[Federal Register Volume 79, Number 20 (Thursday, January 30, 2014)]
[Proposed Rules]
[Pages 4839-4862]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-01668]


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DEPARTMENT OF JUSTICE

28 CFR Parts 35 and 36

[CRT Docket No. 124; AG Order No. 3410-2014]
RIN 1190-AA59


Office of the Attorney General; Amendment of Americans with 
Disabilities Act Title II and Title III Regulations to Implement ADA 
Amendments Act of 2008

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice (Department) is issuing this Notice 
of Proposed Rulemaking (NPRM) to amend its Americans with Disabilities 
Act (ADA) regulations in order to incorporate the statutory changes to 
the ADA set forth in the ADA Amendments Act of 2008 (ADA Amendments Act 
or the Act), which took effect on January 1, 2009. Congress enacted the 
ADA Amendments Act in order to revise the ADA definition of 
``disability'' and to ensure that the definition is broadly construed 
and applied without extensive analysis. In this NPRM, the Department is 
proposing to add new sections to its title II and title III ADA 
regulations at 28 CFR parts 35 and 36, respectively, to provide 
detailed definitions of ``disability'' and to make consistent changes 
in other sections of the regulations. The ADA Amendments Act authorizes 
the Attorney General to issue regulations consistent with the Act that 
implement the definitions of ``disability'' in sections 3 and 4 of the 
Act, including the rules of construction set forth in section 3. The 
Department invites written comments from members of the public on this 
proposed rule.

DATES: All comments must be submitted on or before March 31, 2014.

ADDRESSES: You may submit comments, identified by RIN 1190-AA59 (or 
Docket ID No. 124), by any one of the following methods:
     Federal eRulemaking portal: www.regulations.gov. Follow 
the Web site's instructions for submitting comments.
     Regular U.S. mail: Disability Rights Section, Civil Rights 
Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-
0885.
     Overnight, courier, or hand delivery: Disability Rights 
Section, Civil Rights Division, U.S. Department of Justice, 1425 New 
York Avenue, NW., Suite 4039, Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Zita Johnson-Betts, Deputy Chief, 
Disability Rights Section, Civil Rights Division, U.S. Department of 
Justice, at (202) 307-0663 (voice or TTY); this is not a toll-free 
number. Information may also be obtained from the Department's toll-
free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 
(TTY).
    You may obtain copies of this NPRM in an alternative format by 
calling the ADA Information Line at (800) 514-0301 (voice) and (800) 
514-0383 (TTY). This NPRM is also available on the ADA Home Page at 
www.ada.gov.

SUPPLEMENTARY INFORMATION: The regulatory definitions of ``disability'' 
in the title II and title III regulations are identical, and the 
preamble will discuss the revisions to both regulations concurrently. 
Because the ADA Amendments Act's revisions to the ADA have been 
codified into the U.S. Code, the NPRM will reference the revised U.S. 
Code provisions except in those cases where citation to a specific ADA 
Amendments Act provision is necessary in order to avoid confusion on 
the part of the reader.
    This NPRM was submitted to the Office of Management and Budget's 
(OMB) Office of Information and Regulatory Affairs for review prior to 
publication in the Federal Register.

Electronic Submission of Comments and Posting of Public Comments

    You may submit electronic comments to www.regulations.gov. When 
submitting comments electronically, you must include ``DOJ-CRT 2010-
0112'' in the subject field and you must include your full name and 
address. Electronic files should avoid the use of special characters or 
any form of encryption and should be free of any defects or viruses.
    Please note that all comments received are considered part of the 
public record and made available for public inspection online at 
www.regulations.gov. Submission postings will include any personal 
identifying information (such as your name, address, etc.) included in 
the text of your comment. If you include personal identifying 
information (such as your name, address, etc.) in the text of your 
comment but do not want it to be posted online, you must include the 
phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of 
your comment. You must also include all the personal identifying 
information you want redacted along with this phrase. Similarly, if you 
submit confidential business information as part of your comment but do 
not want it to be posted online, you must include the phrase 
``CONFIDENTIAL BUSINESS

[[Page 4840]]

INFORMATION'' in the first paragraph of your comment. You must also 
prominently identify confidential business information to be redacted 
within the comment. If a comment has so much confidential business 
information that it cannot be effectively redacted, all or part of that 
comment may not be posted on www.regulations.gov.

I. Executive Summary

Purpose

    This rule is necessary in order to incorporate the ADA Amendments 
Act's changes to titles II (nondiscrimination in state and local 
government services) and III (nondiscrimination by public 
accommodations in commercial facilities) of the ADA into the 
Department's ADA regulations and to provide additional guidance on how 
to apply those changes.

Legal Authority

    The ADA Amendments Act was signed into law by President George W. 
Bush on September 25, 2008, with a statutory effective date of January 
1, 2009. Public Law 110-325, sec. 8, 122 Stat. 3553, 2559 (2008). The 
Act authorizes the Attorney General to issue regulations implementing 
the definitions of disability in sections 3 and 4 of the Act, including 
the rules of construction set forth in section 3, consistent with the 
Act as applied to title II and title III of the ADA. 42 U.S.C. 12205a.

Summary of Key Provisions of the Act and Rule

    The ADA Amendments Act made important changes to the ADA's 
definition of the term ``disability,'' making it easier for an 
individual seeking protection under the ADA to establish that he or she 
has a disability within the meaning of the statute. See 42 U.S.C. 
12102(1)(A)-(C). The Department proposes several major revisions to the 
definition of ``disability'' contained in the title II and title III 
ADA regulations. All of these revisions are based on specific 
provisions in the ADA Amendments Act or on specific language in the 
legislative history. These proposed revisions state that the definition 
of ``disability shall be interpreted broadly. The proposed revisions 
also make it clear that the primary object of attention in cases 
brought under the ADA should be whether entities covered under the ADA 
have complied with their statutory obligations and that the question of 
whether an individual's impairment is a disability under the ADA should 
not demand extensive analysis. In addition, the proposed revisions 
expand the definition of ``major life activities'' by providing a non-
exhaustive list of major life activities and specifically including the 
operation of major bodily functions. The revisions also add rules of 
construction that should be applied when determining whether an 
impairment substantially limits a major life activity. The rules of 
construction state the following:
    [cir] That the term ``substantially limits'' shall be construed 
broadly in favor of expansive coverage, to the maximum extent permitted 
by the terms of the ADA;
    [cir] That an impairment is a disability if it substantially limits 
the ability of an individual to perform a major life activity as 
compared to most people in the general population;
    [cir] That the primary issue in a case brought under the ADA should 
be whether the covered entity has complied with its obligations and 
whether discrimination has occurred, not the extent to which the 
individual's impairment substantially limits a major life activity;
    [cir] That in making the individualized assessment required by the 
ADA, the term ``substantially limits'' shall be interpreted and applied 
to require a degree of functional limitation that is lower than the 
standard for ``substantially limits'' applied prior to the ADA 
Amendments Act;
    [cir] That the comparison of an individual's performance of a major 
life activity to the performance of the same major life activity by 
most people in the general population usually will not require 
scientific, medical, or statistical evidence;
    [cir] That mitigating measures other than ``ordinary eyeglasses or 
contact lenses'' shall not be considered in assessing whether an 
individual has a ``disability'';
    [cir] That an impairment that is episodic or in remission is a 
disability if it would substantially limit a major life activity when 
active; and
    [cir] That an impairment that substantially limits one major life 
activity need not substantially limit other major life activities in 
order to be considered a substantially limiting impairment.
    The NPRM also proposes language that states that the definition of 
``regarded as'' does not require the individual to demonstrate that he 
or she has, or is perceived to have, an impairment that substantially 
limits a major life activity and provides that individuals covered only 
under the ``regarded as'' prong are not entitled to reasonable 
modifications.
    The ADA Amendments Act's revisions to the ADA apply to title I 
(employment), title II (State and local governments), and title III 
(public accommodations) of the ADA. Accordingly, consistent with 
Executive Order 13563's instruction to agencies to coordinate rules 
across agencies and harmonize regulatory requirements where 
appropriate, the Department is proposing, wherever possible, to adopt 
regulatory language that is identical to the revisions to the Equal 
Employment Opportunity Commission's (EEOC) title I regulations 
implementing the ADA Amendments Act. See 76 FR 16978 (Mar. 25, 2011). 
This will promote consistency in the application of the ADA and prevent 
confusion among entities subject to both titles I and II, as well as 
those subject to both titles I and III.

Summary of Benefits and Costs

    This proposed rule would incorporate into the Department's 
regulations the changes made by the ADA Amendments Act to titles II and 
III of the ADA. In accordance with OMB Circular A-4, the Department 
estimates the benefits and costs of this proposed rule using a pre-ADA 
Amendments Act baseline. Thus, the effects that are estimated in this 
analysis are due to statutory mandates that are not under the 
Department's discretion.
    Congress enacted the ADA Amendments Act to ensure that persons with 
disabilities who were refused access to programs and services would 
again be able to rely on the protections of the ADA. As a result, the 
Department believes that the enactment of the law has nonquantifiable 
but nonetheless important benefits for many Americans. The Department 
determined, however, that there was a specific group of individuals 
with disabilities who would be able to receive quantifiable benefits. 
With the enactment of the ADA Amendments Act, additional post-secondary 
students and national examination test takers (e.g., CPA, LSAT, and 
other professional examinations) with attention deficit disorder (ADD) 
or learning disabilities are now able to receive additional time to 
complete tests. Before the enactment of the ADA Amendments Act, some of 
these students may have had their requests for additional time denied 
by testing entities because such entities believed the disability in 
question did not meet the ADA's definition of ``disability.''
    In the first year after this rule goes into effect, our analysis 
estimates that

[[Page 4841]]

approximately 142,000 students will take advantage of additional 
testing accommodations that otherwise would not have been available but 
for the ADA Amendments Act. Over eleven years, approximately 1.6 
million full-time equivalent students would benefit, or, assuming an 
average 4-year course of study, more than 400,000 individual 
students.\1\ An additional 800,000 national examination test takers 
would benefit over that same eleven years (assuming that each test 
taker only takes an exam once). Providing these individuals additional 
time is consistent with our national values of fairness, equity, and 
human dignity--values that Executive Order 13563 permits agencies to 
consider, where appropriate, when analyzing the proposed rule's costs 
and benefits. See E.O. 13563, 76 FR 3821 (Jan. 18, 2011).
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    \1\ The number of individual students who would be impacted is a 
high-level estimate based on the assumption that students would 
average 4 years of post-secondary study; therefore 4 full-time 
equivalent enrollees per year is approximately one student, and then 
rounded to the nearest hundred thousand.
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    With respect to the costs of the changes under titles II and III 
made by the ADA Amendments Act, in the first year (the year with the 
highest costs), we estimate that the total undiscounted costs will 
range between $36.2 and $61.8 million. The changes made by the ADA 
Amendments Act are expected to cost $382 million in present value terms 
over 11 years and discounted at 7 percent. Our cost estimates include 
the value of time, represented by wages, for proctors to provide 
additional time to post-secondary students with ADD or learning 
disabilities to complete tests, and for proctors to provide additional 
time to individuals with ADD or learning disabilities to complete 
national examinations.

