as a primary 
purpose.
    Historic Properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under State or local law.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812). The term illegal use of drugs does not 
include the use of a drug taken under supervision by a licensed health 
care professional, or other uses authorized by the Controlled Substances 
Act or other provisions of Federal law.
    Individual with a disability means a person who has a disability. 
The term individual with a disability does not include an individual who 
is currently engaging in the illegal use of drugs, when the public 
entity acts on the basis of such use.
    Public entity means--
    (1) Any State or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and
    (3) The National Railroad Passenger Corporation, and any commuter 
authority (as defined in section 103(8) of the Rail Passenger Service 
Act).
    Qualified individual with a disability means an individual with a 
disability who, with or without reasonable modifications to rules, 
policies, or practices, the removal of architectural, communication, or 
transportation barriers, or the provision of auxiliary aids and 
services, meets the essential eligibility requirements for the receipt 
of services or the participation in programs or activities provided by a 
public entity.
    Qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially both receptively and 
expressively, using any necessary specialized vocabulary.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended.
    State means each of the several States, the District of Columbia, 
the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin 
Islands, the Trust Territory of the Pacific Islands, and the 
Commonwealth of the Northern Mariana Islands.



Sec. 35.105  Self-evaluation.

    (a) A public entity shall, within one year of the effective date of 
this part, evaluate its current services, policies, and practices, and 
the effects thereof, that do not or may not meet the requirements of 
this part and, to the extent modification of any such services, 
policies, and practices is required, the public entity shall proceed to 
make the necessary modifications.
    (b) A public entity shall provide an opportunity to interested 
persons, including individuals with disabilities or organizations 
representing individuals with disabilities, to participate in the self-
evaluation process by submitting comments.
    (c) A public entity that employs 50 or more persons shall, for at 
least three years following completion of the self-evaluation, maintain 
on file and make available for public inspection:
    (1) A list of the interested persons consulted;
    (2) A description of areas examined and any problems identified; and
    (3) A description of any modifications made.
    (d) If a public entity has already complied with the self-evaluation 
requirement of a regulation implementing section 504 of the 
Rehabilitation Act of 1973, then the requirements of this section shall 
apply only to those policies and practices that were not included in the 
previous self-evaluation.

(Approved by the Office of Management and Budget under control number 
1190-0006)

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]



Sec. 35.106  Notice.

    A public entity shall make available to applicants, participants, 
beneficiaries, and other interested persons

[[Page 508]]

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



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

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



Secs. 35.108-35.129  [Reserved]



                     Subpart B--General Requirements



Sec. 35.130  General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, on the basis of 
disability, be excluded from participation in or be denied the benefits 
of the services, programs, or activities of a public entity, or be 
subjected to discrimination by any public entity.
    (b)(1) A public entity, in providing any aid, benefit, or service, 
may not, directly or through contractual, licensing, or other 
arrangements, on the basis of disability--
    (i) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aids, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aids, benefits, 
or services that are as effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified individual 
with a disability by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, or service to beneficiaries of the public 
entity's program;
    (vi) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards;
    (vii) Otherwise limit a qualified individual with a disability in 
the enjoyment of any right, privilege, advantage, or opportunity enjoyed 
by others receiving the aid, benefit, or service.
    (2) A public entity may not deny a qualified individual with a 
disability the opportunity to participate in services, programs, or 
activities that are not separate or different, despite the existence of 
permissibly separate or different programs or activities.
    (3) A public entity may not, directly or through contractual or 
other arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified individuals with 
disabilities to discrimination on the basis of disability;
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the public entity's 
program with respect to individuals with disabilities; or

[[Page 509]]

    (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.



Sec. 35.131  Illegal use of drugs.

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) A public entity shall not discriminate on the basis of illegal 
use of drugs against an individual who is not engaging in current 
illegal use of drugs and who--
    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.

[[Page 510]]

    (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.



Sec. 35.132  Smoking.

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



Sec. 35.133  Maintenance of accessible features.

    (a) A public entity shall maintain in operable working condition 
those features of facilities and equipment that are required to be 
readily accessible to and usable by persons with disabilities by the Act 
or this part.
    (b) This section does not prohibit isolated or temporary 
interruptions in service or access due to maintenance or repairs.

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]



Sec. 35.134  Retaliation or coercion.

    (a) No private or public entity shall discriminate against any 
individual because that individual has opposed any act or practice made 
unlawful by this part, or because that individual made a charge, 
testified, assisted, or participated in any manner in an investigation, 
proceeding, or hearing under the Act or this part.
    (b) No private or public entity shall coerce, intimidate, threaten, 
or interfere with any individual in the exercise or enjoyment of, or on 
account of his or her having exercised or enjoyed, or on account of his 
or her having aided or encouraged any other individual in the exercise 
or enjoyment of, any right granted or protected by the Act or this part.



Sec. 35.135  Personal devices and services.

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



Secs. 35.136-35.139  [Reserved]



                          Subpart C--Employment



Sec. 35.140  Employment discrimination prohibited.

    (a) No qualified individual with a disability shall, on the basis of 
disability, be subjected to discrimination in employment under any 
service, program, or activity conducted by a public entity.
    (b)(1) For purposes of this part, the requirements of title I of the 
Act, as established by the regulations of the Equal Employment 
Opportunity Commission in 29 CFR part 1630, apply to employment in any 
service, program, or activity conducted by a public entity if that 
public entity is also subject to the jurisdiction of title I.
    (2) For the purposes of this part, the requirements of section 504 
of the Rehabilitation Act of 1973, as established by the regulations of 
the Department of Justice in 28 CFR part 41, as those requirements 
pertain to employment, apply to employment in any service, program, or 
activity conducted by a public entity if that public entity is not also 
subject to the jurisdiction of title I.

[[Page 511]]



Secs. 35.141-35.148  [Reserved]



                    Subpart D--Program Accessibility



Sec. 35.149  Discrimination prohibited.

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



Sec. 35.150  Existing facilities.

    (a) General. A public entity shall operate each service, program, or 
activity so that the service, program, or activity, when viewed in its 
entirety, is readily accessible to and usable by individuals with 
disabilities. This paragraph does not--
    (1) Necessarily require a public entity to make each of its existing 
facilities accessible to and usable by individuals with disabilities;
    (2) Require a public entity to take any action that would threaten 
or destroy the historic significance of an historic property; or
    (3) Require a public entity to take any action that it can 
demonstrate would result in a fundamental alteration in the nature of a 
service, program, or activity or in undue financial and administrative 
burdens. In those circumstances where personnel of the public entity 
believe that the proposed action would fundamentally alter the service, 
program, or activity or would result in undue financial and 
administrative burdens, a public entity has the burden of proving that 
compliance with Sec. 35.150(a) of this part would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the head of a public entity or his 
or her designee after considering all resources available for use in the 
funding and operation of the service, program, or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, a public entity shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that individuals with disabilities receive the benefits or 
services provided by the public entity.
    (b) Methods--(1) General. A public entity may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock or other 
conveyances, or any other methods that result in making its services, 
programs, or activities readily accessible to and usable by individuals 
with disabilities. A public entity is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. A public entity, in making 
alterations to existing buildings, shall meet the accessibility 
requirements of Sec. 35.151. In choosing among available methods for 
meeting the requirements of this section, a public entity shall give 
priority to those methods that offer services, programs, and activities 
to qualified individuals with disabilities in the most integrated 
setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 35.150(a) in historic preservation programs, a public entity shall 
give priority to methods that provide physical access to individuals 
with disabilities. In cases where a physical alteration to an historic 
property is not required because of paragraph (a)(2) or (a)(3) of this 
section, alternative methods of achieving program accessibility include-
-
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.

[[Page 512]]

    (c) Time period for compliance. Where structural changes in 
facilities are undertaken to comply with the obligations established 
under this section, such changes shall be made within three years of 
January 26, 1992, but in any event as expeditiously as possible.
    (d) Transition plan. (1) In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, a public 
entity that employs 50 or more persons shall develop, within six months 
of January 26, 1992, a transition plan setting forth the steps necessary 
to complete such changes. A public entity shall provide an opportunity 
to interested persons, including individuals with disabilities or 
organizations representing individuals with disabilities, to participate 
in the development of the transition plan by submitting comments. A copy 
of the transition plan shall be made available for public inspection.
    (2) If a public entity has responsibility or authority over streets, 
roads, or walkways, its transition plan shall include a schedule for 
providing curb ramps or other sloped areas where pedestrian walks cross 
curbs, giving priority to walkways serving entities covered by the Act, 
including State and local government offices and facilities, 
transportation, places of public accommodation, and employers, followed 
by walkways serving other areas.
    (3) The plan shall, at a minimum--
    (i) Identify physical obstacles in the public entity's facilities 
that limit the accessibility of its programs or activities to 
individuals with disabilities;
    (ii) Describe in detail the methods that will be used to make the 
facilities accessible;
    (iii) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (iv) Indicate the official responsible for implementation of the 
plan.
    (4) If a public entity has already complied with the transition plan 
requirement of a Federal agency regulation implementing section 504 of 
the Rehabilitation Act of 1973, then the requirements of this paragraph 
(d) shall apply only to those policies and practices that were not 
included in the previous transition plan.

(Approved by the Office of Management and Budget under control number 
1190-0004)

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]



Sec. 35.151  New construction and alterations.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a public entity shall be 
designed and constructed in such manner that the facility or part of the 
facility is readily accessible to and usable by individuals with 
disabilities, if the construction was commenced after January 26, 1992.
    (b) Alteration. Each facility or part of a facility altered by, on 
behalf of, or for the use of a public entity in a manner that affects or 
could affect the usability of the facility or part of the facility 
shall, to the maximum extent feasible, be altered in such manner that 
the altered portion of the facility is readily accessible to and usable 
by individuals with disabilities, if the alteration was commenced after 
January 26, 1992.
    (c) Accessibility standards. Design, construction, or alteration of 
facilities in conformance with the Uniform Federal Accessibility 
Standards (UFAS) (appendix A to 41 CFR part 101-19.6) or with the 
Americans with Disabilities Act Accessibility Guidelines for Buildings 
and Facilities (ADAAG) (appendix A to 28 CFR part 36) shall be deemed to 
comply with the requirements of this section with respect to those 
facilities, except that the elevator exemption contained at section 
4.1.3(5) and section 4.1.6(1)(k) of ADAAG shall not apply. Departures 
from particular requirements of either standard by the use of other 
methods shall be permitted when it is clearly evident that equivalent 
access to the facility or part of the facility is thereby provided.
    (d) Alterations: Historic properties. (1) Alterations to historic 
properties shall comply, to the maximum extent feasible, with section 
4.1.7 of UFAS or section 4.1.7 of ADAAG.
    (2) If it is not feasible to provide physical access to an historic 
property in a manner that will not threaten or

[[Page 513]]

destroy the historic significance of the building or facility, 
alternative methods of access shall be provided pursuant to the 
requirements of Sec. 35.150.
    (e) Curb ramps. (1) Newly constructed or altered streets, roads, and 
highways must contain curb ramps or other sloped areas at any 
intersection having curbs or other barriers to entry from a street level 
pedestrian walkway.
    (2) Newly constructed or altered street level pedestrian walkways 
must contain curb ramps or other sloped areas at intersections to 
streets, roads, or highways.

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]



Secs. 35.152-35.159  [Reserved]



                        Subpart E--Communications



Sec. 35.160  General.

    (a) A public entity shall take appropriate steps to ensure that 
communications with applicants, participants, and members of the public 
with disabilities are as effective as communications with others.
    (b)(1) A public entity shall furnish appropriate auxiliary aids and 
services where necessary to afford an individual with a disability an 
equal opportunity to participate in, and enjoy the benefits of, a 
service, program, or activity conducted by a public entity.
    (2) In determining what type of auxiliary aid and service is 
necessary, a public entity shall give primary consideration to the 
requests of the individual with disabilities.



Sec. 35.161  Telecommunication devices for the deaf (TDD's).

    Where a public entity communicates by telephone with applicants and 
beneficiaries, TDD's or equally effective telecommunication systems 
shall be used to communicate with individuals with impaired hearing or 
speech.



Sec. 35.162  Telephone emergency services.

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



Sec. 35.163  Information and signage.

    (a) A public entity shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (b) A public entity shall provide signage at all inaccessible 
entrances to each of its facilities, directing users to an accessible 
entrance or to a location at which they can obtain information about 
accessible facilities. The international symbol for accessibility shall 
be used at each accessible entrance of a facility.



Sec. 35.164  Duties.

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

[[Page 514]]



Secs. 35.165-35.169  [Reserved]



                    Subpart F--Compliance Procedures



Sec. 35.170  Complaints.

    (a) Who may file. An individual who believes that he or she or a 
specific class of individuals has been subjected to discrimination on 
the basis of disability by a public entity may, by himself or herself or 
by an authorized representative, file a complaint under this part.
    (b) Time for filing. A complaint must be filed not later than 180 
days from the date of the alleged discrimination, unless the time for 
filing is extended by the designated agency for good cause shown. A 
complaint is deemed to be filed under this section on the date it is 
first filed with any Federal agency.
    (c) Where to file. An individual may file a complaint with any 
agency that he or she believes to be the appropriate agency designated 
under subpart G of this part, or with any agency that provides funding 
to the public entity that is the subject of the complaint, or with the 
Department of Justice for referral as provided in Sec. 35.171(a)(2).



Sec. 35.171  Acceptance of complaints.

    (a) Receipt of complaints. (1)(i) Any Federal agency that receives a 
complaint of discrimination on the basis of disability by a public 
entity shall promptly review the complaint to determine whether it has 
jurisdiction over the complaint under section 504.
    (ii) If the agency does not have section 504 jurisdiction, it shall 
promptly determine whether it is the designated agency under subpart G 
of this part responsible for complaints filed against that public 
entity.
    (2)(i) If an agency other than the Department of Justice determines 
that it does not have section 504 jurisdiction and is not the designated 
agency, it shall promptly refer the complaint, and notify the 
complainant that it is referring the complaint to the Department of 
Justice.
    (ii) When the Department of Justice receives a complaint for which 
it does not have jurisdiction under section 504 and is not the 
designated agency, it shall refer the complaint to an agency that does 
have jurisdiction under section 504 or to the appropriate agency 
designated in subpart G of this part or, in the case of an employment 
complaint that is also subject to title I of the Act, to the Equal 
Employment Opportunity Commission.
    (3)(i) If the agency that receives a complaint has section 504 
jurisdiction, it shall process the complaint according to its procedures 
for enforcing section 504.
    (ii) If the agency that receives a complaint does not have section 
504 jurisdiction, but is the designated agency, it shall process the 
complaint according to the procedures established by this subpart.
    (b) Employment complaints. (1) If a complaint alleges employment 
discrimination subject to title I of the Act, and the agency has section 
504 jurisdiction, the agency shall follow the procedures issued by the 
Department of Justice and the Equal Employment Opportunity Commission 
under section 107(b) of the Act.
    (2) If a complaint alleges employment discrimination subject to 
title I of the Act, and the designated agency does not have section 504 
jurisdiction, the agency shall refer the complaint to the Equal 
Employment Opportunity Commission for processing under title I of the 
Act.
    (3) Complaints alleging employment discrimination subject to this 
part, but not to title I of the Act shall be processed in accordance 
with the procedures established by this subpart.
    (c) Complete complaints. (1) A designated agency shall accept all 
complete complaints under this section and shall promptly notify the 
complainant and the public entity of the receipt and acceptance of the 
complaint.
    (2) If the designated agency receives a complaint that is not 
complete, it shall notify the complainant and specify the additional 
information that is needed to make the complaint a complete complaint. 
If the complainant fails to complete the complaint, the designated 
agency shall close the complaint without prejudice.

[[Page 515]]



Sec. 35.172  Resolution of complaints.

    (a) The designated agency shall investigate each complete complaint, 
attempt informal resolution, and, if resolution is not achieved, issue 
to the complainant and the public entity a Letter of Findings that shall 
include--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) Notice of the rights available under paragraph (b) of this 
section.
    (b) If the designated agency finds noncompliance, the procedures in 
Secs. 35.173 and 35.174 shall be followed. At any time, the complainant 
may file a private suit pursuant to section 203 of the Act, whether or 
not the designated agency finds a violation.



Sec. 35.173  Voluntary compliance agreements.

    (a) When the designated agency issues a noncompliance Letter of 
Findings, the designated agency shall--
    (1) Notify the Assistant Attorney General by forwarding a copy of 
the Letter of Findings to the Assistant Attorney General; and
    (2) Initiate negotiations with the public entity to secure 
compliance by voluntary means.
    (b) Where the designated agency is able to secure voluntary 
compliance, the voluntary compliance agreement shall--
    (1) Be in writing and signed by the parties;
    (2) Address each cited violation;
    (3) Specify the corrective or remedial action to be taken, within a 
stated period of time, to come into compliance;
    (4) Provide assurance that discrimination will not recur; and
    (5) Provide for enforcement by the Attorney General.



Sec. 35.174  Referral.

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



Sec. 35.175  Attorney's fees.

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



Sec. 35.176  Alternative means of dispute resolution.

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



Sec. 35.177  Effect of unavailability of technical assistance.

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



Sec. 35.178  State immunity.

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



Secs. 35.179-35.189  [Reserved]



                     Subpart G--Designated Agencies



Sec. 35.190  Designated agencies.