                     Summary of Discounted Costs and Benefits, 11 Year Total and Annualized
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                                 Estimates                                        Units
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                    Total discounted      Annualized
                         value             estimate         Year dollar       Discount rate      Period covered
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Benefits.........  Multiple un-quantified benefits for some unknown portion of those persons with learning
                    disabilities and society as a whole, including:
                   --Some persons with learning disabilities will earn a degree faster than they otherwise would
                    have, and some students might even earn a degree or certification who otherwise would not
                    been able to do so;
                   --Some persons with learning disabilities will earn a degree or certification for a higher
                    paying field/job;
                   --Some persons with learning disabilities will experience a positive impact on overall
                    independence and lifetime income;
                   --Some persons with learning disabilities will experience increased sense of personal dignity
                    and self-worth;
                   --Some persons with learning disabilities will experience greater personal satisfaction from
                    ability to pursue a favored career path or educational pursuit;
                   --Some communities may see a decreased direct financial support for persons with disabilities
                    or other programs or services; and
                   --Greater equity in access to education.
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Costs............  $381.7             $50.9              2013               7%                 2013-2023
                   $451.2             $48.8              2013               3%                 2013-2023
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II. Background

    The ADA Amendments Act was signed into law by President George W. 
Bush on September 25, 2008, with a statutory effective date of January 
1, 2009. Public Law 110-325, sec. 8. The ADA Amendments Act made 
important changes to the ADA's definition of the term ``disability,'' 
making it easier for an individual seeking protection under the ADA to 
establish that he or she has a disability within the meaning of the 
statute. The ADA Amendments Act did this by explicitly rejecting the 
holdings in several Supreme Court decisions that had significantly 
limited the definition of ``disability.'' As amended by the ADA 
Amendments Act, the definition of ``disability'' under the ADA, 42 
U.S.C. 12101, et seq., is to be construed broadly, to the maximum 
extent permitted by the terms of the ADA, and the determination of 
whether an individual has a disability should not demand extensive 
analysis. Public Law 110-325, sec. 2(b)(5); see also 154 Cong. Rec. 
S8840-44 (daily ed. Sept. 16, 2008) (Statement of the Managers); H.R. 
Rep. No. 110-730, pt. 1, at 6 (2008); H.R. Rep. No. 110-730, pt. 2, at 
5 (2008).
    The ADA Amendments Act retains the ADA's basic definition of 
``disability'' as: (1) A physical or mental impairment that 
substantially limits one or more major life activities; (2) a record of 
such an impairment; or (3) being regarded as having such an impairment. 
42 U.S.C. 12102(1)(A)-(C). However, it provides rules of construction 
necessary to ensure that the definition is construed broadly and 
without extensive analysis. Id. at 12102(4). The Department, therefore, 
drafted this rule to more fully align the Department's title II and 
title III regulations with the Act.
    Congress enacted the ADA Amendments Act in response to a series of 
Supreme Court decisions in which the Court interpreted the definition 
of ``disability'' narrowly, thus eliminating protection for many 
individuals that Congress intended to protect when it first enacted the 
ADA. Public Law 110-325, sec. 2. For example, in Sutton v. United Air 
Lines, Inc., 527 U.S. 471 (1999), the Court ruled that whether an 
impairment substantially limits a major life activity is to be 
determined with reference to the ameliorative effects of mitigating 
measures. Id. at 482. In Sutton, the Court also adopted a restrictive 
reading of the meaning of being ``regarded as'' disabled under the 
ADA's definition of disability, holding that the plaintiff could not 
prevail under this prong of the definition of disability without first 
demonstrating that the employer believed the plaintiff's impairment to 
be substantially limiting. Id. at 490. Subsequently, in Toyota Motor 
Manufacturing, Kentucky, Inc., v. Williams, 534 U.S. 184 (2002), the 
Court held that the terms ``substantially'' and ``major'' in the 
definition of disability ``need to be interpreted strictly to create a 
demanding standard for qualifying as disabled'' under the ADA, and that 
to be substantially limited in performing a major life activity under 
the ADA, ``an individual must have an impairment that prevents or 
severely restricts the individual from doing activities that are of 
central importance to most people's daily lives.'' Id. at 197-98.

[[Page 4842]]

    As a result of these Supreme Court decisions, lower courts ruled in 
numerous cases that individuals with a range of substantially limiting 
impairments were not individuals with disabilities and thus not 
protected by the ADA. See 154 Cong. Rec. S8841 (daily ed. Sept. 16, 
2008) (Statement of the Managers) (``After the Court's decisions in 
Sutton that impairments must be considered in their mitigated state and 
in Toyota that there must be a demanding standard for qualifying as 
disabled, lower courts more often found that an individual's impairment 
did not constitute a disability. As a result, in too many cases, courts 
would never reach the question whether discrimination had occurred.'').
    While the vast majority of these court decisions arose in the area 
of employment, the narrowing of the definition of disability had an 
adverse impact on individuals seeking the protection of the ADA in 
circumstances involving entities covered by titles II and III, 
particularly individuals seeking reasonable modifications for learning 
disabilities in education programs at colleges and universities and in 
licensing and testing situations. See, e.g., Gonzales v. National Board 
of Medical Examiners, 60 F. Supp. 2d 703 (E.D. Mich. 1999); and Wong v. 
Regents of University of California, 410 F.3d 1052 (9th Cir. 2005).
    Congress concluded that Sutton, Toyota, and their progeny 
interpreted the definition of disability more narrowly than what 
Congress had originally intended. Congress determined that these 
decisions, coupled with the EEOC's 1991 ADA regulation, which had 
defined the term ``substantially limits'' as meaning ``significantly 
restricted,'' unduly precluded many individuals from being covered 
under the ADA. See Public Law 110-325, sec. 2; see also 154 Cong. Rec. 
S8840-41 (daily ed. Sept. 16, 2008) (Statement of the Managers) 
(``Thus, some 18 years later we are faced with a situation in which 
physical or mental impairments that would previously have been found to 
constitute disabilities are not considered disabilities under the 
Supreme Court's narrower standard'' and ``[t]he resulting court 
decisions contribute to a legal environment in which individuals must 
demonstrate an inappropriately high degree of functional limitation in 
order to be protected from discrimination under the ADA.''). For that 
reason, Congress passed the ADA Amendments Act of 2008.

III. Summary of the ADA Amendments Act of 2008

    The ADA Amendments Act of 2008 restores the broad application of 
the ADA by revising the ADA's ``Findings and Purposes'' section, 
expanding the statutory language defining disability, providing 
specific rules of construction for that definition, and expressly 
rejecting the holdings of the Supreme Court in Sutton, Toyota and their 
progeny.
    First, the ADA Amendments Act deletes two findings that were in the 
ADA: (1) That ``some 43,000,000 Americans have one or more physical or 
mental disabilities,'' and (2) that ``individuals with disabilities are 
a discrete and insular minority.'' 154 Cong. Rec. S8840 (daily ed. 
Sept. 16, 2008) (Statement of the Managers); see also Public Law 110-
325, sec. 3. The 2008 Senate Statement of the Managers stated, ``[t]he 
[Supreme] Court treated these findings as limitations on how it 
construed other provisions of the ADA. This conclusion had the effect 
of interfering with previous judicial precedents holding that, like 
other civil rights statutes, the ADA must be construed broadly to 
effectuate its remedial purpose. Deleting these findings removes this 
barrier to construing and applying the definition of disability more 
generously.'' 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) 
(Statement of the Managers).
    Second, the ADA Amendments Act clarifies Congress's intent that the 
definition of ``disability'' ``shall be construed in favor of broad 
coverage of individuals under this Act, to the maximum extent permitted 
by the terms of this Act.'' 42 U.S.C. 12102(4)(A). Although the ADA 
Amendments Act retains the term ``substantially limits'' from the 
original ADA definition, the language of the rules of construction and 
the statement of ``Findings and Purposes'' contained in the ADA 
Amendments Act make it clear that this language is required to be 
interpreted far more broadly than it had been interpreted in Toyota. 
Congress was specifically concerned that the lower courts had applied 
Toyota in a way that ``created an inappropriately high level of 
limitation necessary to obtain coverage under the ADA.'' Public Law 
110-325, sec. 2(b)(5). Congress sought to convey that ``the primary 
object of attention in cases brought under the ADA should be whether 
entities covered under the ADA have complied with their obligations and 
to convey that the question of whether an individual's impairment is a 
disability under the ADA should not demand extensive analysis.'' Id.
    Third, the ADA Amendments Act prohibits consideration of mitigating 
measures such as medication, assistive technology, and reasonable 
accommodations or modifications when determining whether an impairment 
constitutes a disability. 42 U.S.C. 12102(4)(E)(i). Congress added this 
provision and the applicable purpose language in the ADA Amendments Act 
to ensure that the ADA was interpreted and applied without reliance on 
the Supreme Court's holdings that mitigating measures must be 
considered in determining whether an impairment substantially limits a 
major life activity. Public Law 110-325, sec. 2(b). The statute also 
provides that impairments that are episodic or in remission are 
disabilities if they would substantially limit a major life activity 
when active. 42 U.S.C. 12102(4)(D).
    Fourth, the ADA Amendments Act provides new instructions on what 
may constitute ``major life activities'' within the meaning of the ADA. 
42 U.S.C. 12102(2). It provides a non-exhaustive list of major life 
activities and specifically expands the category of major life 
activities to include the operation of major bodily functions. Id.
    Fifth, the ADA Amendments Act makes it clear that, contrary to 
court decisions interpreting the ADA, the ``regarded as'' prong of the 
disability definition does not require the individual to demonstrate 
that he or she has, or is perceived to have, an impairment that 
substantially limits a major life activity. 42 U.S.C. 12102(3). With 
this clarifying language, an individual can once again establish 
coverage under the law by showing that he or she has been subjected to 
an action prohibited under the Act because of an actual or perceived 
physical or mental impairment. The ADA Amendments Act also provides 
that entities covered by the ADA will not be required to provide 
reasonable accommodations or modifications to policies, practices, and 
procedures for individuals who fall solely under this prong. 42 U.S.C. 
12201(h).
    Finally, the ADA Amendments Act makes it clear that the Attorney 
General has explicit authority to issue regulations implementing the 
definitions of disability contained in sections 3 and 4 (including 
rules of construction) of the ADA. 42 U.S.C. 12205a.