    (a) The Assistant Attorney General shall coordinate the compliance 
activities of Federal agencies with respect to

[[Page 516]]

State and local government components, and shall provide policy guidance 
and interpretations to designated agencies to ensure the consistent and 
effective implementation of the requirements of this part.
    (b) The Federal agencies listed in paragraph (b) (1) through (8) of 
this section shall have responsibility for the implementation of subpart 
F of this part for components of State and local governments that 
exercise responsibilities, regulate, or administer services, programs, 
or activities in the following functional areas.
    (1) Department of Agriculture: All programs, services, and 
regulatory activities relating to farming and the raising of livestock, 
including extension services.
    (2) Department of Education: All programs, services, and regulatory 
activities relating to the operation of elementary and secondary 
education systems and institutions, institutions of higher education and 
vocational education (other than schools of medicine, dentistry, 
nursing, and other health-related schools), and libraries.
    (3) Department of Health and Human Services: All programs, services, 
and regulatory activities relating to the provision of health care and 
social services, including schools of medicine, dentistry, nursing, and 
other health-related schools, the operation of health care and social 
service providers and institutions, including ``grass-roots'' and 
community services organizations and programs, and preschool and daycare 
programs.
    (4) Department of Housing and Urban Development: All programs, 
services, and regulatory activities relating to state and local public 
housing, and housing assistance and referral.
    (5) Department of Interior: All programs, services, and regulatory 
activities relating to lands and natural resources, including parks and 
recreation, water and waste management, environmental protection, 
energy, historic and cultural preservation, and museums.
    (6) Department of Justice: All programs, services, and regulatory 
activities relating to law enforcement, public safety, and the 
administration of justice, including courts and correctional 
institutions; commerce and industry, including general economic 
development, banking and finance, consumer protection, insurance, and 
small business; planning, development, and regulation (unless assigned 
to other designated agencies); state and local government support 
services (e.g., audit, personnel, comptroller, administrative services); 
all other government functions not assigned to other designated 
agencies.
    (7) Department of Labor: All programs, services, and regulatory 
activities relating to labor and the work force.
    (8) Department of Transportation: All programs, services, and 
regulatory activities relating to transportation, including highways, 
public transportation, traffic management (non-law enforcement), 
automobile licensing and inspection, and driver licensing.
    (c) Responsibility for the implementation of subpart F of this part 
for components of State or local governments that exercise 
responsibilities, regulate, or administer services, programs, or 
activities relating to functions not assigned to specific designated 
agencies by paragraph (b) of this section may be assigned to other 
specific agencies by the Department of Justice.
    (d) If two or more agencies have apparent responsibility over a 
complaint, the Assistant Attorney General shall determine which one of 
the agencies shall be the designated agency for purposes of that 
complaint.



Secs. 35.191-35.999  [Reserved]

 Appendix A to Part 35--Preamble to Regulation on Nondiscrimination on 
     the Basis of Disability in State and Local Government Services 
                        (Published July 26, 1991)

    Note: For the convenience of the reader, this appendix contains the 
text of the preamble to the final regulation on nondiscrimination on the 
basis of disability in State and local government services beginning at 
the heading ``Section-by-Section Analysis'' and ending before ``List of 
Subjects in 28 CFR Part 35'' (56 FR 35696, July 26, 1991).

[[Page 517]]

                       Section-by-Section Analysis

                           Subpart A--General

                         Section 35.101  Purpose

    Section 35.101 states the purpose of the rule, which is to 
effectuate subtitle A of title II of the Americans with Disabilities Act 
of 1990 (the Act), which prohibits discrimination on the basis of 
disability by public entities. This part does not, however, apply to 
matters within the scope of the authority of the Secretary of 
Transportation under subtitle B of title II of the Act.

                       Section 35.102  Application

    This provision specifies that, except as provided in paragraph (b), 
the regulation applies to all services, programs, and activities 
provided or made available by public entities, as that term is defined 
in Sec. 35.104. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 
794), which prohibits discrimination on the basis of handicap in 
federally assisted programs and activities, already covers those 
programs and activities of public entities that receive Federal 
financial assistance. Title II of the ADA extends this prohibition of 
discrimination to include all services, programs, and activities 
provided or made available by State and local governments or any of 
their instrumentalities or agencies, regardless of the receipt of 
Federal financial assistance. Except as provided in Sec. 35.l34, this 
part does not apply to private entities.
    The scope of title II's coverage of public entities is comparable to 
the coverage of Federal Executive agencies under the 1978 amendment to 
section 504, which extended section 504's application to all programs 
and activities ``conducted by'' Federal Executive agencies, in that 
title II applies to anything a public entity does. Title II coverage, 
however, is not limited to ``Executive'' agencies, but includes 
activities of the legislative and judicial branches of State and local 
governments. All governmental activities of public entities are covered, 
even if they are carried out by contractors. For example, a State is 
obligated by title II to ensure that the services, programs, and 
activities of a State park inn operated under contract by a private 
entity are in compliance with title II's requirements. The private 
entity operating the inn would also be subject to the obligations of 
public accommodations under title III of the Act and the Department's 
title III regulations at 28 CFR part 36.
    Aside from employment, which is also covered by title I of the Act, 
there are two major categories of programs or activities covered by this 
regulation: those involving general public contact as part of ongoing 
operations of the entity and those directly administered by the entities 
for program beneficiaries and participants. Activities in the first 
category include communication with the public (telephone contacts, 
office walk-ins, or interviews) and the public's use of the entity's 
facilities. Activities in the second category include programs that 
provide State or local government services or benefits.
    Paragraph (b) of Sec. 35.102 explains that to the extent that the 
public transportation services, programs, and activities of public 
entities are covered by subtitle B of title II of the Act, they are 
subject to the regulation of the Department of Transportation (DOT) at 
49 CFR part 37, and are not covered by this part. The Department of 
Transportation's ADA regulation establishes specific requirements for 
construction of transportation facilities and acquisition of vehicles. 
Matters not covered by subtitle B, such as the provision of auxiliary 
aids, are covered by this rule. For example, activities that are covered 
by the Department of Transportation's regulation implementing subtitle B 
are not required to be included in the self-evaluation required by 
Sec. 35.105. In addition, activities not specifically addressed by DOT's 
ADA regulation may be covered by DOT's regulation implementing section 
504 for its federally assisted programs and activities at 49 CFR part 
27. Like other programs of public entities that are also recipients of 
Federal financial assistance, those programs would be covered by both 
the section 504 regulation and this part. Although airports operated by 
public entities are not subject to DOT's ADA regulation, they are 
subject to subpart A of title II and to this rule.
    Some commenters asked for clarification about the responsibilities 
of public school systems under section 504 and the ADA with respect to 
programs, services, and activities that are not covered by the 
Individuals with Disabilities Education Act (IDEA), including, for 
example, programs open to parents or to the public, graduation 
ceremonies, parent-teacher organization meetings, plays and other events 
open to the public, and adult education classes. Public school systems 
must comply with the ADA in all of their services, programs, or 
activities, including those that are open to parents or to the public. 
For instance, public school systems must provide program accessibility 
to parents and guardians with disabilities to these programs, 
activities, or services, and appropriate auxiliary aids and services 
whenever necessary to ensure effective communication, as long as the 
provision of the auxiliary aids results neither in an undue burden or in 
a fundamental alteration of the program.

               Section 35.103  Relationship to Other Laws

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

[[Page 518]]

the ADA is not intended to apply lesser standards than are required 
under title V of the Rehabilitation Act of 1973, as amended (29 U.S.C. 
790-94), or the regulations implementing that title. The standards of 
title V of the Rehabilitation Act apply for purposes of the ADA to the 
extent that the ADA has not explicitly adopted a different standard than 
title V. Because title II of the ADA essentially extends the 
antidiscrimination prohibition embodied in section 504 to all actions of 
State and local governments, the standards adopted in this part are 
generally the same as those required under section 504 for federally 
assisted programs. Title II, however, also incorporates those provisions 
of titles I and III of the ADA that are not inconsistent with the 
regulations implementing section 504. Judiciary Committee report, H.R. 
Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 51 (1990) (hereinafter 
``Judiciary report'') ; Education and Labor Committee report, H.R. Rep. 
No. 485, 101st Cong., 2d Sess., pt. 2, at 84 (1990) (hereinafter 
``Education and Labor report''). Therefore, this part also includes 
appropriate provisions derived from the regulations implementing those 
titles. The inclusion of specific language in this part, however, should 
not be interpreted as an indication that a requirement is not included 
under a regulation implementing section 504.
    Paragraph (b) makes clear that Congress did not intend to displace 
any of the rights or remedies provided by other Federal laws (including 
section 504) or other State laws (including State common law) that 
provide greater or equal protection to individuals with disabilities. As 
discussed above, the standards adopted by title II of the ADA for State 
and local government services are generally the same as those required 
under section 504 for federally assisted programs and activities. 
Subpart F of the regulation establishes compliance procedures for 
processing complaints covered by both this part and section 504.
    With respect to State law, a plaintiff may choose to pursue claims 
under a State law that does not confer greater substantive rights, or 
even confers fewer substantive rights, if the alleged violation is 
protected under the alternative law and the remedies are greater. For 
example, a person with a physical disability could seek damages under a 
State law that allows compensatory and punitive damages for 
discrimination on the basis of physical disability, but not on the basis 
of mental disability. In that situation, the State law would provide 
narrower coverage, by excluding mental disabilities, but broader 
remedies, and an individual covered by both laws could choose to bring 
an action under both laws. Moreover, State tort claims confer greater 
remedies and are not preempted by the ADA. A plaintiff may join a State 
tort claim to a case brought under the ADA. In such a case, the 
plaintiff must, of course, prove all the elements of the State tort 
claim in order to prevail under that cause of action.

                       Section 35.104  Definitions

    ``Act.'' The word ``Act'' is used in this part to refer to the 
Americans with Disabilities Act of 1990, Public Law 101-336, which is 
also referred to as the ``ADA.''
    ``Assistant Attorney General.'' The term ``Assistant Attorney 
General'' refers to the Assistant Attorney General of the Civil Rights 
Division of the Department of Justice.
    ``Auxiliary aids and services.'' Auxiliary aids and services include 
a wide range of services and devices for ensuring effective 
communication. The proposed definition in Sec. 35.104 provided a list of 
examples of auxiliary aids and services that were taken from the 
definition of auxiliary aids and services in section 3(1) of the ADA and 
were supplemented by examples from regulations implementing section 504 
in federally conducted programs (see 28 CFR 39.103).
    A substantial number of commenters suggested that additional 
examples be added to this list. The Department has added several items 
to this list but wishes to clarify that the list is not an all-inclusive 
or exhaustive catalogue of possible or available auxiliary aids or 
services. It is not possible to provide an exhaustive list, and an 
attempt to do so would omit the new devices that will become available 
with emerging technology.
    Subparagraph (1) lists several examples, which would be considered 
auxiliary aids and services to make aurally delivered materials 
available to individuals with hearing impairments. The Department has 
changed the phrase used in the proposed rules, ``orally delivered 
materials,'' to the statutory phrase, ``aurally delivered materials,'' 
to track section 3 of the ADA and to include non-verbal sounds and 
alarms, and computer generated speech.
    The Department has added videotext displays, transcription services, 
and closed and open captioning to the list of examples. Videotext 
displays have become an important means of accessing auditory 
communications through a public address system. Transcription services 
are used to relay aurally delivered material almost simultaneously in 
written form to persons who are deaf or hearing-impaired. This 
technology is often used at conferences, conventions, and hearings. 
While the proposed rule expressly included television decoder equipment 
as an auxiliary aid or service, it did not mention captioning itself. 
The final rule rectifies this omission by mentioning both closed and 
open captioning.
    Several persons and organizations requested that the Department 
replace the term ``telecommunications devices for deaf

[[Page 519]]

persons'' or ``TDD's'' with the term ``text telephone.'' The Department 
has declined to do so. The Department is aware that the Architectural 
and Transportation Barriers Compliance Board (ATBCB) has used the phrase 
``text telephone'' in lieu of the statutory term ``TDD'' in its final 
accessibility guidelines. Title IV of the ADA, however, uses the term 
``Telecommunications Device for the Deaf'' and the Department believes 
it would be inappropriate to abandon this statutory term at this time.
    Several commenters urged the Department to include in the definition 
of ``auxiliary aids and services'' devices that are now available or 
that may become available with emerging technology. The Department 
declines to do so in the rule. The Department, however, emphasizes that, 
although the definition would include ``state of the art'' devices, 
public entities are not required to use the newest or most advanced 
technologies as long as the auxiliary aid or service that is selected 
affords effective communication.
    Subparagraph (2) lists examples of aids and services for making 
visually delivered materials accessible to persons with visual 
impairments. Many commenters proposed additional examples, such as 
signage or mapping, audio description services, secondary auditory 
programs, telebraillers, and reading machines. While the Department 
declines to add these items to the list, they are auxiliary aids and 
services and may be appropriate depending on the circumstances.
    Subparagraph (3) refers to acquisition or modification of equipment 
or devices. Several commenters suggested the addition of current 
technological innovations in microelectronics and computerized control 
systems (e.g., voice recognition systems, automatic dialing telephones, 
and infrared elevator and light control systems) to the list of 
auxiliary aids. The Department interprets auxiliary aids and services as 
those aids and services designed to provide effective communications, 
i.e., making aurally and visually delivered information available to 
persons with hearing, speech, and vision impairments. Methods of making 
services, programs, or activities accessible to, or usable by, 
individuals with mobility or manual dexterity impairments are addressed 
by other sections of this part, including the provision for 
modifications in policies, practices, or procedures (Sec. 35.130 
(b)(7)).
    Paragraph (b)(4) deals with other similar services and actions. 
Several commenters asked for clarification that ``similar services and 
actions'' include retrieving items from shelves, assistance in reaching 
a marginally accessible seat, pushing a barrier aside in order to 
provide an accessible route, or assistance in removing a sweater or 
coat. While retrieving an item from a shelf might be an ``auxiliary aid 
or service'' for a blind person who could not locate the item without 
assistance, it might be a method of providing program access for a 
person using a wheelchair who could not reach the shelf, or a reasonable 
modification to a self-service policy for an individual who lacked the 
ability to grasp the item. As explained above, auxiliary aids and 
services are those aids and services required to provide effective 
communications. Other forms of assistance are more appropriately 
addressed by other provisions of the final rule.
    ``Complete complaint.'' ``Complete complaint'' is defined to include 
all the information necessary to enable the Federal agency designated 
under subpart G as responsible for investigation of a complaint to 
initiate its investigation.
    ``Current illegal use of drugs.'' The phrase ``current illegal use 
of drugs'' is used in Sec. 35.131. Its meaning is discussed in the 
preamble for that section.
    ``Designated agency.'' The term ``designated agency'' is used to 
refer to the Federal agency designated under subpart G of this rule as 
responsible for carrying out the administrative enforcement 
responsibilities established by subpart F of the rule.
    ``Disability.'' The definition of the term ``disability'' is the 
same as the definition in the title III regulation codified at 28 CFR 
part 36. It is comparable to the definition of the term ``individual 
with handicaps'' in section 7(8) of the Rehabilitation Act and section 
802(h) of the Fair Housing Act. The Education and Labor Committee report 
makes clear that the analysis of the term ``individual with handicaps'' 
by the Department of Health, Education, and Welfare (HEW) in its 
regulations implementing section 504 (42 FR 22685 (May 4, 1977)) and the 
analysis by the Department of Housing and Urban Development in its 
regulation implementing the Fair Housing Amendments Act of 1988 (54 FR 
3232 (Jan. 23, 1989)) should also apply fully to the term ``disability'' 
(Education and Labor report at 50).
    The use of the term ``disability'' instead of ``handicap'' and the 
term ``individual with a disability'' instead of ``individual with 
handicaps'' represents an effort by Congress to make use of up-to-date, 
currently accepted terminology. As with racial and ethnic epithets, the 
choice of terms to apply to a person with a disability is overlaid with 
stereotypes, patronizing attitudes, and other emotional connotations. 
Many individuals with disabilities, and organizations representing such 
individuals, object to the use of such terms as ``handicapped person'' 
or ``the handicapped.'' In other recent legislation, Congress also 
recognized this shift in terminology, e.g., by changing the name of the 
National Council on the Handicapped to the National Council on 
Disability (Pub. L. 100-630).

[[Page 520]]

    In enacting the Americans with Disabilities Act, Congress concluded 
that it was important for the current legislation to use terminology 
most in line with the sensibilities of most Americans with disabilities. 
No change in definition or substance is intended nor should one be 
attributed to this change in phraseology.
    The term ``disability'' means, with respect to an individual--
    (A) A physical or mental impairment that substantially limits one or 
more of the major life activities of such individual;
    (B) A record of such an impairment; or
    (C) Being regarded as having such an impairment. If an individual 
meets any one of these three tests, he or she is considered to be an 
individual with a disability for purposes of coverage under the 
Americans with Disabilities Act.
    Congress adopted this same basic definition of ``disability,'' first 
used in the Rehabilitation Act of 1973 and in the Fair Housing 
Amendments Act of 1988, for a number of reasons. First, it has worked 
well since it was adopted in 1974. Second, it would not be possible to 
guarantee comprehensiveness by providing a list of specific 
disabilities, especially because new disorders may be recognized in the 
future, as they have since the definition was first established in 1974.