[[Page 4843]]

IV. Relationship of this Regulation to Revisions to the Equal 
Employment Opportunity Commission's ADA Title I Regulation Implementing 
the ADA Amendments Act of 2008

    The Equal Employment Opportunity Commission (EEOC) is responsible 
for regulations implementing title I of the ADA addressing employment 
discrimination based upon disability. On March 25, 2011, the EEOC 
published its final rule revising its title I regulation to implement 
the revisions to the ADA contained in the ADA Amendments Act. 76 FR 
16978.\2\
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    \2\ On September 23, 2009, the EEOC published its NPRM in the 
Federal Register proposing revisions to the title I definition of 
disability. See 74 FR 48431. The EEOC received and reviewed over 600 
public comments in response to its NRPM. In addition, the EEOC and 
the Department held four joint ``Town Hall Listening Sessions'' 
throughout the United States and heard testimony from more than 60 
individuals and representatives of the business/employer industry 
and the disability advocacy community.
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    Because the ADA Amendments Act's revised definition of 
``disability'' applies to title I as well as titles II and III of the 
ADA, the Department has made every effort to ensure that its proposed 
revisions to its title II and III regulations are consistent with, if 
not always identical to, the provisions of the EEOC final rule. 
Consistency among the title I, title II, and title III rules will 
ensure consistent application of the requirements of the ADA Amendments 
Act, regardless of the Federal agency responsible for enforcement, or 
the ADA title that is enforced. This consistency is also important 
because most entities subject to either title II or title III are also 
subject to title I with respect to employment, and should already be 
familiar with the revisions to the definition of ``disability'' in the 
2-year-old EEOC revised regulation. Differences in language between the 
title I rules and the Department's proposed title II and title III 
rules are generally attributable either to the fact that certain 
sections of the EEOC rule deal with employment-specific issues or to 
structural differences between the title I rule and the title II and 
III rules.

V. Section-by-Section Analysis

Sections 35.101 and 36.101--Purpose and Broad Coverage

    These sections propose to revise Sec. Sec.  35.101 and 36.101 to 
add references to the ADA Amendments Act to Sec. Sec.  35.101(a) and 
36.101(a) and to add new Sec. Sec.  35.101(b) and 36.101(b), which 
explain that ``[t]he primary purpose of the ADA Amendments Act is to 
make it easier for people with disabilities to obtain protection under 
the ADA.'' These sections state that ``[c]onsistent with the ADA 
Amendments Act's purpose of reinstating a broad scope of protection 
under the ADA, the definition of `disability' in this part shall be 
construed broadly in favor of expansive coverage to the maximum extent 
permitted by the terms of the ADA. The primary object of attention in 
cases brought under the ADA should be whether entities covered under 
the ADA have complied with their obligations. . . . The question of 
whether an individual meets the definition of disability under this 
part should not demand extensive analysis.''

Sections 35.104 and 36.104--Definitions

    The current title II and title III regulations include the 
definition of ``disability'' in regulatory sections that contain all 
enumerated definitions in alphabetical order. Given the expanded length 
of the definition of ``disability'' and the number of additional 
subsections required in order to give effect to the ADA Amendments Act 
revisions, the Department is proposing to move the definition of 
``disability'' from the general definitional sections at Sec. Sec.  
35.104 and 36.104 to its own new section in each regulation, Sec. Sec.  
35.108 and 36.105, respectively.

Sections 35.108(a)(1) and 36.105(a)(1) Definition of Disability--
General

    These sections of the regulations set forth the three-part basic 
definition of the term ``disability'' found in the prior version of the 
ADA that the ADA Amendments Act retained with minor revisions. The 
current ADA regulations state the following:
    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.
    The ADA, as amended by the ADA Amendments Act, limits the 
application of the ``regarded as'' prong to impairments that are not 
``transitory and minor'' and defines a transitory impairment as ``an 
impairment with an actual or expected duration of 6 months or less.'' 
42 U.S.C. 12102(3)(B). To reflect these amendments to the ADA, the 
Department proposes to modify the ``regarded as'' prong in the current 
regulations by adding a sentence at proposed Sec. Sec.  
35.108(a)(1)(iii) and 36.105(a)(1)(iii) that limits the application of 
the ``regarded as'' prong and references proposed Sec. Sec.  35.108(f) 
and 36.105(f), which define the phrase ``regarded as having such an 
impairment.'' Proposed Sec. Sec.  35.108(f) and 36.105(f) clarify that 
an individual is ``regarded as'' having an impairment if he or she has 
been subject to an action prohibited by the ADA, as amended, because of 
an actual or perceived impairment that is not both ``transitory and 
minor.'' It may be a defense to a charge of discrimination by an 
individual claiming coverage under this prong if the covered entity 
demonstrates that the impairment is both ``transitory and minor.''

Sections 35.108(a)(2) and 36.105(a)(2)--Rules of Construction

    These sections set forth rules of construction that give guidance 
on how to understand and apply the definition of disability. Proposed 
Sec. Sec.  35.108(a)(2)(i) and 36.105(a)(2)(i) provide that an 
individual may establish coverage under any one or more of the prongs 
in the definition of disability. See Sec. Sec.  35.108(a)(1)(i)-(iii); 
36.105(a)(1)(i)-(iii). To be covered under the ADA, however, an 
individual is only required to satisfy one prong. The term ``actual 
disability'' is used in these rules of construction as short-hand 
terminology to refer to an impairment that substantially limits a major 
life activity within the meaning of the first prong of the definition 
of disability. See Sec. Sec.  35.108(a)(1)(i); 36.105(a)(1)(i). The 
terminology selected is for ease of reference. It is not intended to 
suggest that an individual with a disability who is covered under the 
first prong has any greater rights under the ADA than an individual who 
is covered under the ``record of'' or ``regarded as'' prongs, with the 
exception that the ADA, as amended, expressly states that an individual 
who meets the definition of disability solely under the ``regarded as'' 
prong is not entitled to reasonable modifications of policies, 
practices, or procedures. See 42 U.S.C. 12201(h).
    Sections 35.108(a)(2)(ii) and 36.105(a)(2)(ii) are intended to 
amend the definition of ``disability'' to incorporate Congress's 
expectation that consideration of coverage under the first and second 
prongs of the definition of ``disability'' will generally not be 
necessary except in cases involving requests for reasonable 
modifications. See 154 Cong. Rec. H6068 (daily ed. June 25, 2008) 
(joint statement of Reps. Steny Hoyer and Jim Sensenbrenner). 
Accordingly, Sec.  35.108(a)(2)(ii) states that ``[w]here an individual 
is not challenging a public entity's failure to provide reasonable 
modifications under Sec.  35.130(b)(7), it is generally unnecessary to 
proceed under the `actual disability' or `record of' prongs,

[[Page 4844]]

which require a showing of an impairment that substantially limits a 
major life activity or a record of such an impairment. In these cases, 
the evaluation of coverage can be made solely under the `regarded as' 
prong of the definition of disability, which does not require a showing 
of an impairment that substantially limits a major life activity or a 
record of such an impairment. An individual may choose, however, to 
proceed under the `actual disability' or `record of' prong regardless 
of whether the individual is challenging a public entity's failure to 
provide reasonable modifications.''
    Similarly, Sec.  36.105(a)(2)(ii) states ``[w]here an individual is 
not challenging a covered entity's failure to provide reasonable 
modifications under Sec.  36.302, it is generally unnecessary to 
proceed under the `actual disability' or `record of' prongs, which 
require a showing of an impairment that substantially limits a major 
life activity or a record of such an impairment. In these cases, the 
evaluation of coverage can be made solely under the `regarded as' prong 
of the definition of disability, which does not require a showing of an 
impairment that substantially limits a major life activity or a record 
of such an impairment. An individual may choose, however, to proceed 
under the `actual disability' or `record of' prong regardless of 
whether the individual is challenging a covered entity's failure to 
provide reasonable modifications.''

Sections 35.108(b) and 36.105(b)--Physical or Mental Impairment

    The ADA Amendments Act does not change the meaning of the term 
``physical or mental impairment.'' Thus, the Department is retaining 
the general regulatory definitions for this term with only minor 
modifications. First, the Department is proposing to add examples of 
two new body systems--the immune system and the circulatory system--
that may be affected by a physical impairment. See Sec. Sec.  
35.108(b)(1)(i); 36.105(b)(1)(i). In addition, the Department is adding 
a reference to ``dyslexia'' to Sec. Sec.  35.108(b)(2) and 36.105(b)(2) 
as an example of a specific learning disability that falls within the 
meaning of the phrase ``physical or mental impairment.'' The Department 
is proposing to add the reference to ``dyslexia'' (i.e., a specific 
diagnosable learning disability that causes difficulties in reading and 
speaking unrelated to intelligence and education) because the 
Department has become aware that some covered entities mistakenly 
believe that dyslexia is not a clinically diagnosable impairment. The 
Department is interested in public comment regarding its proposed 
inclusion of a reference to dyslexia.
    The definition of ``disability'' does not include characteristic 
predisposition to illness or disease. Other conditions, such as 
pregnancy, that are not the result of a physiological disorder are also 
not impairments. However, a pregnancy-related impairment that 
substantially limits a major life activity is a disability under the 
first prong of the definition. Alternatively, a pregnancy-related 
impairment may constitute a ``record of'' a substantially limiting 
impairment, or may be covered under the ``regarded as'' prong if it is 
the basis for a prohibited action and is not both ``transitory and 
minor.''

Sections 35.108(c) and 36.105(c)--Major Life Activities

    Prior to the ADA Amendments Act, the ADA did not define ``major 
life activities,'' leaving delineation of illustrative examples to 
agency regulations. Section 2 of the definition of ``disability'' in 
the Department's current title II and title III regulations states that 
``[t]he phrase major life activities means functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.'' See 28 CFR 35.104; id. at 
36.104
    The ADA, as amended, incorporates into the statutory language a 
non-exhaustive list of major life activities that includes, but is not 
limited to, ``caring for oneself, performing manual tasks, seeing, 
hearing, eating, sleeping, walking, standing, lifting, bending, 
speaking, breathing, learning, reading, concentrating, thinking, 
communicating, and working.'' 42 U.S.C. 12102(2)(A). This list reflects 
Congress's concern that courts were interpreting the term ``major life 
activities'' more narrowly than Congress intended. See 42 U.S.C 
.12101(b)(4). In Sec. Sec.  35.108(c) and 36.105(c), the Department 
proposes to revise its title II and title III regulatory definitions of 
disability to incorporate the statutory examples as well as to provide 
additional examples included in the EEOC title I final regulation--
reaching, sitting, and interacting with others, see 29 CFR 
1630.2(i)(1)(i).
    In addition, the ADA, as amended, specifies that a person may meet 
the definition of ``disability'' if he or she has a physical or mental 
impairment that substantially limits the operation of a ``major bodily 
function,'' which includes the ``functions of the immune system, normal 
cell growth, digestive, bowel, bladder, neurological, brain, 
respiratory, circulatory, endocrine, and reproductive functions.'' 42 
U.S.C. 12102(2)(B). The Department is proposing to revise its 
regulatory definitions of disability at Sec. Sec.  35.108(c)(1)(ii) and 
36.105(c)(1)(ii) to make it clear that the operations of major bodily 
functions are major life activities, and to include a non-exclusive 
list of examples of major bodily functions, consistent with the 
language of the statute. In addition to the examples included in the 
statute, the Department proposes to include the following additional 
examples: the functions of the special sense organs and skin, 
genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal 
systems. These six major bodily functions are also specified in the 
EEOC title I final regulation. 29 CFR 1630.2(i)(1)(i).
    The Department cautions that both the lists of major life 
activities and major bodily functions are illustrative. The absence of 
a particular life activity or bodily function from the list should not 
create a negative implication as to whether such activity or function 
constitutes a major life activity under the statute or the implementing 
regulation.
    Consistent with the ADA, as amended, proposed Sec. Sec.  
35.108(c)(2) and 36.105(c)(2) also state that, ``[i]n determining other 
examples of major life activities, the term `major' shall not be 
interpreted strictly to create a demanding standard for disability.'' 
Moreover, the proposed regulations provide that ``[w]hether an activity 
is a `major life activity' is not determined by reference to whether 
the activity is of `central importance to daily life.''' See Sec. Sec.  
35.108(c)(2), 36.105(c)(2).

Sections 35.108(d) and 36.105(d)--Substantially Limits

    Overview. The ADA, as amended, states that the term ``substantially 
limits'' is intended to be ``interpreted consistently with the findings 
and purposes of the ADA Amendments Act.'' 42 U.S.C. 12102(4)(B). One 
stated purpose of the Act is to expressly ``reject the standards 
enunciated by the Supreme Court in Toyota Motor Manufacturing, 
Kentucky, Inc. v. Williams . . . that the terms `substantially' and 
`major' in the definition of disability under the ADA `need to be 
interpreted strictly to create a demanding standard for qualifying as 
disabled,' and that to be substantially limited in performing a major 
life activity under the ADA `an individual must have an impairment that 
prevents or severely restricts the individual from doing activities 
that are of central

[[Page 4845]]

importance to most people's daily lives.' '' Public Law 110-325, sec. 
2(b)(4). The Department proposes to add nine rules of construction at 
Sec. Sec.  35.108(d) and 36.105(d) clarifying the meaning of 
``substantially limits'' when determining whether an impairment 
substantially limits an individual in a major life activity consistent 
with the mandates of the ADA Amendments Act. These rules of 
construction are based on the requirements of the statute and the clear 
mandates of the legislative history and are as follows:
    Broad construction--not a demanding standard. Proposed Sec. Sec.  
35.108(d)(1)(i) and 36.105(d)(1)(i) state that ``[t]he term 
`substantially limits' shall be construed broadly in favor of expansive 
coverage, to the maximum extent permitted by the terms of the ADA. 
`Substantially limits' is not meant to be a demanding standard.'' See 
42 U.S.C. 12102(4)(A).
    Comparison to most people in the population. Proposed Sec. Sec.  
35.108(d)(1)(ii) and 36.105(d)(1)(ii) state that ``[a]n impairment is a 
disability within the meaning of this part if it substantially limits 
the ability of an individual to perform a major life activity as 
compared to most people in the general population.'' The Department 
cautions that this rule of construction addresses how to determine 
whether the individual's impairment substantially limits a major life 
activity and not how the impairment is diagnosed. For example, when a 
person is diagnosed with the impairment of a learning disability, one 
accepted method of arriving at that diagnosis is the administration of 
specific tests to determine whether there is a significant discrepancy 
between the individual's intelligence or aptitude and the individual's 
academic achievement. Having established the existence of the 
impairment (here, a learning disability), the individual must still 
demonstrate that his or her impairment substantially limits a major 
life activity as compared to most people in the general population.
    Significant or severe restriction not required. Proposed Sec. Sec.  
35.108(d)(1)(ii) and 36.105(d)(1)(ii) also state ``[a]n impairment need 
not prevent, or significantly or severely restrict, the individual from 
performing a major life activity in order to be considered 
substantially limiting.'' See 154 Cong. Rec. S8840-42 (daily ed. Sept. 
16, 2008) (Statement of the Managers); H.R. Rep. No. 110-730, pt. 1, at 
9-10 (2008). (``While the limitation imposed by an impairment must be 
important, it need not rise to the level of severely restricting or 
significantly restricting the ability to perform a major life activity 
in order to qualify as a disability.'') In the findings and purposes of 
the ADA Amendments Act, Congress expressed concern that courts had 
required persons with disabilities seeking the protections of the ADA 
to demonstrate a greater degree of limitation than had been intended by 
Congress. Public Law 110-325, sec. 2(a)(7). In addition, Congress 
specifically found that the EEOC's ADA title I regulation had expressed 
too high a standard for proving disability by defining the term 
``substantially limits'' as ``significantly restricted.'' See Public 
Law 110-325, sec. 2(a)(7), (8).
    Primary focus of ADA cases. Proposed Sec. Sec.  35.108(d)(1)(iii) 
and 36.105(d)(1)(iii) state that ``[t]he primary object of attention in 
cases brought under the [ADA] should be whether [public entities/
covered entities] have complied with their obligations and whether 
discrimination has occurred, not the extent to which an individual's 
impairment substantially limits a major life activity. Accordingly, the 
threshold issue of whether an impairment substantially limits a major 
life activity should not demand extensive analysis.'' Congress 
recognized that ``clearing the initial [disability] threshold is 
critical, as individuals who are excluded from the definition `never 
have the opportunity to have their condition evaluated in light of 
medical evidence and a determination made as to whether they [are] 
`otherwise qualified.' '' H.R. Rep. No. 110-730 pt. 2, at 7 (2008) 
(internal quotation marks and citation omitted). This rule of 
construction addresses that concern.
    ``Substantially limits'' shall be interpreted to require a lesser 
degree of functional limitation than that provided prior to the ADA 
Amendments Act. Proposed Sec. Sec.  35.108(d)(1)(iv) and 
36.105(d)(1)(iv) state that ``[t]he determination of whether an 
impairment substantially limits a major life activity requires an 
individualized assessment. However, in making this assessment, the term 
`substantially limits' shall be interpreted and applied to require a 
degree of functional limitation that is lower than the standard for 
substantially limits applied prior to the ADA Amendments Act.'' This 
rule of construction reflects Congress's concern that prior to the 
adoption of the ADA Amendments Act, courts were using too high a 
standard to determine whether an impairment substantially limited a 
major life activity. See Public Law 110-325, sec. 2(b)(4), (5).
    Scientific, medical, or statistical evidence. Proposed Sec. Sec.  
35.108(d)(1)(v) and 36.105(d)(1)(v) state that ``[t]he comparison of an 
individual's performance of a major life activity to the performance of 
the same major life activity by most people in the general population 
usually will not require scientific, medical, or statistical evidence. 
Nothing in this paragraph is intended, however, to prohibit or limit 
the use of scientific, medical, or statistical evidence in making such 
a comparison where appropriate.''
    Determination made without regard to mitigating measures. The ADA, 
as amended, expressly prohibits any consideration of the ameliorative 
effects of mitigating measures when determining whether an individual's 
impairment substantially limits a major life activity, save for the 
ameliorative effects of ordinary eyeglasses or contact lenses. 42 
U.S.C. 12102(4)(E). Section 12102(4)(E)(i) provides an illustrative, 
but non-exhaustive, list of different types of mitigating measures that 
must be considered in determining whether an individual has a covered 
disability. Id.
    Proposed Sec. Sec.  35.108(d)(1)(vi) and 36.105(d)(1)(vi) track the 
revised statutory language prohibiting consideration of mitigating 
measures (with one identified exception). Proposed Sec. Sec.  
35.108(d)(4) and 36.105(d)(4), discussed below, set forth examples of 
mitigating measures.
    Impairments that are episodic or in remission. Proposed Sec. Sec.  
35.108(d)(1)(vii) and 36.105(d)(1)(vii) state that ``[a]n impairment 
that is episodic or in remission is a disability if it would 
substantially limit a major life activity when active.'' See 42 U.S.C. 
12102(4)(D). For example, a person with multiple sclerosis (MS) who is 
substantially limited in a major life activity when her MS is active, 
would be considered a person with a disability even when her condition 
is in remission. Similarly, a person who has a seizure disorder that 
manifests with episodic seizures that substantially limit a major life 
activity would be a person with a disability even though he is not 
substantially limited in a major life activity when his seizure 
disorder is not active.
    Impairment need not substantially limit more than one major life 
activity. Proposed Sec. Sec.  35.108(d)(1)(viii) and 36.105(d)(1)(viii) 
state that ``[a]n impairment that substantially limits one major life 
activity need not substantially limit other major life activities in 
order to be considered a substantially limiting impairment.'' See 42 
U.S.C. 12102(4)(C). This language reflects the statutory intent to 
reject court decisions that had required individuals to show that an 
impairment substantially limits more

[[Page 4846]]

than one major life activity. See 154 Cong. Rec. S8842 (daily ed. Sept. 
16, 2008) (Statement of the Managers). It is also intended to clarify 
that the ability to perform one or more particular tasks within a broad 
category of activities does not preclude coverage under the ADA. For 
example, even if a person could engage in the manual activity of 
brushing his teeth or washing his face, he could still be a person with 
a disability if he were limited in the ability to perform other manual 
tasks.
    Transitory and minor exception. The ADA, as amended, provides that 
the ``regarded as'' prong of the definition of ``disability'' does 
``not apply to impairments that are [both] transitory and minor.'' 42 
U.S.C. 12102(3)(B). ``[T]ransitory impairment'' is defined as ``an 
impairment with an actual or expected duration of six months or less.'' 
See id. As discussed below, Sec. Sec.  35.108(f) and 36.105(f) 
incorporate this exception into the determination of disability under 
the ``regarded as'' prong. Whether an impairment is both transitory and 
minor is a question of fact that is dependent upon individual 
circumstances; however, it is likely that an uncomplicated sprained 
ankle with an expected recovery time of three months, for example, 
would be an impairment that is both transitory and minor.
    The proposed rules of construction at Sec. Sec.  35.108(d)(1)(ix) 
and 36.105(d)(1)(ix) further clarify that an impairment that lasts or 
is expected to last less than six months and that substantially limits 
a major life activity can be a disability under the first two prongs of 
the definition of ``disability.'' See 154 Cong. Rec. H6067 (daily ed. 
June 25, 2008) (joint statement of Reps. Steny Hoyer and Jim 
Sensenbrenner) (``[T]here is no need for the transitory and minor 
exception under the first two prongs because it is clear from the 
statute and the legislative history that a person can only bring a 
claim if the impairment substantially limits one or more major life 
activities or the individual has a record of an impairment that 
substantially limits one or more major life activities.'')