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

    Physical or mental impairment. Under the first test, an individual 
must have a physical or mental impairment. As explained in paragraph 
(1)(i) of the definition, ``impairment'' means any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: neurological; 
musculoskeletal; special sense organs (which would include speech organs 
that are not respiratory such as vocal cords, soft palate, tongue, 
etc.); respiratory, including speech organs; cardiovascular; 
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and 
endocrine. It also means any mental or psychological disorder, such as 
mental retardation, organic brain syndrome, emotional or mental illness, 
and specific learning disabilities. This list closely tracks the one 
used in the regulations for section 504 of the Rehabilitation Act of 
1973 (see, e.g., 45 CFR 84.3(j)(2)(i)).
    Many commenters asked that ``traumatic brain injury'' be added to 
the list in paragraph (1)(i). Traumatic brain injury is already included 
because it is a physiological condition affecting one of the listed body 
systems, i.e., ``neurological.'' Therefore, it was unnecessary to add 
the term to the regulation, which only provides representative examples 
of physiological disorders.
    It is not possible to include a list of all the specific conditions, 
contagious and noncontagious diseases, or infections that would 
constitute physical or mental impairments because of the difficulty of 
ensuring the comprehensiveness of such a list, particularly in light of 
the fact that other conditions or disorders may be identified in the 
future. However, the list of examples in paragraph (1)(ii) of the 
definition includes: orthopedic, visual, speech and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
specific learning disabilities, HIV disease (symptomatic or 
asymptomatic), tuberculosis, drug addiction, and alcoholism. The phrase 
``symptomatic or asymptomatic'' was inserted in the final rule after 
``HIV disease'' in response to commenters who suggested the 
clarification was necessary.
    The examples of ``physical or mental impairments'' in paragraph 
(1)(ii) are the same as those contained in many section 504 regulations, 
except for the addition of the phrase ``contagious and noncontagious'' 
to describe the types of diseases and conditions included, and the 
addition of ``HIV disease (symptomatic or asymptomatic)'' and 
``tuberculosis'' to the list of examples. These additions are based on 
the committee reports, caselaw, and official legal opinions interpreting 
section 504. In School Board of Nassau County v. Arline, 480 U.S. 273 
(1987), a case involving an individual with tuberculosis, the Supreme 
Court held that people with contagious diseases are entitled to the 
protections afforded by section 504. Following the Arline decision, this 
Department's Office of Legal Counsel issued a legal opinion that 
concluded that symptomatic HIV disease is an impairment that 
substantially limits a major life activity; therefore it has been 
included in the definition of disability under this part. The opinion 
also concluded that asymptomatic HIV disease is an impairment that 
substantially limits a major life activity, either because of its actual 
effect on the individual with HIV disease or because the reactions of 
other people to individuals with HIV disease cause such individuals to 
be treated as though they are disabled. See Memorandum from Douglas W. 
Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, 
Department of Justice, to Arthur B. Culvahouse, Jr., Counsel to the 
President (Sept. 27, 1988), reprinted in Hearings on S. 933, the 
Americans with Disabilities Act, Before the Subcomm. on the Handicapped 
of the Senate Comm. on Labor and Human Resources, 101st. Cong., 1st 
Sess. 346 (1989).
    Paragraph (1)(iii) states that the phrase ``physical or mental 
impairment'' does not include homosexuality or bisexuality. These

[[Page 521]]

conditions were never considered impairments under other Federal 
disability laws. Section 511(a) of the statute makes clear that they are 
likewise not to be considered impairments under the Americans with 
Disabilities Act.
    Physical or mental impairment does not include simple physical 
characteristics, such as blue eyes or black hair. Nor does it include 
environmental, cultural, economic, or other disadvantages, such as 
having a prison record, or being poor. Nor is age a disability. 
Similarly, the definition does not include common personality traits 
such as poor judgment or a quick temper where these are not symptoms of 
a mental or psychological disorder. However, a person who has these 
characteristics and also has a physical or mental impairment may be 
considered as having a disability for purposes of the Americans with 
Disabilities Act based on the impairment.
    Substantial Limitation of a Major Life Activity. Under Test A, the 
impairment must be one that ``substantially limits a major life 
activity.'' Major life activities include such things as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    For example, a person who is paraplegic is substantially limited in 
the major life activity of walking, a person who is blind is 
substantially limited in the major life activity of seeing, and a person 
who is mentally retarded is substantially limited in the major life 
activity of learning. A person with traumatic brain injury is 
substantially limited in the major life activities of caring for one's 
self, learning, and working because of memory deficit, confusion, 
contextual difficulties, and inability to reason appropriately.
    A person is considered an individual with a disability for purposes 
of Test A, the first prong of the definition, when the individual's 
important life activities are restricted as to the conditions, manner, 
or duration under which they can be performed in comparison to most 
people. A person with a minor, trivial impairment, such as a simple 
infected finger, is not impaired in a major life activity. A person who 
can walk for 10 miles continuously is not substantially limited in 
walking merely because, on the eleventh mile, he or she begins to 
experience pain, because most people would not be able to walk eleven 
miles without experiencing some discomfort.
    The Department received many comments on the proposed rule's 
inclusion of the word ``temporary'' in the definition of ``disability.'' 
The preamble indicated that impairments are not necessarily excluded 
from the definition of ``disability'' simply because they are temporary, 
but that the duration, or expected duration, of an impairment is one 
factor that may properly be considered in determining whether the 
impairment substantially limits a major life activity. The preamble 
recognized, however, that temporary impairments, such as a broken leg, 
are not commonly regarded as disabilities, and only in rare 
circumstances would the degree of the limitation and its expected 
duration be substantial. Nevertheless, many commenters objected to 
inclusion of the word ``temporary'' both because it is not in the 
statute and because it is not contained in the definition of 
``disability'' set forth in the title I regulations of the Equal 
Employment Opportunity Commission (EEOC). The word ``temporary'' has 
been deleted from the final rule to conform with the statutory language.
    The question of whether a temporary impairment is a disability must 
be resolved on a case-by-case basis, taking into consideration both the 
duration (or expected duration) of the impairment and the extent to 
which it actually limits a major life activity of the affected 
individual.
    The question of whether a person has a disability should be assessed 
without regard to the availability of mitigating measures, such as 
reasonable modification or auxiliary aids and services. For example, a 
person with hearing loss is substantially limited in the major life 
activity of hearing, even though the loss may be improved through the 
use of a hearing aid. Likewise, persons with impairments, such as 
epilepsy or diabetes, that substantially limit a major life activity, 
are covered under the first prong of the definition of disability, even 
if the effects of the impairment are controlled by medication.
    Many commenters asked that environmental illness (also known as 
multiple chemical sensitivity) as well as allergy to cigarette smoke be 
recognized as disabilities. The Department, however, declines to state 
categorically that these types of allergies or sensitivities are 
disabilities, because the determination as to whether an impairment is a 
disability depends on whether, given the particular circumstances at 
issue, the impairment substantially limits one or more major life 
activities (or has a history of, or is regarded as having such an 
effect).
    Sometimes respiratory or neurological functioning is so severely 
affected that an individual will satisfy the requirements to be 
considered disabled under the regulation. Such an individual would be 
entitled to all of the protections afforded by the Act and this part. In 
other cases, individuals may be sensitive to environmental elements or 
to smoke but their sensitivity will not rise to the level needed to 
constitute a disability. For example, their major life activity of 
breathing may be somewhat, but not substantially, impaired. In such 
circumstances, the individuals are not disabled and are not entitled to 
the protections of the statute despite their sensitivity to 
environmental agents.

[[Page 522]]

    In sum, the determination as to whether allergies to cigarette 
smoke, or allergies or sensitivities characterized by the commenters as 
environmental illness are disabilities covered by the regulation must be 
made using the same case-by-case analysis that is applied to all other 
physical or mental impairments. Moreover, the addition of specific 
regulatory provisions relating to environmental illness in the final 
rule would be inappropriate at this time pending future consideration of 
the issue by the Architectural and Transportation Barriers Compliance 
Board, the Environmental Protection Agency, and the Occupational Safety 
and Health Administration of the Department of Labor.

                 Test B--A record of such an impairment

    This test is intended to cover those who have a record of an 
impairment. As explained in paragraph (3) of the rule's definition of 
disability, this includes a person who has a history of an impairment 
that substantially limited a major life activity, such as someone who 
has recovered from an impairment. It also includes persons who have been 
misclassified as having an impairment.
    This provision is included in the definition in part to protect 
individuals who have recovered from a physical or mental impairment that 
previously substantially limited them in a major life activity. 
Discrimination on the basis of such a past impairment is prohibited. 
Frequently occurring examples of the first group (those who have a 
history of an impairment) are persons with histories of mental or 
emotional illness, heart disease, or cancer; examples of the second 
group (those who have been misclassified as having an impairment) are 
persons who have been misclassified as having mental retardation or 
mental illness.

           Test C--Being regarded as having such an impairment

    This test, as contained in paragraph (4) of the definition, is 
intended to cover persons who are treated by a public entity as having a 
physical or mental impairment that substantially limits a major life 
activity. It applies when a person is treated as if he or she has an 
impairment that substantially limits a major life activity, regardless 
of whether that person has an impairment.
    The Americans with Disabilities Act uses the same ``regarded as'' 
test set forth in the regulations implementing section 504 of the 
Rehabilitation Act. See, e.g., 28 CFR 42.540(k)(2)(iv), which provides:
    (iv) ``Is regarded as having an impairment'' means (A) Has a 
physical or mental impairment that does not substantially limit major 
life activities but that is treated by a recipient as constituting such 
a limitation; (B) Has a physical or mental impairment that substantially 
limits major life activities only as a result of the attitudes of others 
toward such impairment; or (C) Has none of the impairments defined in 
paragraph (k)(2)(i) of this section but is treated by a recipient as 
having such an impairment.
    The perception of the covered entity is a key element of this test. 
A person who perceives himself or herself to have an impairment, but 
does not have an impairment, and is not treated as if he or she has an 
impairment, is not protected under this test.
    A person would be covered under this test if a public entity refused 
to serve the person because it perceived that the person had an 
impairment that limited his or her enjoyment of the goods or services 
being offered.
    For example, persons with severe burns often encounter 
discrimination in community activities, resulting in substantial 
limitation of major life activities. These persons would be covered 
under this test based on the attitudes of others towards the impairment, 
even if they did not view themselves as ``impaired.''
    The rationale for this third test, as used in the Rehabilitation Act 
of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273 
(1987). The Court noted that although an individual may have an 
impairment that does not in fact substantially limit a major life 
activity, the reaction of others may prove just as disabling. ``Such an 
impairment might not diminish a person's physical or mental 
capabilities, but could nevertheless substantially limit that person's 
ability to work as a result of the negative reactions of others to the 
impairment.'' Id. at 283. The Court concluded that, by including this 
test in the Rehabilitation Act's definition, ``Congress acknowledged 
that society's accumulated myths and fears about disability and diseases 
are as handicapping as are the physical limitations that flow from 
actual impairment.'' Id. at 284.
    Thus, a person who is denied services or benefits by a public entity 
because of myths, fears, and stereotypes associated with disabilities 
would be covered under this third test whether or not the person's 
physical or mental condition would be considered a disability under the 
first or second test in the definition.
    If a person is refused admittance on the basis of an actual or 
perceived physical or mental condition, and the public entity can 
articulate no legitimate reason for the refusal (such as failure to meet 
eligibility criteria), a perceived concern about admitting persons with 
disabilities could be inferred and the individual would qualify for 
coverage under the ``regarded as'' test. A person who is covered because 
of being regarded as having an impairment is not required to show that 
the public entity's perception is inaccurate (e.g., that he will be 
accepted by others) in order to receive benefits from the public entity.

[[Page 523]]

    Paragraph (5) of the definition lists certain conditions that are 
not included within the definition of ``disability.'' The excluded 
conditions are: Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, other sexual behavior disorders, compulsive gambling, 
kleptomania, pyromania, and psychoactive substance use disorders 
resulting from current illegal use of drugs. Unlike homosexuality and 
bisexuality, which are not considered impairments under either section 
504 or the Americans with Disabilities Act (see the definition of 
``disability,'' paragraph (1)(iv)), the conditions listed in paragraph 
(5), except for transvestism, are not necessarily excluded as 
impairments under section 504. (Transvestism was excluded from the 
definition of disability for section 504 by the Fair Housing Amendments 
Act of 1988, Pub. L. 100-430, section 6(b)).
    ``Drug.'' The definition of the term ``drug'' is taken from section 
510(d)(2) of the ADA.
    ``Facility.'' ``Facility'' means all or any portion of buildings, 
structures, sites, complexes, equipment, rolling stock or other 
conveyances, roads, walks, passageways, parking lots, or other real or 
personal property, including the site where the building, property, 
structure, or equipment is located. It includes both indoor and outdoor 
areas where human-constructed improvements, structures, equipment, or 
property have been added to the natural environment.
    Commenters raised questions about the applicability of this part to 
activities operated in mobile facilities, such as bookmobiles or mobile 
health screening units. Such activities would be covered by the 
requirement for program accessibility in Sec. 35.150, and would be 
included in the definition of ``facility'' as ``other real or personal 
property,'' although standards for new construction and alterations of 
such facilities are not yet included in the accessibility standards 
adopted by Sec. 35.151. Sections 35.150 and 35.151 specifically address 
the obligations of public entities to ensure accessibility by providing 
curb ramps at pedestrian walkways.
    ``Historic preservation programs'' and ``Historic properties'' are 
defined in order to aid in the interpretation of Secs. 35.150 (a)(2) and 
(b)(2), which relate to accessibility of historic preservation programs, 
and Sec. 35.151(d), which relates to the alteration of historic 
properties.
    ``Illegal use of drugs.'' The definition of ``illegal use of drugs'' 
is taken from section 510(d)(1) of the Act and clarifies that the term 
includes the illegal use of one or more drugs.
    ``Individual with a disability'' means a person who has a disability 
but does not include an individual who is currently illegally using 
drugs, when the public entity acts on the basis of such use. The phrase 
``current illegal use of drugs'' is explained in Sec. 35.131.
    ``Public entity.'' The term ``public entity'' is defined in 
accordance with section 201(1) of the ADA as any State or local 
government; any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; or the 
National Railroad Passenger Corporation, and any commuter authority (as 
defined in section 103(8) of the Rail Passenger Service Act).
    ``Qualified individual with a disability.'' The definition of 
``qualified individual with a disability'' is taken from section 201(2) 
of the Act, which is derived from the definition of ``qualified 
handicapped person'' in the Department of Health and Human Services' 
regulation implementing section 504 (45 CFR Sec. 84.3(k)). It combines 
the definition at 45 CFR 84.3(k)(1) for employment (``a handicapped 
person who, with reasonable accommodation, can perform the essential 
functions of the job in question'') with the definition for other 
services at 45 CFR 84.3(k)(4) (``a handicapped person who meets the 
essential eligibility requirements for the receipt of such services'').
    Some commenters requested clarification of the term ``essential 
eligibility requirements.'' Because of the variety of situations in 
which an individual's qualifications will be at issue, it is not 
possible to include more specific criteria in the definition. The 
``essential eligibility requirements'' for participation in some 
activities covered under this part may be minimal. For example, most 
public entities provide information about their operations as a public 
service to anyone who requests it. In such situations, the only 
``eligibility requirement'' for receipt of such information would be the 
request for it. Where such information is provided by telephone, even 
the ability to use a voice telephone is not an ``essential eligibility 
requirement,'' because Sec. 35.161 requires a public entity to provide 
equally effective telecommunication systems for individuals with 
impaired hearing or speech.
    For other activities, identification of the ``essential eligibility 
requirements'' may be more complex. Where questions of safety are 
involved, the principles established in Sec. 36.208 of the Department's 
regulation implementing title III of the ADA, to be codified at 28 CFR, 
part 36, will be applicable. That section implements section 302(b)(3) 
of the Act, which provides that a public accommodation is not required 
to permit an individual to participate in or benefit from the goods, 
services, facilities, privileges, advantages and accommodations of the 
public accommodation, if that individual poses a direct threat to the 
health or safety of others.
    A ``direct threat'' is a significant risk to the health or safety of 
others that cannot be eliminated by a modification of policies, 
practices, or procedures, or by the provision

[[Page 524]]

of auxiliary aids or services. In School Board of Nassau County v. 
Arline, 480 U.S. 273 (1987), the Supreme Court recognized that there is 
a need to balance the interests of people with disabilities against 
legitimate concerns for public safety. Although persons with 
disabilities are generally entitled to the protection of this part, a 
person who poses a significant risk to others will not be ``qualified,'' 
if reasonable modifications to the public entity's policies, practices, 
or procedures will not eliminate that risk.
    The determination that a person poses a direct threat to the health 
or safety of others may not be based on generalizations or stereotypes 
about the effects of a particular disability. It must be based on an 
individualized assessment, based on reasonable judgment that relies on 
current medical evidence or on the best available objective evidence, to 
determine: the nature, duration, and severity of the risk; the 
probability that the potential injury will actually occur; and whether 
reasonable modifications of policies, practices, or procedures will 
mitigate the risk. This is the test established by the Supreme Court in 
Arline. Such an inquiry is essential if the law is to achieve its goal 
of protecting disabled individuals from discrimination based on 
prejudice, stereotypes, or unfounded fear, while giving appropriate 
weight to legitimate concerns, such as the need to avoid exposing others 
to significant health and safety risks. Making this assessment will not 
usually require the services of a physician. Sources for medical 
knowledge include guidance from public health authorities, such as the 
U.S. Public Health Service, the Centers for Disease Control, and the 
National Institutes of Health, including the National Institute of 
Mental Health.
    ``Qualified interpreter.'' The Department received substantial 
comment regarding the lack of a definition of ``qualified interpreter.'' 
The proposed rule defined auxiliary aids and services to include the 
statutory term, ``qualified interpreters'' (Sec. 35.104), but did not 
define it. Section 35.160 requires the use of auxiliary aids including 
qualified interpreters and commenters stated that a lack of guidance on 
what the term means would create confusion among those trying to secure 
interpreting services and often result in less than effective 
communication.
    Many commenters were concerned that, without clear guidance on the 
issue of ``qualified'' interpreter, the rule would be interpreted to 
mean ``available, rather than qualified'' interpreters. Some claimed 
that few public entities would understand the difference between a 
qualified interpreter and a person who simply knows a few signs or how 
to fingerspell.
    In order to clarify what is meant by ``qualified interpreter'' the 
Department has added a definition of the term to the final rule. A 
qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially both receptively and 
expressively, using any necessary specialized vocabulary. This 
definition focuses on the actual ability of the interpreter in a 
particular interpreting context to facilitate effective communication 
between the public entity and the individual with disabilities.
    Public comment also revealed that public entities have at times 
asked persons who are deaf to provide family members or friends to 
interpret. In certain circumstances, notwithstanding that the family 
member of friend is able to interpret or is a certified interpreter, the 
family member or friend may not be qualified to render the necessary 
interpretation because of factors such as emotional or personal 
involvement or considerations of confidentiality that may adversely 
affect the ability to interpret``effectively, accurately, and 
impartially.''
    The definition of ``qualified interpreter'' in this rule does not 
invalidate or limit standards for interpreting services of any State or 
local law that are equal to or more stringent than those imposed by this 
definition. For instance, the definition would not supersede any 
requirement of State law for use of a certified interpreter in court 
proceedings.
    ``Section 504.'' The Department added a definition of ``section 
504'' because the term is used extensively in subpart F of this part.
    ``State.'' The definition of ``State'' is identical to the statutory 
definition in section 3(3) of the ADA.