Sections 35.108(d)(2) and 36.105(d)(2)--Predictable Assessments

    Although there are no ``per se'' disabilities, the Department 
believes that the inherent nature of certain impairments will in 
virtually all cases give rise to a substantial limitation of a major 
life activity. Proposed Sec. Sec.  35.108(d)(2) and 36.105(d)(2) 
provide examples of impairments that should easily be found to 
substantially limit a major life activity. Cf. Heiko v. Columbo Savings 
Bank, F.S.B., 434 F.3d 249, 256 (4th Cir. 2006) (stating, even pre-ADA 
Amendments Act, that ``certain impairments are by their very nature 
substantially limiting: the major life activity of seeing, for example, 
is always substantially limited by blindness''). The analysis of 
whether the types of impairments referenced in these sections 
substantially limit a major life activity does not depart from the 
hallmark individualized assessment required by the ADA. These sections 
recognize that applying the various principles and rules of 
construction concerning the definition of ``disability,'' the 
individualized assessment of some types of impairments will, in 
virtually all cases, result in the conclusion that the impairment 
substantially limits a major life activity, and thus the necessary 
individualized assessment of these types of impairments should be 
particularly simple and straightforward.
    For example, and as provided in proposed Sec. Sec.  35.108(d)(2) 
and 36.105(d)(2), applying the rules of construction set forth in 
Sec. Sec.  35.108(d)(1) and 36.105(d)(1), it should easily be concluded 
that the following non-exhaustive examples of types of impairments 
will, at a minimum, substantially limit the major life activities 
indicated: deafness substantially limits hearing and auditory function; 
blindness substantially limits visual function; an intellectual 
disability \3\ substantially limits reading, learning, and problem 
solving; partially or completely missing limbs or mobility impairments 
requiring the use of a wheelchair substantially limit musculoskeletal 
function; autism substantially limits learning, social interaction, and 
communication; cancer substantially limits normal cell growth; cerebral 
palsy substantially limits brain function; diabetes substantially 
limits endocrine function; epilepsy, muscular dystrophy, and multiple 
sclerosis substantially limit neurological function; Human 
Immunodeficiency Virus (HIV) infection substantially limits immune 
function; and major depressive disorder, bipolar disorder, post-
traumatic stress disorder, traumatic brain injury, obsessive compulsive 
disorder, and schizophrenia substantially limit brain function.
---------------------------------------------------------------------------

    \3\ This term is intended to replace the term ``mental 
retardation,'' which is a term that is no longer used.
---------------------------------------------------------------------------

    Of course, the impairments listed in Sec. Sec.  35.108(d)(2) and 
36.105(d)(2) may substantially limit a variety of other major life 
activities in addition to those listed in the regulation. For example, 
diabetes may substantially limit major life activities such as eating, 
sleeping, and thinking. Major depressive disorder may substantially 
limit major life activities such as thinking, concentrating, sleeping, 
and interacting with others. Multiple sclerosis may substantially limit 
major life activities such as walking, bending, and lifting. Autism may 
substantially impair the major life activity of caring for oneself.

Sections 35.108(d)(3) and 36.105(d)(3)--Condition, Manner, and Duration

    The preambles to the Department's original title II and title III 
regulations noted that a person is considered an individual with a 
disability for purposes of the first prong of the definition when one 
or more of 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. 56 FR 35694, 35699 (July 26, 
1991). In the 2008 Senate Statement of the Managers, Congress 
reiterated what it had said at the time of the original ADA: ``A person 
is considered an individual with a disability for purposes of the first 
prong of the definition when [one or more of] 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.'' 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008)) (citing S. 
Rep. No. 101-116, at 23 (1989)). Congress also stated the following:

    We particularly believe that this test, which articulated an 
analysis that considered whether a person's activities are limited 
in condition, duration and manner, is a useful one. We reiterate 
that using the correct standard--one that is lower than the strict 
or demanding standard created by the Supreme Court in Toyota--will 
make the disability determination an appropriate threshold issue but 
not an onerous burden for those seeking accommodations. . . . At the 
same time, plaintiffs should not be constrained from offering 
evidence needed to establish that their impairment is substantially 
limiting.

Id.

    The Department has included this standard in proposed Sec. Sec.  
35.108(d)(3) and 36.105(d)(3), which provide that, taking into account 
the rules of construction in Sec. Sec.  35.108(d)(1) and 36.105(d)(1), 
``in determining whether an individual is substantially limited in a 
major life activity, it may be useful in appropriate cases to consider, 
as compared to most people in the general population, the conditions 
under which the individual performs the major life activity; the manner 
in which the individual performs the major life activity; or the 
duration of time it takes

[[Page 4847]]

the individual to perform the major life activity, or for which the 
individual can perform the major life activity.''
    An impairment may substantially limit the ``condition'' or 
``manner'' under which a major life activity can be performed in a 
number of different ways. For example, the condition or manner under 
which a major life activity can be performed may refer to how an 
individual performs a major life activity; e.g., the condition or 
manner under which a person with an amputated hand performs manual 
tasks will likely be more cumbersome than the way that someone with two 
hands would perform the same tasks.
    Condition or manner may also describe how performance of a major 
life activity affects the individual with an impairment. For example, 
an individual whose impairment causes pain or fatigue that most people 
would not experience when performing that major life activity may be 
substantially limited. Thus, the condition or manner under which 
someone with coronary artery disease performs the major life activity 
of walking would be substantially limited if the individual experiences 
shortness of breath and fatigue when walking distances that most people 
could walk without experiencing such effects. Similarly, condition or 
manner may refer to the extent to which a major life activity, 
including a major bodily function, can be performed. In some cases, the 
condition or manner under which a major bodily function can be 
performed may be substantially limited when the impairment ``causes the 
operation [of the bodily function] to over-produce or under-produce in 
some harmful fashion.'' See H.R. Rep. No. 110-730, pt. 2, at 17 (2008). 
For example, the endocrine system of a person with type I diabetes does 
not produce sufficient insulin.
    ``Duration'' refers to the length of time an individual can perform 
a major life activity or the length of time it takes an individual to 
perform a major life activity, as compared to most people in the 
general population. For example, a person whose back or leg impairment 
precludes him or her from standing for more than two hours without 
significant pain would be substantially limited in standing, because 
most people can stand for more than two hours without significant pain. 
However, ``[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.'' See 
154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the 
Managers) (citing S. Rep. No. 101-116, at 23 (1989).
    Condition, manner, or duration may also suggest the amount of time 
or effort an individual has to expend when performing a major life 
activity because of the effects of an impairment, even if the 
individual is able to achieve the same or similar result as someone 
without the impairment. For this reason, Sec. Sec.  35.108(d)(3)(iii) 
and 36.105(d)(3)(iii) include language that says that the outcome an 
individual with a disability is able to achieve is not determinative of 
whether he or she is substantially limited in a major life activity.
    For example, someone with a learning disability may achieve a high 
level of academic success, but may, nevertheless, be substantially 
limited in one or more of the major life activities of reading, 
writing, speaking, or learning because of the additional time or effort 
he or she must spend to read, speak, write, or learn compared to most 
people in the general population. As Congress emphasized in passing the 
ADA Amendments Act, ``[w]hen considering the condition, manner, or 
duration in which an individual with a specific learning disability 
performs a major life activity, it is critical to reject the assumption 
that an individual who has performed well academically cannot be 
substantially limited in activities such as learning, reading, writing, 
thinking, or speaking.'' 154 Cong. Rec. S8842 (daily ed. Sept. 16, 
2008) (Statement of the Managers). The House Education and Labor 
Committee Report noted that:

    In particular, some courts have found that students who have 
reached a high level of academic achievement are not to be 
considered individuals with disabilities under the ADA, as such 
individuals may have difficulty demonstrating substantial limitation 
in the major life activities of learning or reading relative to 
``most people.'' When considering the condition, manner or duration 
in which an individual with a specific learning disability performs 
a major life activity, it is critical to reject the assumption that 
an individual who performs well academically or otherwise cannot be 
substantially limited in activities such as learning, reading, 
writing, thinking, or speaking. As such, the Committee rejects the 
findings in Price v. National Board of Medical Examiners, Gonzales 
v. National Board of Medical Examiners, and Wong v. Regents of 
University of California.
    The Committee believes that the comparison of individuals with 
specific learning disabilities to ``most people'' is not problematic 
unto itself, but requires a careful analysis of the method and 
manner in which an individual's impairment limits a major life 
activity. For the majority of the population, the basic mechanics of 
reading and writing do not pose extraordinary lifelong challenges; 
rather, recognizing and forming letters and words are effortless, 
unconscious, automatic processes. Because specific learning 
disabilities are neurologically-based impairments, the process of 
reading for an individual with a reading disability (e.g. dyslexia) 
is word-by-word, and otherwise cumbersome, painful, deliberate and 
slow--throughout life. The Committee expects that individuals with 
specific learning disabilities that substantially limit a major life 
activity will be better protected under the amended Act.

H.R. Rep. No. 110-730 pt. 1, at 10-11 (2008).

    The proposed regulations provide that the non-ameliorative effects 
of mitigating measures may be considered in assessing substantial 
limitation and considering facts such as condition, manner, or 
duration. See Sec. Sec.  35.108(d)(3)(ii) and 36.105(d)(3)(ii). Such 
``non-ameliorative effects'' could include negative side effects of 
medicine, burdens associated with following a particular treatment 
regimen, and complications that arise from surgery, among others. Of 
course, in many instances, it will not be necessary to assess the 
negative side effects of a mitigating measure in determining that a 
particular impairment substantially limits a major life activity. For 
example, someone with end-stage renal disease is substantially limited 
in kidney function, and thus, it is not necessary to consider the 
burdens that dialysis treatment imposes.
    Finally, condition, manner, or duration is not intended to be used 
as a rigid three-part standard that must be met to establish a 
substantial limitation. Rather, in referring to condition, manner, or 
duration, the proposed rules make clear that these are merely the types 
of factors that may be considered in appropriate cases. To the extent 
that such factors may be useful or relevant to show a substantial 
limitation in a particular fact pattern, some or all of them (and 
related facts) may be considered, but evidence relating to each of 
these facts may not be necessary to establish coverage.
    At the same time, individuals seeking coverage under the first or 
second prong of the definition of ``disability'' should not be 
constrained from offering evidence needed to establish that their 
impairment is substantially limiting. See 154 Cong. Rec. S8842 (daily 
ed. Sept. 16, 2008) (Statement of the Managers). Of course, covered 
entities may defeat a showing of substantial limitation by refuting 
whatever evidence the individual seeking coverage has offered, or by 
offering evidence that shows that an impairment

[[Page 4848]]

does not impose a substantial limitation on a major life activity.
    The Department also notes that although in general the comparison 
to ``most people'' means a comparison to most people in the general 
population, there are a few circumstances where it is only appropriate 
to make this comparison in reference to a particular population. For 
example, it would be inappropriate to evaluate whether a young child 
with a learning disability that affected her or his ability to read was 
substantially limited in reading compared to most people in the general 
population, because clinical assessments of such an impairment (e.g., 
dyslexia), are always performed in the context of similarly-aged 
children or a given academic year (e.g., sixth grade), and not in 
comparison to the population at large.