                     Section 35.105  Self-evaluation

    Section 35.105 establishes a requirement, based on the section 504 
regulations for federally assisted and federally conducted programs, 
that a public entity evaluate its current policies and practices to 
identify and correct any that are not consistent with the requirements 
of this part. As noted in the discussion of Sec. 35.102, activities 
covered by the Department of Transportation's regulation implementing 
subtitle B of title II are not required to be included in the self-
evaluation required by this section.
    Experience has demonstrated the self-evaluation process to be a 
valuable means of establishing a working relationship with individuals 
with disabilities, which has promoted both effective and efficient 
implementation of section 504. The Department expects that it will 
likewise be useful to public entities newly covered by the ADA.
    All public entities are required to do a self-evaluation. However, 
only those that employ 50 or more persons are required to maintain the 
self-evaluation on file and make it available for public inspection for 
three years. The number 50 was derived from the Department of Justice's 
section 504 regulations for federally assisted programs, 28 CFR 
42.505(c). The Department received comments critical

[[Page 525]]

of this limitation, some suggesting the requirement apply to all public 
entities and others suggesting that the number be changed from 50 to 15. 
The final rule has not been changed. Although many regulations 
implementing section 504 for federally assisted programs do use 15 
employees as the cut-off for this record-keeping requirement, the 
Department believes that it would be inappropriate to extend it to those 
smaller public entities covered by this regulation that do not receive 
Federal financial assistance. This approach has the benefit of 
minimizing paperwork burdens on small entities.
    Paragraph (d) provides that the self-evaluation required by this 
section shall apply only to programs not subject to section 504 or those 
policies and practices, such as those involving communications access, 
that have not already been included in a self-evaluation required under 
an existing regulation implementing section 504. Because most self-
evaluations were done from five to twelve years ago, however, the 
Department expects that a great many public entities will be reexamining 
all of their policies and programs. Programs and functions may have 
changed, and actions that were supposed to have been taken to comply 
with section 504 may not have been fully implemented or may no longer be 
effective. In addition, there have been statutory amendments to section 
504 which have changed the coverage of section 504, particularly the 
Civil Rights Restoration Act of 1987, Public Law No. 100-259, 102 Stat. 
28 (1988), which broadened the definition of a covered ``program or 
activity.''
    Several commenters suggested that the Department clarify public 
entities' liability during the one-year period for compliance with the 
self-evaluation requirement. The self-evaluation requirement does not 
stay the effective date of the statute nor of this part. Public entities 
are, therefore, not shielded from discrimination claims during that 
time.
    Other commenters suggested that the rule require that every self-
evaluation include an examination of training efforts to assure that 
individuals with disabilities are not subjected to discrimination 
because of insensitivity, particularly in the law enforcement area. 
Although the Department has not added such a specific requirement to the 
rule, it would be appropriate for public entities to evaluate training 
efforts because, in many cases, lack of training leads to discriminatory 
practices, even when the policies in place are nondiscriminatory.

                         Section 35.106  Notice

    Section 35.106 requires a public entity to disseminate sufficient 
information to applicants, participants, beneficiaries, and other 
interested persons to inform them of the rights and protections afforded 
by the ADA and this regulation. Methods of providing this information 
include, for example, the publication of information in handbooks, 
manuals, and pamphlets that are distributed to the public to describe a 
public entity's programs and activities; the display of informative 
posters in service centers and other public places; or the broadcast of 
information by television or radio. In providing the notice, a public 
entity must comply with the requirements for effective communication in 
Sec. 35.160. The preamble to that section gives guidance on how to 
effectively communicate with individuals with disabilities.

  Section 35.107  Designation of Responsible Employee and Adoption of 
                          Grievance Procedures

    Consistent with Sec. 35.105, self-evaluation, the final rule 
requires that public entities with 50 or more employees designate a 
responsible employee and adopt grievance procedures. Most of the 
commenters who suggested that the requirement that self-evaluation be 
maintained on file for three years not be limited to those employing 50 
or more persons made a similar suggestion concerning Sec. 35.107. 
Commenters recommended either that all public entities be subject to 
Sec. 35.107, or that ``50 or more persons'' be changed to ``15 or more 
persons.'' As explained in the discussion of Sec. 35.105, the Department 
has not adopted this suggestion.
    The requirement for designation of an employee responsible for 
coordination of efforts to carry out responsibilities under this part is 
derived from the HEW regulation implementing section 504 in federally 
assisted programs. The requirement for designation of a particular 
employee and dissemination of information about how to locate that 
employee helps to ensure that individuals dealing with large agencies 
are able to easily find a responsible person who is familiar with the 
requirements of the Act and this part and can communicate those 
requirements to other individuals in the agency who may be unaware of 
their responsibilities. This paragraph in no way limits a public 
entity's obligation to ensure that all of its employees comply with the 
requirements of this part, but it ensures that any failure by individual 
employees can be promptly corrected by the designated employee.
    Section 35.107(b) requires public entities with 50 or more employees 
to establish grievance procedures for resolving complaints of violations 
of this part. Similar requirements are found in the section 504 
regulations for federally assisted programs (see, e.g., 45 CFR 84.7(b)). 
The rule, like the regulations for federally assisted programs, provides 
for investigation and resolution of complaints by a Federal enforcement 
agency. It is the view of the Department that public entities subject to 
this part should be required to establish a mechanism for resolution of 
complaints at the local level without requiring

[[Page 526]]

the complainant to resort to the Federal complaint procedures 
established under subpart F. Complainants would not, however, be 
required to exhaust the public entity's grievance procedures before 
filing a complaint under subpart F. Delay in filing the complaint at the 
Federal level caused by pursuit of the remedies available under the 
grievance procedure would generally be considered good cause for 
extending the time allowed for filing under Sec. 35.170(b).

                     Subpart B--General Requirements

       Section 35.130  General Prohibitions Against Discrimination

    The general prohibitions against discrimination in the rule are 
generally based on the prohibitions in existing regulations implementing 
section 504 and, therefore, are already familiar to State and local 
entities covered by section 504. In addition, Sec. 35.130 includes a 
number of provisions derived from title III of the Act that are implicit 
to a certain degree in the requirements of regulations implementing 
section 504.
    Several commenters suggested that this part should include the 
section of the proposed title III regulation that implemented section 
309 of the Act, which requires that courses and examinations related to 
applications, licensing, certification, or credentialing be provided in 
an accessible place and manner or that alternative accessible 
arrangements be made. The Department has not adopted this suggestion. 
The requirements of this part, including the general prohibitions of 
discrimination in this section, the program access requirements of 
subpart D, and the communications requirements of subpart E, apply to 
courses and examinations provided by public entities. The Department 
considers these requirements to be sufficient to ensure that courses and 
examinations administered by public entities meet the requirements of 
section 309. For example, a public entity offering an examination must 
ensure that modifications of policies, practices, or procedures or the 
provision of auxiliary aids and services furnish the individual with a 
disability an equal opportunity to demonstrate his or her knowledge or 
ability. Also, any examination specially designed for individuals with 
disabilities must be offered as often and in as timely a manner as are 
other examinations. Further, under this part, courses and examinations 
must be offered in the most integrated setting appropriate. The analysis 
of Sec. 35.130(d) is relevant to this determination.
    A number of commenters asked that the regulation be amended to 
require training of law enforcement personnel to recognize the 
difference between criminal activity and the effects of seizures or 
other disabilities such as mental retardation, cerebral palsy, traumatic 
brain injury, mental illness, or deafness. Several disabled commenters 
gave personal statements about the abuse they had received at the hands 
of law enforcement personnel. Two organizations that commented cited the 
Judiciary report at 50 as authority to require law enforcement training.
    The Department has not added such a training requirement to the 
regulation. Discriminatory arrests and brutal treatment are already 
unlawful police activities. The general regulatory obligation to modify 
policies, practices, or procedures requires law enforcement to make 
changes in policies that result in discriminatory arrests or abuse of 
individuals with disabilities. Under this section law enforcement 
personnel would be required to make appropriate efforts to determine 
whether perceived strange or disruptive behavior or unconsciousness is 
the result of a disability. The Department notes that a number of States 
have attempted to address the problem of arresting disabled persons for 
noncriminal conduct resulting from their disability through adoption of 
the Uniform Duties to Disabled Persons Act, and encourages other 
jurisdictions to consider that approach.
    Paragraph (a) restates the nondiscrimination mandate of section 202 
of the ADA. The remaining paragraphs in Sec. 35.130 establish the 
general principles for analyzing whether any particular action of the 
public entity violates this mandate.
    Paragraph (b) prohibits overt denials of equal treatment of 
individuals with disabilities. A public entity may not refuse to provide 
an individual with a disability with an equal opportunity to participate 
in or benefit from its program simply because the person has a 
disability.
    Paragraph (b)(1)(i) provides that it is discriminatory to deny a 
person with a disability the right to participate in or benefit from the 
aid, benefit, or service provided by a public entity. Paragraph 
(b)(1)(ii) provides that the aids, benefits, and services provided to 
persons with disabilities must be equal to those provided to others, and 
paragraph (b)(1)(iii) requires that the aids, benefits, or services 
provided to individuals with disabilities must be as effective in 
affording equal opportunity to obtain the same result, to gain the same 
benefit, or to reach the same level of achievement as those provided to 
others. These paragraphs are taken from the regulations implementing 
section 504 and simply restate principles long established under section 
504.
    Paragraph (b)(1)(iv) permits the public entity to develop separate 
or different aids, benefits, or services when necessary to provide 
individuals with disabilities with an equal opportunity to participate 
in or benefit from the public entity's programs or activities, but only 
when necessary to ensure

[[Page 527]]

that the aids, benefits, or services are as effective as those provided 
to others. Paragraph (b)(1)(iv) must be read in conjunction with 
paragraphs (b)(2), (d), and (e). Even when separate or different aids, 
benefits, or services would be more effective, paragraph (b)(2) provides 
that a qualified individual with a disability still has the right to 
choose to participate in the program that is not designed to accommodate 
individuals with disabilities. Paragraph (d) requires that a public 
entity administer services, programs, and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with disabilities.
    Paragraph (b)(2) specifies that, notwithstanding the existence of 
separate or different programs or activities provided in accordance with 
this section, an individual with a disability shall not be denied the 
opportunity to participate in such programs or activities that are not 
separate or different. Paragraph (e), which is derived from section 
501(d) of the Americans with Disabilities Act, states that nothing in 
this part shall be construed to require an individual with a disability 
to accept an accommodation, aid, service, opportunity, or benefit that 
he or she chooses not to accept.
    Taken together, these provisions are intended to prohibit exclusion 
and segregation of individuals with disabilities and the denial of equal 
opportunities enjoyed by others, based on, among other things, 
presumptions, patronizing attitudes, fears, and stereotypes about 
individuals with disabilities. Consistent with these standards, public 
entities are required to ensure that their actions are based on facts 
applicable to individuals and not on presumptions as to what a class of 
individuals with disabilities can or cannot do.
    Integration is fundamental to the purposes of the Americans with 
Disabilities Act. Provision of segregated accommodations and services 
relegates persons with disabilities to second-class status. For example, 
it would be a violation of this provision to require persons with 
disabilities to eat in the back room of a government cafeteria or to 
refuse to allow a person with a disability the full use of recreation or 
exercise facilities because of stereotypes about the person's ability to 
participate.
    Many commenters objected to proposed paragraphs (b)(1)(iv) and (d) 
as allowing continued segregation of individuals with disabilities. The 
Department recognizes that promoting integration of individuals with 
disabilities into the mainstream of society is an important objective of 
the ADA and agrees that, in most instances, separate programs for 
individuals with disabilities will not be permitted. Nevertheless, 
section 504 does permit separate programs in limited circumstances, and 
Congress clearly intended the regulations issued under title II to adopt 
the standards of section 504. Furthermore, Congress included authority 
for separate programs in the specific requirements of title III of the 
Act. Section 302(b)(1)(A)(iii) of the Act provides for separate benefits 
in language similar to that in Sec. 35.130(b)(1)(iv), and section 
302(b)(1)(B) includes the same requirement for ``the most integrated 
setting appropriate'' as in Sec. 35.130(d).
    Even when separate programs are permitted, individuals with 
disabilities cannot be denied the opportunity to participate in programs 
that are not separate or different. This is an important and overarching 
principle of the Americans with Disabilities Act. Separate, special, or 
different programs that are designed to provide a benefit to persons 
with disabilities cannot be used to restrict the participation of 
persons with disabilities in general, integrated activities.
    For example, a person who is blind may wish to decline participating 
in a special museum tour that allows persons to touch sculptures in an 
exhibit and instead tour the exhibit at his or her own pace with the 
museum's recorded tour. It is not the intent of this section to require 
the person who is blind to avail himself or herself of the special tour. 
Modified participation for persons with disabilities must be a choice, 
not a requirement.
    In addition, it would not be a violation of this section for a 
public entity to offer recreational programs specially designed for 
children with mobility impairments. However, it would be a violation of 
this section if the entity then excluded these children from other 
recreational services for which they are qualified to participate when 
these services are made available to nondisabled children, or if the 
entity required children with disabilities to attend only designated 
programs.
    Many commenters asked that the Department clarify a public entity's 
obligations within the integrated program when it offers a separate 
program but an individual with a disability chooses not to participate 
in the separate program. It is impossible to make a blanket statement as 
to what level of auxiliary aids or modifications would be required in 
the integrated program. Rather, each situation must be assessed 
individually. The starting point is to question whether the separate 
program is in fact necessary or appropriate for the individual. Assuming 
the separate program would be appropriate for a particular individual, 
the extent to which that individual must be provided with modifications 
in the integrated program will depend not only on what the individual 
needs but also on the limitations and defenses of this part. For 
example, it may constitute an undue burden for a public accommodation, 
which provides a full-time interpreter in its