Sections 35.108(d)(4) and 36.105(d)(4)--Examples of Mitigating Measures

    Proposed Sec. Sec.  35.108(d)(4) and 36.105(d)(4) provide examples 
of mitigating measures that must not be considered in determining 
whether an individual has a disability that substantially limits a 
major life activity. Mitigating measures include but are not limited to 
medication, prosthetics, assistive technology, reasonable modifications 
and auxiliary aids or services, and learned behavioral or adaptive 
neurological modifications.
    Learned behavioral or adaptive neurological modifications include 
those strategies developed by an individual to lessen the impact of an 
impairment. Reasonable modifications include informal or undocumented 
accommodations and modifications as well as those provided through a 
formal process.
    Self-mitigating measures or undocumented modifications or 
accommodations for students with impairments that affect learning, 
reading, or concentrating, may include measures such as devoting a far 
larger portion of the day, weekends, and holidays to study than 
students without disabilities; teaching oneself strategies to 
facilitate reading connected text or mnemonics to remember facts; 
receiving extra time to complete tests; receiving modified homework 
assignments; or being permitted to take exams in a different format or 
in a less stressful or anxiety-provoking setting. Each of these 
mitigating measures, whether formal or informal, documented or 
undocumented, can lessen the impact of, and improve the academic 
function of a student having to deal with a substantial limitation in a 
major life activity such as concentrating, reading, speaking, learning, 
or writing. Nevertheless, these are only temporary supports; the 
individual still has a substantial limitation in a major life activity 
and would be a person with a disability under the ADA. See also 
discussion of Sec. Sec.  35.108(d)(1) and 36.105(d)(1), above.
    The ADA, as amended, specifies one exception to the rule on 
mitigating measures, stating that the ameliorative effects of ordinary 
eyeglasses and contact lenses shall be considered in determining 
whether a person has an impairment that substantially limits a major 
life activity and thereby is a person with a disability. 42 U.S.C. 
12102(4)(E)(ii). Proposed Sec. Sec.  35.108(d)(4)(i) and 
36.105(d)(4)(i) incorporate this exception by excluding ordinary 
eyeglasses and contact lenses from the definition of ``low-vision 
devices,'' which are mitigating measures that may not be considered in 
determining whether an impairment is a substantial limitation.

Sections 35.108(e) and 36.105(e)--Has a Record of Such an Impairment

    Section (3) of the definition of ``disability'' in the title II and 
title III regulations states the following: ``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.'' The NPRM proposes to keep the 
language of section (3) in both the title II and title III regulations 
(with minor editorial changes) but renumbers it as Sec. Sec.  
35.108(e)(1) and 36.105(e)(1).
    In addition, the NPRM proposes adding a new paragraph (2), which 
states that ``[w]hether an individual has a record of an impairment 
that substantially limited a major life activity shall be construed 
broadly to the maximum extent permitted by the ADA and should not 
demand extensive analysis. An individual will be considered to fall 
within this prong of the definition of disability if the individual has 
a history of an impairment that substantially limited one or more major 
life activities or was misclassified as having had such an 
impairment.''
    The NPRM also proposes adding paragraph (3), which provides that 
``[a]n individual with a record of a substantially limiting impairment 
may be entitled to a reasonable modification if needed and related to 
the past disability.'' For example, a high school student with an 
impairment that previously substantially limited, but no longer 
substantially limits, a major life activity may need permission to miss 
a class or have a schedule change to permit him or her to attend 
follow-up or monitoring appointments from a health care provider.

Sections 35.108(f) and 36.105(f)--``Is Regarded as Having Such an 
Impairment''

    The ``regarded as having such an impairment'' prong of the 
definition of ``disability'' was included in the ADA specifically to 
protect individuals who might not meet the first two prongs of the 
definition, but who were subject to adverse decisions by covered 
entities based upon unfounded concerns, mistaken beliefs, fears, myths, 
or prejudices about persons with disabilities. See 154 Cong. Rec. S8842 
(daily ed. Sept. 16, 2008) (Statement of the Managers). The rationale 
for the ``regarded as'' part of the definition of ``disability'' was 
articulated by the Supreme Court in the context of Section 504 of the 
Rehabilitation Act of 1973 in School Board of Nassau County v. Arline, 
480 U.S. 273 (1987). In Arline, the Court noted that, although an 
individual may have an impairment that does not diminish his or her 
physical or mental capabilities, it 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. Thus, until the 
Sutton decision, individuals seeking the protection of the ADA under 
this prong only had to show that a covered entity took some action 
prohibited by the statute because of an actual or perceived impairment. 
There was no requirement that the individual demonstrate that he or 
she, in fact, had an impairment that substantially limited a major life 
activity. See 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) 
(Statement of the Managers). For example, if a day care center refused 
to admit a child with burn scars because of the presence of the scars, 
then the day care center regarded the child as an individual with a 
disability, regardless of whether the child's scars substantially 
limited a major life activity.
    In the Sutton decision, the Supreme Court significantly narrowed 
the application of this prong, holding that individuals who asserted 
coverage under the ``regarded as having such an impairment'' prong had 
to establish either that the covered entity mistakenly believed that 
the individual had a physical or mental impairment that substantially 
limited a major life activity, or that the covered entity mistakenly 
believed that ``an actual, nonlimiting impairment substantially 
limit[ed]'' a major life activity, when in fact the impairment was not 
so limiting.

[[Page 4849]]

527 U.S. at 489. Congress expressly rejected this holding in the ADA 
Amendments Act by adding language clarifying that it is sufficient for 
an individual to establish that the covered entity regarded him or her 
as having an impairment, regardless of whether the individual actually 
has the impairment or whether the impairment constitutes a disability 
under the Act. 42 U.S.C. 12102(3)(A). This provision restores 
Congress's intent to allow individuals to establish coverage under the 
``regarded as'' prong by showing that they were treated adversely 
because of an impairment without having to establish the covered 
entity's beliefs concerning the severity of the impairment. See H.R. 
Rep. No. 110-730, pt. 2, at 18 (2008).
    Thus, under the ADA Amendments Act, it is not necessary, as it was 
prior to the Act and following the Supreme Court's decision in Sutton, 
for an individual to demonstrate that a covered entity perceived him as 
substantially limited in the ability to perform a major life activity 
in order for the individual to establish that he or she is covered 
under the ``regarded as'' prong. Nor is it necessary to demonstrate 
that the impairment relied on by a covered entity is (in the case of an 
actual impairment) or would be (in the case of a perceived impairment) 
substantially limiting for an individual to be ``regarded as having 
such an impairment.'' In short, to be covered under the ``regarded as'' 
prong, an individual is not subject to any functional test. See 154 
Cong. Rec. S8843 (daily ed. Sept. 16, 2008) (Statement of the Managers) 
(``The functional limitation imposed by an impairment is irrelevant to 
the third `regarded as' prong.''); H.R. Rep. No. 110-730, pt. 2, at 17 
(2008) (``[T]he individual is not required to show that the perceived 
impairment limits performance of a major life activity.''). The 
concepts of ``major life activities'' and ``substantial limitation'' 
simply are not relevant in evaluating whether an individual is 
``regarded as having such an impairment.''
    Proposed Sec. Sec.  35.108(f)(1) and 36.105(f)(1) restore the 
meaning of the ``regarded as'' prong of the definition of 
``disability'' by adding language that incorporates the statutory 
provision and states: ``An individual is `regarded as having such an 
impairment' if the individual is subjected to an action prohibited by 
the ADA because of an actual or perceived physical or mental 
impairment, whether or not the impairment substantially limits, or is 
perceived to substantially limit, a major life activity, except for an 
impairment that is both transitory and minor.'' The sections also 
incorporate the statutory definition of transitory impairment, and 
state that a ``transitory impairment is an impairment with an actual or 
expected duration of six months or less.''
    Proposed Sec. Sec.  35.108(f)(2) and 36.105(f)(2) provide that 
``[a]n individual is `regarded as having such an impairment' any time a 
[public entity/covered entity] takes a prohibited action against the 
individual because of an actual or perceived impairment, even if the 
[entity] asserts, or may or does ultimately establish, a defense to 
such action.''
    Proposed Sec. Sec.  35.108(f)(3) and 36.105(f)(3) provide that 
establishing that an individual is ``regarded as having such an 
impairment'' does not, by itself, establish liability. Liability is 
established under either title II or III of the ADA only when an 
individual proves that a covered entity discriminated on the basis of 
disability within the meaning of the ADA. Thus, in order to establish 
liability, an individual must establish coverage as a person with a 
disability, as well as establish that he or she has been subjected to 
an action prohibited by the ADA.

Sections 35.108(g) and 36.105(g)--Exclusions

    Sections 35.108(g) and 36.105(g) of the Department's proposed 
definition of ``disability'' renumber the exclusions contained in 
paragraph (5) of the definition of ``disability'' in the title II and 
title III regulations.