[[Page 528]]

special guided tour for individuals with hearing impairments, to hire an 
additional interpreter for those individuals who choose to attend the 
integrated program. The Department cannot identify categorically the 
level of assistance or aid required in the integrated program.
    Paragraph (b)(1)(v) provides that a public entity may not aid or 
perpetuate discrimination against a qualified individual with a 
disability by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, or service to beneficiaries of the public 
entity's program. This paragraph is taken from the regulations 
implementing section 504 for federally assisted programs.
    Paragraph (b)(1)(vi) prohibits the public entity from denying a 
qualified individual with a disability the opportunity to participate as 
a member of a planning or advisory board.
    Paragraph (b)(1)(vii) prohibits the public entity from limiting a 
qualified individual with a disability in the enjoyment of any right, 
privilege, advantage, or opportunity enjoyed by others receiving any 
aid, benefit, or service.
    Paragraph (b)(3) prohibits the public entity from utilizing criteria 
or methods of administration that deny individuals with disabilities 
access to the public entity's services, programs, and activities or that 
perpetuate the discrimination of another public entity, if both public 
entities are subject to common administrative control or are agencies of 
the same State. The phrase ``criteria or methods of administration'' 
refers to official written policies of the public entity and to the 
actual practices of the public entity. This paragraph prohibits both 
blatantly exclusionary policies or practices and nonessential policies 
and practices that are neutral on their face, but deny individuals with 
disabilities an effective opportunity to participate. This standard is 
consistent with the interpretation of section 504 by the U.S. Supreme 
Court in Alexander v. Choate, 469 U.S. 287 (1985). The Court in Choate 
explained that members of Congress made numerous statements during 
passage of section 504 regarding eliminating architectural barriers, 
providing access to transportation, and eliminating discriminatory 
effects of job qualification procedures. The Court then noted: ``These 
statements would ring hollow if the resulting legislation could not 
rectify the harms resulting from action that discriminated by effect as 
well as by design.'' Id. at 297 (footnote omitted).
    Paragraph (b)(4) specifically applies the prohibition enunciated in 
Sec. 35.130(b)(3) to the process of selecting sites for construction of 
new facilities or selecting existing facilities to be used by the public 
entity. Paragraph (b)(4) does not apply to construction of additional 
buildings at an existing site.
    Paragraph (b)(5) prohibits the public entity, in the selection of 
procurement contractors, from using criteria that subject qualified 
individuals with disabilities to discrimination on the basis of 
disability.
    Paragraph (b)(6) prohibits the public entity from discriminating 
against qualified individuals with disabilities on the basis of 
disability in the granting of licenses or certification. A person is a 
``qualified individual with a disability'' with respect to licensing or 
certification if he or she can meet the essential eligibility 
requirements for receiving the license or certification (see 
Sec. 35.104).
    A number of commenters were troubled by the phrase ``essential 
eligibility requirements'' as applied to State licensing requirements, 
especially those for health care professions. Because of the variety of 
types of programs to which the definition of ``qualified individual with 
a disability'' applies, it is not possible to use more specific language 
in the definition. The phrase ``essential eligibility requirements,'' 
however, is taken from the definitions in the regulations implementing 
section 504, so caselaw under section 504 will be applicable to its 
interpretation. In Southeastern Community College v. Davis, 442 U.S. 
397, for example, the Supreme Court held that section 504 does not 
require an institution to ``lower or effect substantial modifications of 
standards to accommodate a handicapped person,'' 442 U.S. at 413, and 
that the school had established that the plaintiff was not ``qualified'' 
because she was not able to ``serve the nursing profession in all 
customary ways,'' id. Whether a particular requirement is ``essential'' 
will, of course, depend on the facts of the particular case.
    In addition, the public entity may not establish requirements for 
the programs or activities of licensees or certified entities that 
subject qualified individuals with disabilities to discrimination on the 
basis of disability. For example, the public entity must comply with 
this requirement when establishing safety standards for the operations 
of licensees. In that case the public entity must ensure that standards 
that it promulgates do not discriminate against the employment of 
qualified individuals with disabilities in an impermissible manner.
    Paragraph (b)(6) does not extend the requirements of the Act or this 
part directly to the programs or activities of licensees or certified 
entities themselves. The programs or activities of licensees or 
certified entities are not themselves programs or activities of the 
public entity merely by virtue of the license or certificate.
    Paragraph (b)(7) is a specific application of the requirement under 
the general prohibitions of discrimination that public entities make 
reasonable modifications in policies,

[[Page 529]]

practices, or procedures where necessary to avoid discrimination on the 
basis of disability. Section 302(b)(2)(A)(ii) of the ADA sets out this 
requirement specifically for public accommodations covered by title III 
of the Act, and the House Judiciary Committee Report directs the 
Attorney General to include those specific requirements in the title II 
regulation to the extent that they do not conflict with the regulations 
implementing section 504. Judiciary report at 52.
    Paragraph (b)(8), a new paragraph not contained in the proposed 
rule, prohibits the imposition or application of eligibility criteria 
that screen out or tend to screen out an individual with a disability or 
any class of individuals with disabilities from fully and equally 
enjoying any service, program, or activity, unless such criteria can be 
shown to be necessary for the provision of the service, program, or 
activity being offered. This prohibition is also a specific application 
of the general prohibitions of discrimination and is based on section 
302(b)(2)(A)(i) of the ADA. It prohibits overt denials of equal 
treatment of individuals with disabilities, or establishment of 
exclusive or segregative criteria that would bar individuals with 
disabilities from participation in services, benefits, or activities.
    Paragraph (b)(8) also prohibits policies that unnecessarily impose 
requirements or burdens on individuals with disabilities that are not 
placed on others. For example, public entities may not require that a 
qualified individual with a disability be accompanied by an attendant. A 
public entity is not, however, required to provide attendant care, or 
assistance in toileting, eating, or dressing to individuals with 
disabilities, except in special circumstances, such as where the 
individual is an inmate of a custodial or correctional institution.
    In addition, paragraph (b)(8) prohibits the imposition of criteria 
that ``tend to'' screen out an individual with a disability. This 
concept, which is derived from current regulations under section 504 
(see, e.g., 45 CFR 84.13), makes it discriminatory to impose policies or 
criteria that, while not creating a direct bar to individuals with 
disabilities, indirectly prevent or limit their ability to participate. 
For example, requiring presentation of a driver's license as the sole 
means of identification for purposes of paying by check would violate 
this section in situations where, for example, individuals with severe 
vision impairments or developmental disabilities or epilepsy are 
ineligible to receive a driver's license and the use of an alternative 
means of identification, such as another photo I.D. or credit card, is 
feasible.
    A public entity may, however, impose neutral rules and criteria that 
screen out, or tend to screen out, individuals with disabilities if the 
criteria are necessary for the safe operation of the program in 
question. Examples of safety qualifications that would be justifiable in 
appropriate circumstances would include eligibility requirements for 
drivers' licenses, or a requirement that all participants in a 
recreational rafting expedition be able to meet a necessary level of 
swimming proficiency. Safety requirements must be based on actual risks 
and not on speculation, stereotypes, or generalizations about 
individuals with disabilities.
    Paragraph (c) provides that nothing in this part prohibits a public 
entity from providing benefits, services, or advantages to individuals 
with disabilities, or to a particular class of individuals with 
disabilities, beyond those required by this part. It is derived from a 
provision in the section 504 regulations that permits programs conducted 
pursuant to Federal statute or Executive order that are designed to 
benefit only individuals with disabilities or a given class of 
individuals with disabilities to be limited to those individuals with 
disabilities. Section 504 ensures that federally assisted programs are 
made available to all individuals, without regard to disabilities, 
unless the Federal program under which the assistance is provided is 
specifically limited to individuals with disabilities or a particular 
class of individuals with disabilities. Because coverage under this part 
is not limited to federally assisted programs, paragraph (c) has been 
revised to clarify that State and local governments may provide special 
benefits, beyond those required by the nondiscrimination requirements of 
this part, that are limited to individuals with disabilities or a 
particular class of individuals with disabilities, without thereby 
incurring additional obligations to persons without disabilities or to 
other classes of individuals with disabilities.
    Paragraphs (d) and (e), previously referred to in the discussion of 
paragraph (b)(1)(iv), provide that the public entity must administer 
services, programs, and activities in the most integrated setting 
appropriate to the needs of qualified individuals with disabilities, 
i.e., in a setting that enables individuals with disabilities to 
interact with nondisabled persons to the fullest extent possible, and 
that persons with disabilities must be provided the option of declining 
to accept a particular accommodation.
    Some commenters expressed concern that Sec. 35.130(e), which states 
that nothing in the rule requires an individual with a disability to 
accept special accommodations and services provided under the ADA, could 
be interpreted to allow guardians of infants or older people with 
disabilities to refuse medical treatment for their wards. Section 
35.130(e) has been revised to make it clear that paragraph (e) is 
inapplicable to the concern of the commenters. A new paragraph (e)(2) 
has been added stating that nothing in the regulation authorizes the 
representative or guardian of an individual with a disability to

[[Page 530]]

decline food, water, medical treatment, or medical services for that 
individual. New paragraph (e) clarifies that neither the ADA nor the 
regulation alters current Federal law ensuring the rights of incompetent 
individuals with disabilities to receive food, water, and medical 
treatment. See, e.g., Child Abuse Amendments of 1984 (42 U.S.C. 
5106a(b)(10), 5106g(10)); Rehabilitation Act of 1973, as amended (29 
U.S.C. 794); the Developmentally Disabled Assistance and Bill of Rights 
Act (42 U.S.C. 6042).
    Sections 35.130(e) (1) and (2) are based on section 501(d) of the 
ADA. Section 501(d) was designed to clarify that nothing in the ADA 
requires individuals with disabilities to accept special accommodations 
and services for individuals with disabilities that may segregate them:
    The Committee added this section [501(d)] to clarify that nothing in 
the ADA is intended to permit discriminatory treatment on the basis of 
disability, even when such treatment is rendered under the guise of 
providing an accommodation, service, aid or benefit to the individual 
with disability. For example, a blind individual may choose not to avail 
himself or herself of the right to go to the front of a line, even if a 
particular public accommodation has chosen to offer such a modification 
of a policy for blind individuals. Or, a blind individual may choose to 
decline to participate in a special museum tour that allows persons to 
touch sculptures in an exhibit and instead tour the exhibits at his or 
her own pace with the museum's recorded tour.

Judiciary report at 71-72. The Act is not to be construed to mean that 
an individual with disabilities must accept special accommodations and 
services for individuals with disabilities when that individual can 
participate in the regular services already offered. Because medical 
treatment, including treatment for particular conditions, is not a 
special accommodation or service for individuals with disabilities under 
section 501(d), neither the Act nor this part provides affirmative 
authority to suspend such treatment. Section 501(d) is intended to 
clarify that the Act is not designed to foster discrimination through 
mandatory acceptance of special services when other alternatives are 
provided; this concern does not reach to the provision of medical 
treatment for the disabling condition itself.
    Paragraph (f) provides that a public entity may not place a 
surcharge on a particular individual with a disability, or any group of 
individuals with disabilities, to cover any costs of measures required 
to provide that individual or group with the nondiscriminatory treatment 
required by the Act or this part. Such measures may include the 
provision of auxiliary aids or of modifications required to provide 
program accessibility.
    Several commenters asked for clarification that the costs of 
interpreter services may not be assessed as an element of ``court 
costs.'' The Department has already recognized that imposition of the 
cost of courtroom interpreter services is impermissible under section 
504. The preamble to the Department's section 504 regulation for its 
federally assisted programs states that where a court system has an 
obligation to provide qualified interpreters, ``it has the corresponding 
responsibility to pay for the services of the interpreters.'' (45 FR 
37630 (June 3, 1980)). Accordingly, recouping the costs of interpreter 
services by assessing them as part of court costs would also be 
prohibited.
    Paragraph (g), which prohibits discrimination on the basis of an 
individual's or entity's known relationship or association with an 
individual with a disability, is based on sections 102(b)(4) and 
302(b)(1)(E) of the ADA. This paragraph was not contained in the 
proposed rule. The individuals covered under this paragraph are any 
individuals who are discriminated against because of their known 
association with an individual with a disability. For example, it would 
be a violation of this paragraph for a local government to refuse to 
allow a theater company to use a school auditorium on the grounds that 
the company had recently performed for an audience of individuals with 
HIV disease.
    This protection is not limited to those who have a familial 
relationship with the individual who has a disability. Congress 
considered, and rejected, amendments that would have limited the scope 
of this provision to specific associations and relationships. Therefore, 
if a public entity refuses admission to a person with cerebral palsy and 
his or her companions, the companions have an independent right of 
action under the ADA and this section.
    During the legislative process, the term ``entity'' was added to 
section 302(b)(1)(E) to clarify that the scope of the provision is 
intended to encompass not only persons who have a known association with 
a person with a disability, but also entities that provide services to 
or are otherwise associated with such individuals. This provision was 
intended to ensure that entities such as health care providers, 
employees of social service agencies, and others who provide 
professional services to persons with disabilities are not subjected to 
discrimination because of their professional association with persons 
with disabilities.

                  Section 35.131  Illegal Use of Drugs

    Section 35.131 effectuates section 510 of the ADA, which clarifies 
the Act's application to people who use drugs illegally. Paragraph (a) 
provides that this part does not prohibit discrimination based on an 
individual's current illegal use of drugs.

[[Page 531]]

    The Act and the regulation distinguish between illegal use of drugs 
and the legal use of substances, whether or not those substances are 
``controlled substances,'' as defined in the Controlled Substances Act 
(21 U.S.C. 812). Some controlled substances are prescription drugs that 
have legitimate medical uses. Section 35.131 does not affect use of 
controlled substances pursuant to a valid prescription under supervision 
by a licensed health care professional, or other use that is authorized 
by the Controlled Substances Act or any other provision of Federal law. 
It does apply to illegal use of those substances, as well as to illegal 
use of controlled substances that are not prescription drugs. The key 
question is whether the individual's use of the substance is illegal, 
not whether the substance has recognized legal uses. Alcohol is not a 
controlled substance, so use of alcohol is not addressed by Sec. 35.131 
(although alcoholics are individuals with disabilities, subject to the 
protections of the statute).
    A distinction is also made between the use of a substance and the 
status of being addicted to that substance. Addiction is a disability, 
and addicts are individuals with disabilities protected by the Act. The 
protection, however, does not extend to actions based on the illegal use 
of the substance. In other words, an addict cannot use the fact of his 
or her addiction as a defense to an action based on illegal use of 
drugs. This distinction is not artificial. Congress intended to deny 
protection to people who engage in the illegal use of drugs, whether or 
not they are addicted, but to provide protection to addicts so long as 
they are not currently using drugs.
    A third distinction is the difficult one between current use and 
former use. The definition of ``current illegal use of drugs'' in 
Sec. 35.104, which is based on the report of the Conference Committee, 
H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 64 (1990) (hereinafter 
``Conference report''), is ``illegal use of drugs that occurred recently 
enough to justify a reasonable belief that a person's drug use is 
current or that continuing use is a real and ongoing problem.''
    Paragraph (a)(2)(i) specifies that an individual who has 
successfully completed a supervised drug rehabilitation program or has 
otherwise been rehabilitated successfully and who is not engaging in 
current illegal use of drugs is protected. Paragraph (a)(2)(ii) 
clarifies that an individual who is currently participating in a 
supervised rehabilitation program and is not engaging in current illegal 
use of drugs is protected. Paragraph (a)(2)(iii) provides that a person 
who is erroneously regarded as engaging in current illegal use of drugs, 
but who is not engaging in such use, is protected.
    Paragraph (b) provides a limited exception to the exclusion of 
current illegal users of drugs from the protections of the Act. It 
prohibits denial of health services, or services provided in connection 
with drug rehabilitation to an individual on the basis of current 
illegal use of drugs, if the individual is otherwise entitled to such 
services. A health care facility, such as a hospital or clinic, may not 
refuse treatment to an individual in need of the services it provides on 
the grounds that the individual is illegally using drugs, but it is not 
required by this section to provide services that it does not ordinarily 
provide. For example, a health care facility that specializes in a 
particular type of treatment, such as care of burn victims, is not 
required to provide drug rehabilitation services, but it cannot refuse 
to treat a individual's burns on the grounds that the individual is 
illegally using drugs.
    Some commenters pointed out that abstention from the use of drugs is 
an essential condition of participation in some drug rehabilitation 
programs, and may be a necessary requirement in inpatient or residential 
settings. The Department believes that this comment is well-founded. 
Congress clearly intended to prohibit exclusion from drug treatment 
programs of the very individuals who need such programs because of their 
use of drugs, but, once an individual has been admitted to a program, 
abstention may be a necessary and appropriate condition to continued 
participation. The final rule therefore provides that a drug 
rehabilitation or treatment program may prohibit illegal use of drugs by 
individuals while they are participating in the program.
    Paragraph (c) expresses Congress' intention that the Act be neutral 
with respect to testing for illegal use of drugs. This paragraph 
implements the provision in section 510(b) of the Act that allows 
entities ``to adopt or administer reasonable policies or procedures, 
including but not limited to drug testing,'' that ensure that an 
individual who is participating in a supervised rehabilitation program, 
or who has completed such a program or otherwise been rehabilitated 
successfully is no longer engaging in the illegal use of drugs. The 
section is not to be ``construed to encourage, prohibit, restrict, or 
authorize the conducting of testing for the illegal use of drugs.''
    Paragraph 35.131(c) clarifies that it is not a violation of this 
part to adopt or administer reasonable policies or procedures to ensure 
that an individual who formerly engaged in the illegal use of drugs is 
not currently engaging in illegal use of drugs. Any such policies or 
procedures must, of course, be reasonable, and must be designed to 
identify accurately the illegal use of drugs. This paragraph does not 
authorize inquiries, tests, or other procedures that would disclose use 
of substances that are not controlled substances or are taken under 
supervision by a licensed health care professional, or other

[[Page 532]]

uses authorized by the Controlled Substances Act or other provisions of 
Federal law, because such uses are not included in the definition of 
``illegal use of drugs.'' A commenter argued that the rule should permit 
testing for lawful use of prescription drugs, but most commenters 
preferred that tests must be limited to unlawful use in order to avoid 
revealing the lawful use of prescription medicine used to treat 
disabilities.

                         Section 35.132  Smoking

    Section 35.132 restates the clarification in section 501(b) of the 
Act that the Act does not preclude the prohibition of, or imposition of 
restrictions on, smoking in transportation covered by title II. Some 
commenters argued that this section is too limited in scope, and that 
the regulation should prohibit smoking in all facilities used by public 
entities. The reference to smoking in section 501, however, merely 
clarifies that the Act does not require public entities to accommodate 
smokers by permitting them to smoke in transportation facilities.

           Section 35.133  Maintenance of Accessible Features

    Section 35.133 provides that a public entity shall maintain in 
operable working condition those features of facilities and equipment 
that are required to be readily accessible to and usable by persons with 
disabilities by the Act or this part. The Act requires that, to the 
maximum extent feasible, facilities must be accessible to, and usable 
by, individuals with disabilities. This section recognizes that it is 
not sufficient to provide features such as accessible routes, elevators, 
or ramps, if those features are not maintained in a manner that enables 
individuals with disabilities to use them. Inoperable elevators, locked 
accessible doors, or ``accessible'' routes that are obstructed by 
furniture, filing cabinets, or potted plants are neither ``accessible 
to'' nor ``usable by'' individuals with disabilities.
    Some commenters objected that this section appeared to establish an 
absolute requirement and suggested that language from the preamble be 
included in the text of the regulation. It is, of course, impossible to 
guarantee that mechanical devices will never fail to operate. Paragraph 
(b) of the final regulation provides that this section does not prohibit 
isolated or temporary interruptions in service or access due to 
maintenance or repairs. This paragraph is intended to clarify that 
temporary obstructions or isolated instances of mechanical failure would 
not be considered violations of the Act or this part. However, allowing 
obstructions or ``out of service'' equipment to persist beyond a 
reasonable period of time would violate this part, as would repeated 
mechanical failures due to improper or inadequate maintenance. Failure 
of the public entity to ensure that accessible routes are properly 
maintained and free of obstructions, or failure to arrange prompt repair 
of inoperable elevators or other equipment intended to provide access 
would also violate this part.
    Other commenters requested that this section be expanded to include 
specific requirements for inspection and maintenance of equipment, for 
training staff in the proper operation of equipment, and for maintenance 
of specific items. The Department believes that this section properly 
establishes the general requirement for maintaining access and that 
further details are not necessary.

                 Section 35.134  Retaliation or Coercion

    Section 35.134 implements section 503 of the ADA, which prohibits 
retaliation against any individual who exercises his or her rights under 
the Act. This section is unchanged from the proposed rule. Paragraph (a) 
of Sec. 35.134 provides that no private or public entity shall 
discriminate against any individual because that individual has 
exercised his or her right to oppose any act or practice made unlawful 
by this part, or because that individual made a charge, testified, 
assisted, or participated in any manner in an investigation, proceeding, 
or hearing under the Act or this part.
    Paragraph (b) provides that no private or public entity shall 
coerce, intimidate, threaten, or interfere with any individual in the 
exercise of his or her rights under this part or because that individual 
aided or encouraged any other individual in the exercise or enjoyment of 
any right granted or protected by the Act or this part.
    This section protects not only individuals who allege a violation of 
the Act or this part, but also any individuals who support or assist 
them. This section applies to all investigations or proceedings 
initiated under the Act or this part without regard to the ultimate 
resolution of the underlying allegations. Because this section prohibits 
any act of retaliation or coercion in response to an individual's effort 
to exercise rights established by the Act and this part (or to support 
the efforts of another individual), the section applies not only to 
public entities subject to this part, but also to persons acting in an 
individual capacity or to private entities. For example, it would be a 
violation of the Act and this part for a private individual to harass or 
intimidate an individual with a disability in an effort to prevent that 
individual from attending a concert in a State-owned park. It would, 
likewise, be a violation of the Act and this part for a private entity 
to take adverse action against an employee who appeared as a witness on 
behalf of an individual who sought to enforce the Act.

[[Page 533]]

              Section 35.135  Personal Devices and Services

    The final rule includes a new Sec. 35.135, entitles ``Personal 
devices and services,'' which states that the provision of personal 
devices and services is not required by title II. This new section, 
which serves as a limitation on all of the requirements of the 
regulation, replaces Sec. 35.160(b)(2) of the proposed rule, which 
addressed the issue of personal devices and services explicitly only in 
the context of communications. The personal devices and services 
limitation was intended to have general application in the proposed rule 
in all contexts where it was relevant. The final rule, therefore, 
clarifies this point by including a general provision that will 
explicitly apply not only to auxiliary aids and services but across-the-
board to include other relevant areas such as, for example, 
modifications in policies, practices, and procedures 
(Sec. 35.130(b)(7)). The language of Sec. 35.135 parallels an analogous 
provision in the Department's title III regulations (28 CFR 36.306) but 
preserves the explicit reference to ``readers for personal use or 
study'' in Sec. 35.160(b)(2) of the proposed rule. This section does not 
preclude the short-term loan of personal receivers that are part of an 
assistive listening system.

                          Subpart C--Employment

          Section 35.140  Employment Discrimination Prohibited

    Title II of the ADA applies to all activities of public entities, 
including their employment practices. The proposed rule cross-referenced 
the definitions, requirements, and procedures of title I of the ADA, as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1630. This proposal would have resulted in use, under Sec. 35.140, 
of the title I definition of ``employer,'' so that a public entity with 
25 or more employees would have become subject to the requirements of 
Sec. 35.140 on July 26, 1992, one with 15 to 24 employees on July 26, 
1994, and one with fewer than 15 employees would have been excluded 
completely.
    The Department received comments objecting to this approach. The 
commenters asserted that Congress intended to establish 
nondiscrimination requirements for employment by all public entities, 
including those that employ fewer than 15 employees; and that Congress 
intended the employment requirements of title II to become effective at 
the same time that the other requirements of this regulation become 
effective, January 26, 1992. The Department has reexamined the statutory 
language and legislative history of the ADA on this issue and has 
concluded that Congress intended to cover the employment practices of 
all public entities and that the applicable effective date is that of 
title II.
    The statutory language of section 204(b) of the ADA requires the 
Department to issue a regulation that is consistent with the ADA and the 
Department's coordination regulation under section 504, 28 CFR part 41. 
The coordination regulation specifically requires nondiscrimination in 
employment, 28 CFR 41.52-41.55, and does not limit coverage based on 
size of employer. Moreover, under all section 504 implementing 
regulations issued in accordance with the Department's coordination 
regulation, employment coverage under section 504 extends to all 
employers with federally assisted programs or activities, regardless of 
size, and the effective date for those employment requirements has 
always been the same as the effective date for nonemployment 
requirements established in the same regulations. The Department 
therefore concludes that Sec. 35.140 must apply to all public entities 
upon the effective date of this regulation.
    In the proposed regulation the Department cross-referenced the 
regulations implementing title I of the ADA, issued by the Equal 
Employment Opportunity Commission at 29 CFR part 1630, as a compliance 
standard for Sec. 35.140 because, as proposed, the scope of coverage and 
effective date of coverage under title II would have been coextensive 
with title I. In the final regulation this language is modified 
slightly. Subparagraph (1) of new paragraph (b) makes it clear that the 
standards established by the Equal Employment Opportunity Commission in 
29 CFR part 1630 will be the applicable compliance standards if the 
public entity is subject to title I. If the public entity is not covered 
by title I, or until it is covered by title I, subparagraph (b)(2) 
cross-references section 504 standards for what constitutes employment 
discrimination, as established by the Department of Justice in 28 CFR 
part 41. Standards for title I of the ADA and section 504 of the 
Rehabilitation Act are for the most part identical because title I of 
the ADA was based on requirements set forth in regulations implementing 
section 504.
    The Department, together with the other Federal agencies responsible 
for the enforcement of Federal laws prohibiting employment 
discrimination on the basis of disability, recognizes the potential for 
jurisdictional overlap that exists with respect to coverage of public 
entities and the need to avoid problems related to overlapping coverage. 
The other Federal agencies include the Equal Employment Opportunity 
Commission, which is the agency primarily responsible for enforcement of 
title I of the ADA, the Department of Labor, which is the agency 
responsible for enforcement of section 503 of the Rehabilitation Act of 
1973, and 26 Federal agencies with programs of Federal financial 
assistance, which are responsible for enforcing section 504 in those 
programs.

[[Page 534]]

Section 107 of the ADA requires that coordination mechanisms be 
developed in connection with the administrative enforcement of 
complaints alleging discrimination under title I and complaints alleging 
discrimination in employment in violation of the Rehabilitation Act. 
Although the ADA does not specifically require inclusion of employment 
complaints under title II in the coordinating mechanisms required by 
title I, Federal investigations of title II employment complaints will 
be coordinated on a government-wide basis also. The Department is 
currently working with the EEOC and other affected Federal agencies to 
develop effective coordinating mechanisms, and final regulations on this 
issue will be issued on or before January 26, 1992.

                    Subpart D--Program Accessibility

                Section 35.149  Discrimination Prohibited

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

                   Section 35.150  Existing Facilities

    Consistent with section 204(b) of the Act, this regulation adopts 
the program accessibility concept found in the section 504 regulations 
for federally conducted programs or activities (e.g., 28 CFR part 39). 
The concept of ``program accessibility'' was first used in the section 
504 regulation adopted by the Department of Health, Education, and 
Welfare for its federally assisted programs and activities in 1977. It 
allowed recipients to make their federally assisted programs and 
activities available to individuals with disabilities without extensive 
retrofitting of their existing buildings and facilities, by offering 
those programs through alternative methods. Program accessibility has 
proven to be a useful approach and was adopted in the regulations issued 
for programs and activities conducted by Federal Executive agencies. The 
Act provides that the concept of program access will continue to apply 
with respect to facilities now in existence, because the cost of 
retrofitting existing facilities is often prohibitive.
    Section 35.150 requires that each service, program, or activity 
conducted by a public entity, when viewed in its entirety, be readily 
accessible to and usable by individuals with disabilities. The 
regulation makes clear, however, that a public entity is not required to 
make each of its existing facilities accessible (Sec. 35.150(a)(1)). 
Unlike title III of the Act, which requires public accommodations to 
remove architectural barriers where such removal is ``readily 
achievable,'' or to provide goods and services through alternative 
methods, where those methods are ``readily achievable,'' title II 
requires a public entity to make its programs accessible in all cases, 
except where to do so would result in a fundamental alteration in the 
nature of the program or in undue financial and administrative burdens. 
Congress intended the ``undue burden'' standard in title II to be 
significantly higher than the ``readily achievable'' standard in title 
III. Thus, although title II may not require removal of barriers in some 
cases where removal would be required under title III, the program 
access requirement of title II should enable individuals with 
disabilities to participate in and benefit from the services, programs, 
or activities of public entities in all but the most unusual cases.
    Paragraph (a)(2), which establishes a special limitation on the 
obligation to ensure program accessibility in historic preservation 
programs, is discussed below in connection with paragraph (b).
    Paragraph (a)(3), which is taken from the section 504 regulations 
for federally conducted programs, generally codifies case law that 
defines the scope of the public entity's obligation to ensure program 
accessibility. This paragraph provides that, in meeting the program 
accessibility requirement, a public entity is not required to take any 
action that would result in a fundamental alteration in the nature of 
its service, program, or activity or in undue financial and 
administrative burdens. A similar limitation is provided in Sec. 35.164.
    This paragraph does not establish an absolute defense; it does not 
relieve a public entity of all obligations to individuals with 
disabilities. Although a public entity is not required to take actions 
that would result in a fundamental alteration in the nature of a 
service, program, or activity or in undue financial and administrative 
burdens, it nevertheless must take any other steps necessary to ensure 
that individuals with disabilities receive the benefits or services 
provided by the public entity.
    It is the Department's view that compliance with Sec. 35.150(a), 
like compliance with the corresponding provisions of the section 504 
regulations for federally conducted programs, would in most cases not 
result in undue financial and administrative burdens on a public entity. 
In determining whether financial and administrative burdens are undue, 
all public entity resources available for use in the funding and 
operation of the service, program, or activity should be considered. The 
burden of proving that compliance with paragraph (a) of Sec. 35.150 
would fundamentally alter the nature of a service, program, or activity 
or would result in undue financial and administrative burdens rests with 
the public entity.
    The decision that compliance would result in such alteration or 
burdens must be made by the head of the public entity or his or her 
designee and must be accompanied by a written statement of the reasons 
for reaching

[[Page 535]]

that conclusion. The Department recognizes the difficulty of identifying 
the official responsible for this determination, given the variety of 
organizational forms that may be taken by public entities and their 
components. The intention of this paragraph is that the determination 
must be made by a high level official, no lower than a Department head, 
having budgetary authority and responsibility for making spending 
decisions.
    Any person who believes that he or she or any specific class of 
persons has been injured by the public entity head's decision or failure 
to make a decision may file a complaint under the compliance procedures 
established in subpart F.
    Paragraph (b)(1) sets forth a number of means by which program 
accessibility may be achieved, including redesign of equipment, 
reassignment of services to accessible buildings, and provision of 
aides.
    The Department wishes to clarify that, consistent with longstanding 
interpretation of section 504, carrying an individual with a disability 
is considered an ineffective and therefore an unacceptable method for 
achieving program accessibility. Department of Health, Education, and 
Welfare, Office of Civil Rights, Policy Interpretation No. 4, 43 FR 
36035 (August 14, 1978). Carrying will be permitted only in manifestly 
exceptional cases, and only if all personnel who are permitted to 
participate in carrying an individual with a disability are formally 
instructed on the safest and least humiliating means of carrying. 
``Manifestly exceptional'' cases in which carrying would be permitted 
might include, for example, programs conducted in unique facilities, 
such as an oceanographic vessel, for which structural changes and 
devices necessary to adapt the facility for use by individuals with 
mobility impairments are unavailable or prohibitively expensive. 
Carrying is not permitted as an alternative to structural modifications 
such as installation of a ramp or a chairlift.
    In choosing among methods, the public entity shall give priority 
consideration to those that will be consistent with provision of 
services in the most integrated setting appropriate to the needs of 
individuals with disabilities. Structural changes in existing facilities 
are required only when there is no other feasible way to make the public 
entity's program accessible. (It should be noted that ``structural 
changes'' include all physical changes to a facility; the term does not 
refer only to changes to structural features, such as removal of or 
alteration to a load-bearing structural member.) The requirements of 
Sec. 35.151 for alterations apply to structural changes undertaken to 
comply with this section. The public entity may comply with the program 
accessibility requirement by delivering services at alternate accessible 
sites or making home visits as appropriate.

                     Historic Preservation Programs

    In order to avoid possible conflict between the congressional 
mandates to preserve historic properties, on the one hand, and to 
eliminate discrimination against individuals with disabilities on the 
other, paragraph (a)(2) provides that a public entity is not required to 
take any action that would threaten or destroy the historic significance 
of an historic property. The special limitation on program accessibility 
set forth in paragraph (a)(2) is applicable only to historic 
preservation programs, as defined in Sec. 35.104, that is, programs that 
have preservation of historic properties as a primary purpose. Narrow 
application of the special limitation is justified because of the 
inherent flexibility of the program accessibility requirement. Where 
historic preservation is not a primary purpose of the program, the 
public entity is not required to use a particular facility. It can 
relocate all or part of its program to an accessible facility, make home 
visits, or use other standard methods of achieving program accessibility 
without making structural alterations that might threaten or destroy 
significant historic features of the historic property. Thus, government 
programs located in historic properties, such as an historic State 
capitol, are not excused from the requirement for program access.
    Paragraph (a)(2), therefore, will apply only to those programs that 
uniquely concern the preservation and experience of the historic 
property itself. Because the primary benefit of an historic preservation 
program is the experience of the historic property, paragraph (b)(2) 
requires the public entity to give priority to methods of providing 
program accessibility that permit individuals with disabilities to have 
physical access to the historic property. This priority on physical 
access may also be viewed as a specific application of the general 
requirement that the public entity administer programs in the most 
integrated setting appropriate to the needs of qualified individuals 
with disabilities (Sec. 35.130(d)). Only when providing physical access 
would threaten or destroy the historic significance of an historic 
property, or would result in a fundamental alteration in the nature of 
the program or in undue financial and administrative burdens, may the 
public entity adopt alternative methods for providing program 
accessibility that do not ensure physical access. Examples of some 
alternative methods are provided in paragraph (b)(2).

                              Time Periods

    Paragraphs (c) and (d) establish time periods for complying with the 
program accessibility requirement. Like the regulations for federally 
assisted programs (e.g., 28 CFR 41.57(b)), paragraph (c) requires the 
public entity to make any necessary structural

[[Page 536]]

changes in facilities as soon as practicable, but in no event later than 
three years after the effective date of this regulation.
    The proposed rule provided that, aside from structural changes, all 
other necessary steps to achieve compliance with this part must be taken 
within sixty days. The sixty day period was taken from regulations 
implementing section 504, which generally were effective no more than 
thirty days after publication. Because this regulation will not be 
effective until January 26, 1992, the Department has concluded that no 
additional transition period for non-structural changes is necessary, so 
the sixty day period has been omitted in the final rule. Of course, this 
section does not reduce or eliminate any obligations that are already 
applicable to a public entity under section 504.
    Where structural modifications are required, paragraph (d) requires 
that a transition plan be developed by an entity that employs 50 or more 
persons, within six months of the effective date of this regulation. The 
legislative history of title II of the ADA makes it clear that, under 
title II, ``local and state governments are required to provide curb 
cuts on public streets.'' Education and Labor report at 84. As the 
rationale for the provision of curb cuts, the House report explains, 
``The employment, transportation, and public accommodation sections of * 
* * (the ADA) would be meaningless if people who use wheelchairs were 
not afforded the opportunity to travel on and between the streets.'' Id. 
Section 35.151(e), which establishes accessibility requirements for new 
construction and alterations, requires that all newly constructed or 
altered streets, roads, or highways must contain curb ramps or other 
sloped areas at any intersection having curbs or other barriers to entry 
from a street level pedestrian walkway, and all newly constructed or 
altered street level pedestrian walkways must have curb ramps or other 
sloped areas at intersections to streets, roads, or highways. A new 
paragraph (d)(2) has been added to the final rule to clarify the 
application of the general requirement for program accessibility to the 
provision of curb cuts at existing crosswalks. This paragraph requires 
that the transition plan include a schedule for providing curb ramps or 
other sloped areas at existing pedestrian walkways, giving priority to 
walkways serving entities covered by the Act, including State and local 
government offices and facilities, transportation, public 
accommodations, and employers, followed by walkways serving other areas. 
Pedestrian ``walkways'' include locations where access is required for 
use of public transportation, such as bus stops that are not located at 
intersections or crosswalks.
    Similarly, a public entity should provide an adequate number of 
accessible parking spaces in existing parking lots or garages over which 
it has jurisdiction.
    Paragraph (d)(3) provides that, if a public entity has already 
completed a transition plan required by a regulation implementing 
section 504, the transition plan required by this part will apply only 
to those policies and practices that were not covered by the previous 
transition plan. Some commenters suggested that the transition plan 
should include all aspects of the public entity's operations, including 
those that may have been covered by a previous transition plan under 
section 504. The Department believes that such a duplicative requirement 
would be inappropriate. Many public entities may find, however, that it 
will be simpler to include all of their operations in the transition 
plan than to attempt to identify and exclude specifically those that 
were addressed in a previous plan. Of course, entities covered under 
section 504 are not shielded from their obligations under that statute 
merely because they are included under the transition plan developed 
under this section.