Section 35.130(b)(7)(i)--Claims of No Disability and Section 
36.302(g)--Modifications in Policies, Practices, or Procedures

    The ADA, as amended, states that a public entity under title II and 
any person who owns, leases (or leases to), or operates a place of 
public accommodation under title III, ``need not provide a reasonable 
accommodation or a reasonable modification to policies, practices, or 
procedures to an individual who meets the definition of disability'' 
solely on the basis of being regarded as having an impairment. 42 
U.S.C. 12201(h). Proposed Sec. Sec.  35.130(b)(7)(i) and 36.302(g) 
reflect this concept and provide that a public entity/covered entity 
``is not required to provide a reasonable modification to an individual 
who meets the definition of disability solely under the `regarded as' 
prong of the definition of disability,'' found in Sec.  
35.108(a)(1)(iii) and Sec.  36.105(a)(1)(iii). Thus, proposed 
Sec. Sec.  35.130(b)(7)(i) and 36.302(g) make it clear that the duty to 
provide reasonable modifications arises only when the individual 
establishes coverage under the first or second prong of the definition 
of ``disability.'' These sections are not intended to diminish the 
existing obligations to provide reasonable modifications under title II 
and title III of the ADA.
    The Department notes that the ADA Amendments Act revised the rules 
of construction in title V of the ADA by including a provision 
affirming that nothing in the Act changed the ADA requirement that 
covered entities provide reasonable modifications in policies, 
practices, or procedures, unless the entity can demonstrate that making 
such modifications in policies, practices, or procedures, including 
academic requirements in postsecondary education, would fundamentally 
alter the nature of goods, services, facilities, privileges, 
advantages, or accommodations involved. See 42 U.S.C. 12201(f). 
Congress noted that the reference to ``academic requirements in 
postsecondary education'' was included ``solely to provide assurances 
that the bill does not alter current law with regard to the obligations 
of academic institutions under the ADA, which we believe is already 
demonstrated in case law on this topic. Specifically, the reference to 
academic standards in post-secondary education is unrelated to the 
purpose of this legislation and should be given no meaning in 
interpreting the definition of disability.'' 154 Cong. Rec. S8843 
(daily ed. Sept. 16, 2008) (Statement of the Managers). Given that 
Congress did not intend there to be any change to the law in this area, 
the Department has made no changes to its regulatory requirements in 
response to this provision of the ADA Amendments Act.

Sections 35.130(i) and 36.201(c)--Claims of No Disability

    The NPRM proposes adding Sec. Sec.  35.130(i) and 36.201(c) to the 
title II and title III regulations, respectively, to reflect the 
language of the ADA, as amended, which states that ``[n]othing in this 
[Act] shall provide the basis for a claim by an individual without a 
disability that the individual was subject to discrimination because of 
the individual's lack of disability.'' 42 U.S.C. 12201(g). This 
provision, and the proposed rules incorporating its language, clarify 
that persons without disabilities do not have an actionable claim under 
the ADA on the basis of not having a disability.

[[Page 4850]]

Regulatory Process Matters

A. Executive Order 13563 and 12866--Regulatory Planning and Review

    This NPRM has been drafted in accordance with Executive Order 
13563, 76 FR 3821 (Jan. 18, 2011), Improving Regulation and Regulatory 
Review, and Executive Order 12866, 58 FR 51735 (Sept. 30, 1993), 
Regulatory Planning and Review. Executive Order 13563 directs agencies, 
to the extent permitted by law, to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs; 
tailor the regulation to impose the least burden on society, consistent 
with obtaining the regulatory objectives; and, in choosing among 
alternative regulatory approaches, select those approaches that 
maximize net benefits. Executive Order 13563 recognizes that some 
benefits and costs are difficult to quantify and provides that, where 
appropriate and permitted by law, agencies may consider and discuss 
qualitatively values that are difficult or impossible to quantify, 
including equity, human dignity, fairness, and distributive impacts.
    The Department has determined that this proposed rule is a 
``significant regulatory action'' as defined by Executive Order 12866, 
section 3(f). The Department has determined, however, that this 
proposed rule is not an economically significant regulatory action, as 
it will not have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. This NPRM has been reviewed by the Office of Management 
and Budget (OMB) pursuant to Executive Orders 12866 and 13563.
1. Necessity for This Rulemaking
    This rule is necessary to incorporate into the Department's current 
regulations the ADA Amendments Act of 2008, which became effective on 
January 1, 2009. The proposed regulations are intended to promote 
consistency of judicial interpretations and predictability of executive 
enforcement of the ADA, as now amended by Congress.
2. Relationship to EEOC's ADA Regulation Under Title I
    The ADA Amendments Act's changes to the ADA apply to title I of the 
ADA, which is enforced by the Equal Employment Opportunity Commission 
(EEOC), and titles II and III of the ADA, which are enforced by the 
Department.\4\ In keeping with the mandates of Executive Order 13563, 
and in order to promote consistency in the interpretation of the ADA 
Amendments Act, the Department and the EEOC held four joint public 
hearings prior to the publication of the EEOC's final title I ADA 
Amendments Act rule. See 76 FR 16978. In addition, the Department is 
proposing to revise its ADA title II and title III regulations in such 
a manner that, wherever possible, the regulatory language is the same 
as the language adopted by the EEOC in its final rule. This consistency 
will also ensure greater certainty for the public and businesses 
subject to the ADA.
---------------------------------------------------------------------------

    \4\ The title II regulation also designates eight federal 
agencies to investigate complaints with respect to the programs, 
services, and activities for certain public entities. See 28 CFR 
Subparts F, G.
---------------------------------------------------------------------------

    As discussed earlier, Congress enacted the ADA Amendments Act in 
response to a growing number of ADA title I employment discrimination 
cases in which, contrary to the intent of Congress, persons with 
disabilities were unable to establish that they had disabilities as 
defined under the ADA. The EEOC's Regulatory Impact Analysis (RIA) 
published with its final title I rule discussed the effect of the ADA 
Amendments Act in terms of benefits to individuals with disabilities 
and costs to covered entities subject to title I. The EEOC RIA 
identifies a broad range of individuals with disabilities who, prior to 
the passage of the ADA Amendments Act, could not establish coverage 
under the ADA's definition of ``disability'' and, thus, were not 
entitled to reasonable accommodations in the workplace. The EEOC RIA 
focuses on the cost of the additional accommodations that could be 
required because the ADA Amendments Act results in a larger group of 
individuals who have disabilities under the ADA. The EEOC RIA concluded 
that, with respect to the revisions to the title I ADA regulation, the 
qualitative and quantitative benefits of the rule justified the 
estimated annual costs of $60 million to $183 million. 76 FR 16978, 
16998 (March 25, 2011).
    In contrast to the effects of the ADA Amendments Act on entities 
subject to title I, the Department believes that the statutory changes 
that the proposed title II and title III regulations incorporate will 
impact individuals and covered entities differently and will result in 
significantly less cost than $100 million in any given year. The 
Department has concluded this for several reasons. First, although the 
ADA Amendments Act was expected to have an impact on a broad range of 
individuals with disabilities who were seeking reasonable 
accommodations in employment under title I, its impact on individuals 
challenging discrimination under titles II or III was expected to be 
substantially less. The legislative history only identifies individuals 
with learning disabilities who require testing accommodations from 
higher education institutions and testing entities as likely to be 
affected by the Act. See H.R. Rep. No. 110-730 pt. 1, at 10-11 (2008). 
Congress was concerned about the number of individuals with learning 
disabilities who were denied testing accommodations (usually extra 
time) because covered entities claimed that those individuals did not 
have disabilities covered by the ADA. Id.
    Second, the case law and the Department's enforcement experience in 
the years since the Supreme Court's decision in Sutton suggest that 
determining whether a plaintiff was an individual with a disability 
under the ADA's definition of ``disability'' was rarely a central issue 
in title II and title III cases, except with respect to testing 
accommodations. In addition, the Department's research has not 
identified any entities outside of higher education and testing 
entities that purport to be affected by the changes to titles II and 
III of the ADA made by the ADA Amendments Act.
    Third, although the ADA Amendments Act has been in effect for 
nearly four years, the Department's research has not identified 
information or data in the literature or on trade association Web sites 
suggesting that higher education institutions and testing entities have 
in fact borne significant additional costs attributable to the 
implementation of the statutory requirements of the ADA Amendments Act.
    Fourth, the Department does not believe that there are significant 
additional costs for providing extended time for testing for students 
in kindergarten through grade 12 as the result of the ADA Amendments 
Act. The vast majority of these students are already receiving a range 
of classroom program modifications, including extended time for 
testing, pursuant to the Individuals with Disabilities Education Act 
(IDEA) 20 U.S.C. 1400, et seq. To the extent that there are non-IDEA 
students in kindergarten through grade 12 who will receive additional 
classroom modifications (e.g., extended time for testing) as a result 
of the Department's implementing the ADA Amendments Act by amending its 
title II regulations, the Department believes that schools will not 
incur significant

[[Page 4851]]

additional costs because the extra time will be supervised by the 
student's teachers or other existing school personnel. The Department 
is interested in any data that school districts can provide with 
respect to costs they will incur related to the ADA Amendments Act.
    Finally, the Department's preliminary assessment of the costs 
associated with the anticipated increase in the number of testing 
accommodation requests that would be granted in testing and licensing 
situations as a result of the revised ADA definition of ``disability'' 
clearly supports the Department's view that the proposed changes will 
cost significantly less than $100 million in any given year.
3. Cost Assessment
    Robust data are not readily available on the actual numbers of 
persons who would be covered by the ADA due to the clarifications from 
the ADA Amendments Act, and the actual additional costs of 
accommodations. Nevertheless, some general cost estimates can be made 
using existing data and assumptions. The Department estimates that the 
total cost of the revisions required by the ADA Amendments Act and the 
proposed regulations will range between $36.2 and $61.8 million in the 
first year (the year with the highest costs) for providing testing 
accommodations to students with learning disabilities and students with 
Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder 
(collectively, ``ADD''), who would request and receive testing 
accommodations and would not have received accommodations but for 
implementation of the ADA Amendments Act and the proposed regulations.
    Research has found that, prior to the enactment of the ADA 
Amendments Act, a little more than half--51 percent--of students with 
learning disabilities or ADD were receiving testing accommodations in 
post-secondary schools or on national examinations.\5\ To account for 
uncertainty regarding the remaining students who were not receiving 
accommodations but would be eligible to receive them now because of the 
ADA Amendments Act and the proposed regulations, we estimate the 
incremental effect of the revisions using a low (50 percent), medium 
(70 percent), and high (90 percent) range. The Department's research 
indicates that in the vast majority of cases, the accommodation 
requested by students with learning disabilities or ADD involves extra 
test-taking time. The estimate of costs of additional testing 
accommodations needed as a result of the ADA Amendments Act and the 
proposed regulations is developed from current data on the number of 
post-secondary students (undergraduate and graduate), the portion of 
students with learning disabilities, the portion of students with ADD, 
the number of students participating in online learning, the average 
hourly wage of teaching assistants and test proctors, and reasonable 
estimates of average test time, average course load, and average number 
of tests per course.\6\
---------------------------------------------------------------------------

    \5\ ``National examinations'' refers to those examinations 
administered by a private entity related to applications, licensing, 
certification, or credentialing for secondary or post-secondary 
education, professional, or trade purposes. Cf. 28 CFR 36.309(a).
    \6\ Our data was derived from several sources. In addition to 
some basic internet resources, we relied on the following: (1) U.S. 
Gov't Accountability Office, GAO 10-33, Higher Education and 
Disability--Education Needs a Coordinated Approach to Improve 
Assistance to Schools in Supporting Students (2009); (2) U.S. Gov't 
Accountability Office, GAO 12-40, Higher Education and Disability--
Improved Federal Enforcement Needed to Better Protect Students' 
Rights to Testing Accommodations (2011); (3) data from the U.S. 
Department of Education, Institute of Education Sciences, College 
and Career Tables Library, Table 77, available at http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8530.; (4) 
Lindsey Jasinski and John Ranseen, Malingered ADHD Evaluations: A 
Further Complication for Accommodation Reviews, The Bar Examiner, 
December 2011; (5) U.S. Department of Education, The Condition of 
Education 160 (2003), available at http://nces.ed.gov/pubs2003/2003067.pdf; (6) Melana Zyla Vickers, Pope Center for Higher 
Education Policy, Accommodating College Students with Learning 
Disabilities: ADD, ADHD, and Dyslexia (March 2010), available at 
http:www.popecenter.org/acrobat/Vickers-mar2010.pdf; (7) Bureau of 
Labor Statistics, U.S. Department of Labor, Occupational Outlook 
Handbook, 2012-13 Edition, Teacher Assistants, available at http://www.bls.gov/ooh/education-training-and-library/teacher-assistants.htm; (8) data from the U.S. Census Bureau, American 
FactFinder, Table ECO761A1, available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_61A1&prodType=;.