            Section 35.151  New Construction and Alterations

    Section 35.151 provides that those buildings that are constructed or 
altered by, on behalf of, or for the use of a public entity shall be 
designed, constructed, or altered to be readily accessible to and usable 
by individuals with disabilities if the construction was commenced after 
the effective date of this part. Facilities under design on that date 
will be governed by this section if the date that bids were invited 
falls after the effective date. This interpretation is consistent with 
Federal practice under section 504.
    Section 35.151(c) establishes two standards for accessible new 
construction and alteration. Under paragraph (c), design, construction, 
or alteration of facilities in conformance with the Uniform Federal 
Accessibility Standards (UFAS) or with the Americans with Disabilities 
Act Accessibility Guidelines for Buildings and Facilities (hereinafter 
ADAAG) shall be deemed to comply with the requirements of this section 
with respect to those facilities except that, if ADAAG is chosen, the 
elevator exemption contained at Secs. 36.40l(d) and 36.404 does not 
apply. ADAAG is the standard for private buildings and was issued as 
guidelines by the Architectural and Transportation Barriers Compliance 
Board (ATBCB) under title III of the ADA. It has been adopted by the 
Department of Justice and is published as appendix A to the Department's 
title III rule in today's Federal Register. Departures from particular 
requirements of these standards

[[Page 537]]

by the use of other methods shall be permitted when it is clearly 
evident that equivalent access to the facility or part of the facility 
is thereby provided. Use of two standards is a departure from the 
proposed rule.
    The proposed rule adopted UFAS as the only interim accessibility 
standard because that standard was referenced by the regulations 
implementing section 504 of the Rehabilitation Act promulgated by most 
Federal funding agencies. It is, therefore, familiar to many State and 
local government entities subject to this rule. The Department, however, 
received many comments objecting to the adoption of UFAS. Commenters 
pointed out that, except for the elevator exemption, UFAS is not as 
stringent as ADAAG. Others suggested that the standard should be the 
same to lessen confusion.
    Section 204(b) of the Act states that title II regulations must be 
consistent not only with section 504 regulations but also with ``this 
Act.'' Based on this provision, the Department has determined that a 
public entity should be entitled to choose to comply either with ADAAG 
or UFAS.
    Public entities who choose to follow ADAAG, however, are not 
entitled to the elevator exemption contained in title III of the Act and 
implemented in the title III regulation at Sec. 36.401(d) for new 
construction and Sec. 36.404 for alterations. Section 303(b) of title 
III states that, with some exceptions, elevators are not required in 
facilities that are less than three stories or have less than 3000 
square feet per story. The section 504 standard, UFAS, contains no such 
exemption. Section 501 of the ADA makes clear that nothing in the Act 
may be construed to apply a lesser standard to public entities than the 
standards applied under section 504. Because permitting the elevator 
exemption would clearly result in application of a lesser standard than 
that applied under section 504, paragraph (c) states that the elevator 
exemption does not apply when public entities choose to follow ADAAG. 
Thus, a two-story courthouse, whether built according to UFAS or ADAAG, 
must be constructed with an elevator. It should be noted that Congress 
did not include an elevator exemption for public transit facilities 
covered by subtitle B of title II, which covers public transportation 
provided by public entities, providing further evidence that Congress 
intended that public buildings have elevators.
    Section 504 of the ADA requires the ATBCB to issue supplemental 
Minimum Guidelines and Requirements for Accessible Design of buildings 
and facilities subject to the Act, including title II. Section 204(c) of 
the ADA provides that the Attorney General shall promulgate regulations 
implementing title II that are consistent with the ATBCB's ADA 
guidelines. The ATBCB has announced its intention to issue title II 
guidelines in the future. The Department anticipates that, after the 
ATBCB's title II guidelines have been published, this rule will be 
amended to adopt new accessibility standards consistent with the ATBCB's 
rulemaking. Until that time, however, public entities will have a choice 
of following UFAS or ADAAG, without the elevator exemption.
    Existing buildings leased by the public entity after the effective 
date of this part are not required by the regulation to meet 
accessibility standards simply by virtue of being leased. They are 
subject, however, to the program accessibility standard for existing 
facilities in Sec. 35.150. To the extent the buildings are newly 
constructed or altered, they must also meet the new construction and 
alteration requirements of Sec. 35.151.
    The Department received many comments urging that the Department 
require that public entities lease only accessible buildings. Federal 
practice under section 504 has always treated newly leased buildings as 
subject to the existing facility program accessibility standard. Section 
204(b) of the Act states that, in the area of ``program accessibility, 
existing facilities,'' the title II regulations must be consistent with 
section 504 regulations. Thus, the Department has adopted the section 
504 principles for these types of leased buildings. Unlike the 
construction of new buildings where architectural barriers can be 
avoided at little or no cost, the application of new construction 
standards to an existing building being leased raises the same prospect 
of retrofitting buildings as the use of an existing Federal facility, 
and the same program accessibility standard should apply to both owned 
and leased existing buildings. Similarly, requiring that public entities 
only lease accessible space would significantly restrict the options of 
State and local governments in seeking leased space, which would be 
particularly burdensome in rural or sparsely populated areas.
    On the other hand, the more accessible the leased space is, the 
fewer structural modifications will be required in the future for 
particular employees whose disabilities may necessitate barrier removal 
as a reasonable accommodation. Pursuant to the requirements for leased 
buildings contained in the Minimum Guidelines and Requirements for 
Accessible Design published under the Architectural Barriers Act by the 
ATBCB, 36 CFR 1190.34, the Federal Government may not lease a building 
unless it contains (1) One accessible route from an accessible entrance 
to those areas in which the principal activities for which the building 
is leased are conducted, (2) accessible toilet facilities, and (3) 
accessible parking facilities, if a parking area is included within the 
lease (36 CFR 1190.34). Although these requirements are not applicable 
to buildings leased by public entities covered by this regulation, such 
entities

[[Page 538]]

are encouraged to look for the most accessible space available to lease 
and to attempt to find space complying at least with these minimum 
Federal requirements.
    Section 35.151(d) gives effect to the intent of Congress, expressed 
in section 504(c) of the Act, that this part recognize the national 
interest in preserving significant historic structures. Commenters 
criticized the Department's use of descriptive terms in the proposed 
rule that are different from those used in the ADA to describe eligible 
historic properties. In addition, some commenters criticized the 
Department's decision to use the concept of ``substantially impairing'' 
the historic features of a property, which is a concept employed in 
regulations implementing section 504 of the Rehabilitation Act of 1973. 
Those commenters recommended that the Department adopt the criteria of 
``adverse effect'' published by the Advisory Council on Historic 
Preservation under the National Historic Preservation Act, 36 CFR 800.9, 
as the standard for determining whether an historic property may be 
altered.
    The Department agrees with these comments to the extent that they 
suggest that the language of the rule should conform to the language 
employed by Congress in the ADA. A definition of ``historic property,'' 
drawn from section 504 of the ADA, has been added to Sec. 35.104 to 
clarify that the term applies to those properties listed or eligible for 
listing in the National Register of Historic Places, or properties 
designated as historic under State or local law.
    The Department intends that the exception created by this section be 
applied only in those very rare situations in which it is not possible 
to provide access to an historic property using the special access 
provisions established by UFAS and ADAAG. Therefore, paragraph (d)(1) of 
Sec. 35.151 has been revised to clearly state that alterations to 
historic properties shall comply, to the maximum extent feasible, with 
section 4.1.7 of UFAS or section 4.1.7 of ADAAG. Paragraph (d)(2) has 
been revised to provide that, if it has been determined under the 
procedures established in UFAS and ADAAG that it is not feasible to 
provide physical access to an historic property in a manner that will 
not threaten or destroy the historic significance of the property, 
alternative methods of access shall be provided pursuant to the 
requirements of Sec. 35.150.
    In response to comments, the Department has added to the final rule 
a new paragraph (e) setting out the requirements of Sec. 36.151 as 
applied to curb ramps. Paragraph (e) is taken from the statement 
contained in the preamble to the proposed rule that all newly 
constructed or altered streets, roads, and highways must contain curb 
ramps at any intersection having curbs or other barriers to entry from a 
street level pedestrian walkway, and that all newly constructed or 
altered street level pedestrian walkways must have curb ramps at 
intersections to streets, roads, or highways.

                        Subpart E--Communications

                         Section 35.160  General

    Section 35.160 requires the public entity to take such steps as may 
be necessary to ensure that communications with applicants, 
participants, and members of the public with disabilities are as 
effective as communications with others.
    Paragraph (b)(1) requires the public entity to furnish appropriate 
auxiliary aids and services when necessary to afford an individual with 
a disability an equal opportunity to participate in, and enjoy the 
benefits of, the public entity's service, program, or activity. The 
public entity must provide an opportunity for individuals with 
disabilities to request the auxiliary aids and services of their choice. 
This expressed choice shall be given primary consideration by the public 
entity (Sec. 35.160(b)(2)). The public entity shall honor the choice 
unless it can demonstrate that another effective means of communication 
exists or that use of the means chosen would not be required under 
Sec. 35.164.
    Deference to the request of the individual with a disability is 
desirable because of the range of disabilities, the variety of auxiliary 
aids and services, and different circumstances requiring effective 
communication. For instance, some courtrooms are now equipped for 
``computer-assisted transcripts,'' which allow virtually instantaneous 
transcripts of courtroom argument and testimony to appear on displays. 
Such a system might be an effective auxiliary aid or service for a 
person who is deaf or has a hearing loss who uses speech to communicate, 
but may be useless for someone who uses sign language.
    Although in some circumstances a notepad and written materials may 
be sufficient to permit effective communication, in other circumstances 
they may not be sufficient. For example, a qualified interpreter may be 
necessary when the information being communicated is complex, or is 
exchanged for a lengthy period of time. Generally, factors to be 
considered in determining whether an interpreter is required include the 
context in which the communication is taking place, the number of people 
involved, and the importance of the communication.
    Several commenters asked that the rule clarify that the provision of 
readers is sometimes necessary to ensure access to a public entity's 
services, programs or activities. Reading devices or readers should be 
provided when necessary for equal participation and opportunity to 
benefit from any governmental service, program, or activity, such as 
reviewing public documents, examining demonstrative evidence, and 
filling out voter

[[Page 539]]

registration forms or forms needed to receive public benefits. The 
importance of providing qualified readers for examinations administered 
by public entities is discussed under Sec. 35.130. Reading devices and 
readers are appropriate auxiliary aids and services where necessary to 
permit an individual with a disability to participate in or benefit from 
a service, program, or activity.
    Section 35.160(b)(2) of the proposed rule, which provided that a 
public entity need not furnish individually prescribed devices, readers 
for personal use or study, or other devices of a personal nature, has 
been deleted in favor of a new section in the final rule on personal 
devices and services (see Sec. 35.135).
    In response to comments, the term ``auxiliary aids and services'' is 
used in place of ``auxiliary aids'' in the final rule. This phrase 
better reflects the range of aids and services that may be required 
under this section.
    A number of comments raised questions about the extent of a public 
entity's obligation to provide access to television programming for 
persons with hearing impairments. Television and videotape programming 
produced by public entities are covered by this section. Access to audio 
portions of such programming may be provided by closed captioning.

     Section 35.161  Telecommunication Devices for the Deaf (TDD's)

    Section 35.161 requires that, where a public entity communicates 
with applicants and beneficiaries by telephone, TDD's or equally 
effective telecommunication systems be used to communicate with 
individuals with impaired speech or hearing.
    Problems arise when a public entity which does not have a TDD needs 
to communicate with an individual who uses a TDD or vice versa. Title IV 
of the ADA addresses this problem by requiring establishment of 
telephone relay services to permit communications between individuals 
who communicate by TDD and individuals who communicate by the telephone 
alone. The relay services required by title IV would involve a relay 
operator using both a standard telephone and a TDD to type the voice 
messages to the TDD user and read the TDD messages to the standard 
telephone user.
    Section 204(b) of the ADA requires that the regulation implementing 
title II with respect to communications be consistent with the 
Department's regulation implementing section 504 for its federally 
conducted programs and activities at 28 CFR part 39. Section 35.161, 
which is taken from Sec. 39.160(a)(2) of that regulation, requires the 
use of TDD's or equally effective telecommunication systems for 
communication with people who use TDD's. Of course, where relay 
services, such as those required by title IV of the ADA are available, a 
public entity may use those services to meet the requirements of this 
section.
    Many commenters were concerned that public entities should not rely 
heavily on the establishment of relay services. The commenters explained 
that while relay services would be of vast benefit to both public 
entities and individuals who use TDD's, the services are not sufficient 
to provide access to all telephone services. First, relay systems do not 
provide effective access to the increasingly popular automated systems 
that require the caller to respond by pushing a button on a touch tone 
phone. Second, relay systems cannot operate fast enough to convey 
messages on answering machines, or to permit a TDD user to leave a 
recorded message. Third, communication through relay systems may not be 
appropriate in cases of crisis lines pertaining to rape, domestic 
violence, child abuse, and drugs. The Department believes that it is 
more appropriate for the Federal Communications Commission to address 
these issues in its rulemaking under title IV.
    Some commenters requested that those entities with frequent contacts 
with clients who use TDD's have on-site TDD's to provide for direct 
communication between the entity and the individual. The Department 
encourages those entities that have extensive telephone contact with the 
public such as city halls, public libraries, and public aid offices, to 
have TDD's to insure more immediate access. Where the provision of 
telephone service is a major function of the entity, TDD's should be 
available.

              Section 35.162  Telephone Emergency Services

    Many public entities provide telephone emergency services by which 
individuals can seek immediate assistance from police, fire, ambulance, 
and other emergency services. These telephone emergency services--
including ``911'' services--are clearly an important public service 
whose reliability can be a matter of life or death. The legislative 
history of title II specifically reflects congressional intent that 
public entities must ensure that telephone emergency services, including 
911 services, be accessible to persons with impaired hearing and speech 
through telecommunication technology (Conference report at 67; Education 
and Labor report at 84-85).
    Proposed Sec. 35.162 mandated that public entities provide emergency 
telephone services to persons with disabilities that are ``functionally 
equivalent'' to voice services provided to others. Many commenters urged 
the Department to revise the section to make clear that direct access to 
telephone emergency services is required by title II of the ADA as 
indicated by the legislative history (Conference report at 67-68; 
Education and Labor report at 85). In response, the final rule mandates 
``direct access,'' instead of

[[Page 540]]

``access that is functionally equivalent'' to that provided to all other 
telephone users. Telephone emergency access through a third party or 
through a relay service would not satisfy the requirement for direct 
access.
    Several commenters asked about a separate seven-digit emergency call 
number for the 911 services. The requirement for direct access disallows 
the use of a separate seven-digit number where 911 service is available. 
Separate seven-digit emergency call numbers would be unfamiliar to many 
individuals and also more burdensome to use. A standard emergency 911 
number is easier to remember and would save valuable time spent in 
searching in telephone books for a local seven-digit emergency number.
    Many commenters requested the establishment of minimum standards of 
service (e.g., the quantity and location of TDD's and computer modems 
needed in a given emergency center). Instead of establishing these 
scoping requirements, the Department has established a performance 
standard through the mandate for direct access.
    Section 35.162 requires public entities to take appropriate steps, 
including equipping their emergency systems with modern technology, as 
may be necessary to promptly receive and respond to a call from users of 
TDD's and computer modems. Entities are allowed the flexibility to 
determine what is the appropriate technology for their particular needs. 
In order to avoid mandating use of particular technologies that may 
become outdated, the Department has eliminated the references to the 
Baudot and ASCII formats in the proposed rule.
    Some commenters requested that the section require the installation 
of a voice amplification device on the handset of the dispatcher's 
telephone to amplify the dispatcher's voice. In an emergency, a person 
who has a hearing loss may be using a telephone that does not have an 
amplification device. Installation of speech amplification devices on 
the handsets of the dispatchers' telephones would respond to that 
situation. The Department encourages their use.
    Several commenters emphasized the need for proper maintenance of 
TDD's used in telephone emergency services. Section 35.133, which 
mandates maintenance of accessible features, requires public entities to 
maintain in operable working condition TDD's and other devices that 
provide direct access to the emergency system.

                 Section 35.163  Information and Signage

    Section 35.163(a) requires the public entity to provide information 
to individuals with disabilities concerning accessible services, 
activities, and facilities. Paragraph (b) requires the public entity to 
provide signage at all inaccessible entrances to each of its facilities 
that directs users to an accessible entrance or to a location with 
information about accessible facilities.
    Several commenters requested that, where TDD-equipped pay phones or 
portable TDD's exist, clear signage should be posted indicating the 
location of the TDD. The Department believes that this is required by 
paragraph (a). In addition, the Department recommends that, in large 
buildings that house TDD's, directional signage indicating the location 
of available TDD's should be placed adjacent to banks of telephones that 
do not contain a TDD.

                         Section 35.164  Duties

    Section 35.164, like paragraph (a)(3) of Sec. 35.150, is taken from 
the section 504 regulations for federally conducted programs. Like 
paragraph (a)(3), it limits the obligation of the public entity to 
ensure effective communication in accordance with Davis and the circuit 
court opinions interpreting it. It also includes specific requirements 
for determining the existence of undue financial and administrative 
burdens. The preamble discussion of Sec. 35.150(a) regarding that 
determination is applicable to this section and further explains the 
public entity's obligation to comply with Secs. 35.160-35.164. Because 
of the essential nature of the services provided by telephone emergency 
systems, the Department assumes that Sec. 35.164 will rarely be applied 
to Sec. 35.162.

                    Subpart F--Compliance Procedures

    Subpart F sets out the procedures for administrative enforcement of 
this part. Section 203 of the Act provides that the remedies, 
procedures, and rights set forth in section 505 of the Rehabilitation 
Act of 1973 (29 U.S.C. 794a) for enforcement of section 504 of the 
Rehabilitation Act, which prohibits discrimination on the basis of 
handicap in programs and activities that receive Federal financial 
assistance, shall be the remedies, procedures, and rights for 
enforcement of title II. Section 505, in turn, incorporates by reference 
the remedies, procedures, and rights set forth in title VI of the Civil 
Rights Act of 1964 (42 U.S.C. 2000d to 2000d-4a). Title VI, which 
prohibits discrimination on the basis of race, color, or national origin 
in federally assisted programs, is enforced by the Federal agencies that 
provide the Federal financial assistance to the covered programs and 
activities in question. If voluntary compliance cannot be achieved, 
Federal agencies enforce title VI either by the termination of Federal 
funds to a program that is found to discriminate, following an 
administrative hearing, or by a referral to this Department for judicial 
enforcement.

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    Title II of the ADA extended the requirements of section 504 to all 
services, programs, and activities of State and local governments, not 
only those that receive Federal financial assistance. The House 
Committee on Education and Labor explained the enforcement provisions as 
follows:
    It is the Committee's intent that administrative enforcement of 
section 202 of the legislation should closely parallel the Federal 
government's experience with section 504 of the Rehabilitation Act of 
1973. The Attorney General should use section 504 enforcement procedures 
and the Department's coordination role under Executive Order 12250 as 
models for regulation in this area.
    The Committee envisions that the Department of Justice will identify 
appropriate Federal agencies to oversee compliance activities for State 
and local governments. As with section 504, these Federal agencies, 
including the Department of Justice, will receive, investigate, and 
where possible, resolve complaints of discrimination. If a Federal 
agency is unable to resolve a complaint by voluntary means, * * * the 
major enforcement sanction for the Federal government will be referral 
of cases by these Federal agencies to the Department of Justice.
    The Department of Justice may then proceed to file suits in Federal 
district court. As with section 504, there is also a private right of 
action for persons with disabilities, which includes the full panoply of 
remedies. Again, consistent with section 504, it is not the Committee's 
intent that persons with disabilities need to exhaust Federal 
administrative remedies before exercising their private right of action.

Education & Labor report at 98. See also S. Rep. No. 116, 101st Cong., 
1st Sess., at 57-58 (1989).
    Subpart F effectuates the congressional intent by deferring to 
section 504 procedures where those procedures are applicable, that is, 
where a Federal agency has jurisdiction under section 504 by virtue of 
its provision of Federal financial assistance to the program or activity 
in which the discrimination is alleged to have occurred. Deferral to the 
504 procedures also makes the sanction of fund termination available 
where necessary to achieve compliance. Because the Civil Rights 
Restoration Act (Pub. L. 100-259) extended the application of section 
504 to all of the operations of the public entity receiving the Federal 
financial assistance, many activities of State and local governments are 
already covered by section 504. The procedures in subpart F apply to 
complaints concerning services, programs, and activities of public 
entities that are covered by the ADA.
    Subpart G designates the Federal agencies responsible for enforcing 
the ADA with respect to specific components of State and local 
government. It does not, however, displace existing jurisdiction under 
section 504 of the various funding agencies. Individuals may still file 
discrimination complaints against recipients of Federal financial 
assistance with the agencies that provide that assistance, and the 
funding agencies will continue to process those complaints under their 
existing procedures for enforcing section 504. The substantive standards 
adopted in this part for title II of the ADA are generally the same as 
those required under section 504 for federally assisted programs, and 
public entities covered by the ADA are also covered by the requirements 
of section 504 to the extent that they receive Federal financial 
assistance. To the extent that title II provides greater protection to 
the rights of individuals with disabilities, however, the funding 
agencies will also apply the substantive requirements established under 
title II and this part in processing complaints covered by both this 
part and section 504, except that fund termination procedures may be 
used only for violations of section 504.
    Subpart F establishes the procedures to be followed by the agencies 
designated in subpart G for processing complaints against State and 
local government entities when the designated agency does not have 
jurisdiction under section 504.

                       Section 35.170  Complaints

    Section 35.170 provides that any individual who believes that he or 
she or a specific class of individuals has been subjected to 
discrimination on the basis of disability by a public entity may, by 
himself or herself or by an authorized representative, file a complaint 
under this part within 180 days of the date of the alleged 
discrimination, unless the time for filing is extended by the agency for 
good cause. Although Sec. 35.107 requires public entities that employ 50 
or more persons to establish grievance procedures for resolution of 
complaints, exhaustion of those procedures is not a prerequisite to 
filing a complaint under this section. If a complainant chooses to 
follow the public entity's grievance procedures, however, any resulting 
delay may be considered good cause for extending the time allowed for 
filing a complaint under this part.
    Filing the complaint with any Federal agency will satisfy the 
requirement for timely filing. As explained below, a complaint filed 
with an agency that has jurisdiction under section 504 will be processed 
under the agency's procedures for enforcing section 504.
    Some commenters objected to the complexity of allowing complaints to 
be filed with different agencies. The multiplicity of enforcement 
jurisdiction is the result of following the statutorily mandated 
enforcement scheme. The Department has, however, attempted to simplify 
procedures for complainants by making the Federal agency that

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receives the complaint responsible for referring it to an appropriate 
agency.
    The Department has also added a new paragraph (c) to this section 
providing that a complaint may be filed with any agency designated under 
subpart G of this part, or with any agency that provides funding to the 
public entity that is the subject of the complaint, or with the 
Department of Justice. Under Sec. 35.171(a)(2), the Department of 
Justice will refer complaints for which it does not have jurisdiction 
under section 504 to an agency that does have jurisdiction under section 
504, or to the agency designated under subpart G as responsible for 
complaints filed against the public entity that is the subject of the 
complaint or in the case of an employment complaint that is also subject 
to title I of the Act, to the Equal Employment Opportunity Commission. 
Complaints filed with the Department of Justice may be sent to the 
Coordination and Review Section, P.O. Box 66118, Civil Rights Division, 
U.S. Department of Justice, Washington, DC 20035-6118.

                Section 35.171  Acceptance of Complaints

    Section 35.171 establishes procedures for determining jurisdiction 
and responsibility for processing complaints against public entities. 
The final rule provides complainants an opportunity to file with the 
Federal funding agency of their choice. If that agency does not have 
jurisdiction under section 504, however, and is not the agency 
designated under subpart G as responsible for that public entity, the 
agency must refer the complaint to the Department of Justice, which will 
be responsible for referring it either to an agency that does have 
jurisdiction under section 504 or to the appropriate designated agency, 
or in the case of an employment complaint that is also subject to title 
I of the Act, to the Equal Employment Opportunity Commission.
    Whenever an agency receives a complaint over which it has 
jurisdiction under section 504, it will process the complaint under its 
section 504 procedures. When the agency designated under subpart G 
receives a complaint for which it does not have jurisdiction under 
section 504, it will treat the complaint as an ADA complaint under the 
procedures established in this subpart.
    Section 35.171 also describes agency responsibilities for the 
processing of employment complaints. As described in connection with 
Sec. 35.140, additional procedures regarding the coordination of 
employment complaints will be established in a coordination regulation 
issued by DOJ and EEOC. Agencies with jurisdiction under section 504 for 
complaints alleging employment discrimination also covered by title I 
will follow the procedures established by the coordination regulation 
for those complaints. Complaints covered by title I but not section 504 
will be referred to the EEOC, and complaints covered by this part but 
not title I will be processed under the procedures in this part.

                Section 35.172  Resolution of Complaints

    Section 35.172 requires the designated agency to either resolve the 
complaint or issue to the complainant and the public entity a Letter of 
Findings containing findings of fact and conclusions of law and a 
description of a remedy for each violation found.
    The Act requires the Department of Justice to establish 
administrative procedures for resolution of complaints, but does not 
require complainants to exhaust these administrative remedies. The 
Committee Reports make clear that Congress intended to provide a private 
right of action with the full panoply of remedies for individual victims 
of discrimination. Because the Act does not require exhaustion of 
administrative remedies, the complainant may elect to proceed with a 
private suit at any time.

             Section 35.173  Voluntary Compliance Agreements

    Section 35.173 requires the agency to attempt to resolve all 
complaints in which it finds noncompliance through voluntary compliance 
agreements enforceable by the Attorney General.

                        Section 35.174  Referral

    Section 35.174 provides for referral of the matter to the Department 
of Justice if the agency is unable to obtain voluntary compliance.

                     Section 35.175  Attorney's Fees

    Section 35.175 states that courts are authorized to award attorneys 
fees, including litigation expenses and costs, as provided in section 
505 of the Act. Litigation expenses include items such as expert witness 
fees, travel expenses, etc. The Judiciary Committee Report specifies 
that such items are included under the rubric of ``attorneys fees'' and 
not ``costs'' so that such expenses will be assessed against a plaintiff 
only under the standard set forth in Christiansburg Garment Co. v. Equal 
Employment Opportunity Commission, 434 U.S. 412 (1978). (Judiciary 
report at 73.)

         Section 35.176  Alternative Means of Dispute Resolution

    Section 35.176 restates section 513 of the Act, which encourages use 
of alternative means of dispute resolution.

    Section 35.177  Effect of Unavailability of Technical Assistance

    Section 35.177 explains that, as provided in section 506(e) of the 
Act, a public entity is

[[Page 543]]

not excused from compliance with the requirements of this part because 
of any failure to receive technical assistance.

                     Section 35.178  State Immunity

    Section 35.178 restates the provision of section 502 of the Act that 
a State is not immune under the eleventh amendment to the Constitution 
of the United States from an action in Federal or State court for 
violations of the Act, and that the same remedies are available for any 
such violations as are available in an action against an entity other 
than a State.

                     Subpart G--Designated Agencies

                   Section 35.190  Designated Agencies

    Subpart G designates the Federal agencies responsible for 
investigating complaints under this part. At least 26 agencies currently 
administer programs of Federal financial assistance that are subject to 
the nondiscrimination requirements of section 504 as well as other civil 
rights statutes. A majority of these agencies administer modest programs 
of Federal financial assistance and/or devote minimal resources 
exclusively to ``external'' civil rights enforcement activities. Under 
Executive Order 12250, the Department of Justice has encouraged the use 
of delegation agreements under which certain civil rights compliance 
responsibilities for a class of recipients funded by more than one 
agency are delegated by an agency or agencies to a ``lead'' agency. For 
example, many agencies that fund institutions of higher education have 
signed agreements that designate the Department of Education as the 
``lead'' agency for this class of recipients.
    The use of delegation agreements reduces overlap and duplication of 
effort, and thereby strengthens overall civil rights enforcement. 
However, the use of these agreements to date generally has been limited 
to education and health care recipients. These classes of recipients are 
funded by numerous agencies and the logical connection to a lead agency 
is clear (e.g., the Department of Education for colleges and 
universities, and the Department of Health and Human Services for 
hospitals).
    The ADA's expanded coverage of State and local government operations 
further complicates the process of establishing Federal agency 
jurisdiction for the purpose of investigating complaints of 
discrimination on the basis of disability. Because all operations of 
public entities now are covered irrespective of the presence or absence 
of Federal financial assistance, many additional State and local 
government functions and organizations now are subject to Federal 
jurisdiction. In some cases, there is no historical or single clear-cut 
subject matter relationship with a Federal agency as was the case in the 
education example described above. Further, the 33,000 governmental 
jurisdictions subject to the ADA differ greatly in their organization, 
making a detailed and workable division of Federal agency jurisdiction 
by individual State, county, or municipal entity unrealistic.
    This regulation applies the delegation concept to the investigation 
of complaints of discrimination on the basis of disability by public 
entities under the ADA. It designates eight agencies, rather than all 
agencies currently administering programs of Federal financial 
assistance, as responsible for investigating complaints under this part. 
These ``designated agencies'' generally have the largest civil rights 
compliance staffs, the most experience in complaint investigations and 
disability issues, and broad yet clear subject area responsibilities. 
This division of responsibilities is made functionally rather than by 
public entity type or name designation. For example, all entities 
(regardless of their title) that exercise responsibilities, regulate, or 
administer services or programs relating to lands and natural resources 
fall within the jurisdiction of the Department of Interior.
    Complaints under this part will be investigated by the designated 
agency most closely related to the functions exercised by the 
governmental component against which the complaint is lodged. For 
example, a complaint against a State medical board, where such a board 
is a recognizable entity, will be investigated by the Department of 
Health and Human Services (the designated agency for regulatory 
activities relating to the provision of health care), even if the board 
is part of a general umbrella department of planning and regulation (for 
which the Department of Justice is the designated agency). If two or 
more agencies have apparent responsibility over a complaint, 
Sec. 35.190(c) provides that the Assistant Attorney General shall 
determine which one of the agencies shall be the designated agency for 
purposes of that complaint.
    Thirteen commenters, including four proposed designated agencies, 
addressed the Department of Justice's identification in the proposed 
regulation of nine ``designated agencies'' to investigate complaints 
under this part. Most comments addressed the proposed specific 
delegations to the various individual agencies. The Department of 
Justice agrees with several commenters who pointed out that 
responsibility for ``historic and cultural preservation'' functions 
appropriately belongs with the Department of Interior rather than the 
Department of Education. The Department of Justice also agrees with the 
Department of Education that ``museums'' more appropriately should be 
delegated to the Department of Interior, and that ``preschool and 
daycare programs'' more appropriately should be assigned to the

[[Page 544]]

Department of Health and Human Services, rather than to the Department 
of Education. The final rule reflects these decisions.
    The Department of Commerce opposed its listing as the designated 
agency for ``commerce and industry, including general economic 
development, banking and finance, consumer protection, insurance, and 
small business''. The Department of Commerce cited its lack of a 
substantial existing section 504 enforcement program and experience with 
many of the specific functions to be delegated. The Department of 
Justice accedes to the Department of Commerce's position, and has 
assigned itself as the designated agency for these functions.
    In response to a comment from the Department of Health and Human 
Services, the regulation's category of ``medical and nursing schools'' 
has been clarified to read ``schools of medicine, dentistry, nursing, 
and other health-related fields''. Also in response to a comment from 
the Department of Health and Human Services, ``correctional 
institutions'' have been specifically added to the public safety and 
administration of justice functions assigned to the Department of 
Justice.
    The regulation also assigns the Department of Justice as the 
designated agency responsible for all State and local government 
functions not assigned to other designated agencies. The Department of 
Justice, under an agreement with the Department of the Treasury, 
continues to receive and coordinate the investigation of complaints 
filed under the Revenue Sharing Act. This entitlement program, which was 
terminated in 1986, provided civil rights compliance jurisdiction for a 
wide variety of complaints regarding the use of Federal funds to support 
various general activities of local governments. In the absence of any 
similar program of Federal financial assistance administered by another 
Federal agency, placement of designated agency responsibilities for 
miscellaneous and otherwise undesignated functions with the Department 
of Justice is an appropriate continuation of current practice.
    The Department of Education objected to the proposed rule's 
inclusion of the functional area of ``arts and humanities'' within its 
responsibilities, and the Department of Housing and Urban Development 
objected to its proposed designation as responsible for activities 
relating to rent control, the real estate industry, and housing code 
enforcement. The Department has deleted these areas from the lists 
assigned to the Departments of Education and Housing and Urban 
Development, respectively, and has added a new paragraph (c) to 
Sec. 35.190, which provides that the Department of Justice may assign 
responsibility for components of State or local governments that 
exercise responsibilities, regulate, or administer services, programs, 
or activities relating to functions not assigned to specific designated 
agencies by paragraph (b) of this section to other appropriate agencies. 
The Department believes that this approach will provide more flexibility 
in determining the appropriate agency for investigation of complaints 
involving those components of State and local governments not 
specifically addressed by the listings in paragraph (b). As provided in 
Secs. 35.170 and 35.171, complaints filed with the Department of Justice 
will be referred to the appropriate agency.
    Several commenters proposed a stronger role for the Department of 
Justice, especially with respect to the receipt and assignment of 
complaints, and the overall monitoring of the effectiveness of the 
enforcement activities of Federal agencies. As discussed above, 
Secs. 35.170 and 35.171 have been revised to provide for referral of 
complaints by the Department of Justice to appropriate enforcement 
agencies. Also, language has been added to Sec. 35.190(a) of the final 
regulation stating that the Assistant Attorney General shall provide 
policy guidance and interpretations to designated agencies to ensure the 
consistent and effective implementation of this part.