                                 Summary of Total Estimated Costs In First Year
                                                   [$millions]
----------------------------------------------------------------------------------------------------------------
                                                                        Low             Med            High
----------------------------------------------------------------------------------------------------------------
                       Testing in Classes/Courses of Study in Post-Secondary Institutions
----------------------------------------------------------------------------------------------------------------
ANNUAL Total Cost for Coursework Tests and Examinations.........           $30.5           $42.7           $54.9
ONE TIME Cost for Additional Training at Institutions...........             3.5             3.5             3.5
----------------------------------------------------------------------------------------------------------------
                                          National Examination Testing
----------------------------------------------------------------------------------------------------------------
ANNUAL Total Cost for National Examinations.....................             1.5             2.1             2.7
ONE TIME Cost for Additional Training at Institutions...........             0.7             0.7             0.7
                                                                 -----------------------------------------------
    Total.......................................................            36.2            49.0            61.8
----------------------------------------------------------------------------------------------------------------

a. Post-Secondary Institutions
    The National Center for Education Statistics (NCES) reports that, 
as of 2010, there were an estimated 17.8 million post-secondary 
students,\7\ including both undergraduate and graduate students. This 
figure represents full-time student equivalents. The NCES also reports 
that approximately 3.7 percent of those 17.8 million students are 
enrolled in online learning and that approximately 20.4 percent of 
students were taking online learning course(s).\8\ The 3.7 percent is 
an estimate of the percent of all post-secondary students who are 
taking all their courses online. We removed these students from our 
cost estimate because if their entire program is online, the Department 
believes it is unlikely they will have timed tests at a physical 
location. We

[[Page 4852]]

did not remove from our cost estimate the students who are taking only 
some online courses. Instead, we treat these students the same for 
purposes of our analysis as we treat students taking all courses in 
physical classrooms, which likely overestimates the number of courses 
with timed tests at a physical location that we use in our estimate. 
The Department requests public comment on whether our assumption is 
correct that those in a post-secondary program where all classes are 
taken online do not take their tests in a physical location. We also 
request any information the public might have regarding whether online-
only post-secondary programs will incur any costs that we have not 
accounted for as a result of incorporating the ADA Amendments Act's 
revised definition of ``disability.''
---------------------------------------------------------------------------

    \7\ U.S. Department of Education, Institute of Education 
Sciences, College and Career Tables Library, Table 77, available at 
http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8530.
    \8\ U.S. Department of Education, Institute of Education 
Sciences, College and Career Tables Library, Table 4, available at
    http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8155.
---------------------------------------------------------------------------

    In 2008, approximately 10.8 percent of post-secondary students 
reported having a disability.\9\ Out of those 10.8 percent of students 
with a disability, 8.9 percent of those students reported having a 
``specific learning disability'' and 19.1 percent reported having 
ADD.\10\ Thus, out of the 10.8 percent of students with a disability, 
28 percent of those students have a specific learning disability or 
ADD. Some research suggests that this percentage may overestimate the 
proportion of students who self-identify as having ADD and actually 
require accommodations due to a disability.\11\ To account for the 
possible overestimate, the Department reduced its estimate of the 
percentage of students with ADD (as a primary disability) by 30 
percent, from 19.1 to 13.37 percent of students with a disability. 
Therefore, the Department estimates that out of the 10.8 percent of 
students with a disability, 22.3 percent of those students have a 
specific learning disability or ADD.
---------------------------------------------------------------------------

    \9\ GAO 10-33, Higher Education and Disability--Education Needs 
a Coordinated Approach to Improve Assistance to Schools in 
Supporting Students 37 (2009).
    \10\ Id. at 38.
    \11\ Researchers have estimated that nearly 25%-50% of students 
self-identifying as ADD may not necessarily meet the clinical 
definition of the disorder and thus would still not qualify for an 
accommodation under the revised definition of disability. Jasinski 
and Ranseen, Malingered ADHD Evaluations: A Further Complication for 
Accommodation Reviews, The Bar Examiner, December 2011, at 10.
---------------------------------------------------------------------------

    Research suggests that prior to the enactment of the ADA Amendments 
Act, 51 percent of college students with a learning disability or ADD 
were already receiving accommodations.\12\ To calculate the incremental 
costs of this proposed rule, the percentage of remaining students with 
a learning disability or ADD (49 percent) who had not sought or 
received accommodations and who would now both seek and receive them 
was used as a baseline.
---------------------------------------------------------------------------

    \12\ U.S. Department of Education, The Condition of Education 
160 (2003), available at http://nces.ed.gov/pubs2003/2003067.pdf; 
see also Vickers, Pope Center for Higher Education Policy, 
Accommodating College Students with Learning Disabilities: ADD, 
ADHD, and Dyslexia 6 (March 2010), available at 
http:www.popecenter.org/acrobat/Vickers-mar2010.pdf.
---------------------------------------------------------------------------

    Based on the 49 percent baseline, the Department used a range to 
estimate the incremental change in the percentage of students with 
learning disabilities and ADD who would now request and receive 
accommodations involving extra test-taking time after the enactment of 
the ADA Amendments Act and the proposed regulations. These calculations 
proceeded with a low, medium, and high possible value for this unknown 
portion of students: 50.0 percent, 70.0 percent and 90.0 percent, 
respectively. The Department used a range because not all postsecondary 
students with learning disabilities or ADD who are eligible to receive 
testing accommodations actually request them. Some students may not 
want to identify themselves as having a disability or needing an 
accommodation. Other students may not have documentation of their 
disability at the time they request the accommodation, and they cannot 
afford to obtain the specific documentation requested by the testing 
entity. In addition, other students may have a disability, but not need 
that particular accommodation. Finally, despite the changes made by the 
ADA Amendments Act, not all students in the affected population are 
necessarily eligible to receive testing accommodations. The Department 
is interested in comment on whether the ranges it is using are 
appropriate or whether it has overestimated the number of additional 
students who will now request testing accommodations.
    We thus estimate that between 101,227 and 182,209 more post-
secondary students will request and receive testing accommodations as a 
result of the revisions to the definition of ``disability.'' That 
figure was calculated by multiplying 17.8 million post-secondary 
students by the percentage of students with disabilities (10.8 
percent), multiplied by the percentage of students with disabilities 
who have a learning disability and 70 percent of students with ADD 
(22.3 percent), reduced by the 51 percent already receiving 
accommodations and the 3.7 percent of students taking courses fully 
online, and adjusting for the fact that either 50 percent, 70 percent, 
or 90 percent of those impacted students would actually request testing 
accommodations.
    Our research indicated that 59 percent of testing accommodation 
requests were for 50 percent additional time and another 15 percent 
were for more than 50 percent additional time.\13\ We thus 
conservatively assumed an average of 75 percent more time would 
accurately estimate the additional testing accommodation time requested 
for examinations in post-secondary institutions.\14\ A brief review of 
the academic schedules for post-secondary schools found that most 
undergraduate courses meet twice a week for an hour and fifteen minutes 
or an hour and a half. Based on this information, we assumed that the 
average test time would be the length of the average class session--1.5 
hours. Thus, we estimate 1.13 additional hours per test for each 
accommodation request--1.5 hours (average test time) multiplied by 75 
percent (average additional testing time requested).
---------------------------------------------------------------------------

    \13\ GAO 12-40, Higher Education and Disability--Improved 
Federal Enforcement Needed to Better Protect Students' Rights to 
Testing Accommodations 8 (2011)
    \14\ If 59% of takers requested 50% more time, and 15% of test 
takers requested 100% more time (double the time of other test 
takers), the average amount of time requested, on a per test taker 
basis, would be 60% more time. Thus, we believe that an estimate of 
75% more time, on average, more than covers the likely net 
additional time requested.
---------------------------------------------------------------------------

    Little to no data were found on the average number of exams/tests 
taken per post-secondary student. In this estimation, we assumed that 
the average full-time equivalent student takes a full-time load of 
eight classes per year, with an average of 3 tests/quizzes per class 
(which includes some classes with no exams and some classes with 
several). Thus, we estimated that students will take approximately 24 
exams/tests per year, on average, calculated as follows: 8 classes per 
year multiplied by 3 tests per class. Multiplying 24 exams/tests per 
student per year by the average (estimated above) of 1.13 additional 
hours per testing accommodation request, yields an estimate of 27 
additional hours of test taking and proctor time needed per student per 
year, on average. The Department seeks public comment on the 
reasonableness of these assumptions.
    Multiplying the estimated number of students who as a result of the 
revisions to the definition of ``disability'' would now request and be 
granted testing accommodations (between 101,227 and 182,209), by the 
average additional time for testing accommodations per student per year 
(27 hours), by the average hourly wage of teaching assistants

[[Page 4853]]

($11.16 \15\) yields an annual cost of testing accommodations in the 
post-secondary education setting ranging between a low of $30.5 million 
and a high of $54.9 million.
---------------------------------------------------------------------------

    \15\ The $11.16 per hour was estimated from the median annual 
wage for teaching assistants of $23,220. See Bureau of Labor 
Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 
2012-13 Edition, Teacher Assistants, available at http://www.bls.gov/ooh/education-training-and-library/teacher-assistants.htm. We distributed the annual wage over 52 weeks (40 
hours) to translate it into an hourly comparable.
---------------------------------------------------------------------------

    Our methodology likely overestimates the actual costs for a variety 
of reasons. For example, because there will sometimes be more than one 
student needing additional testing time during the administration of a 
given test, only one proctor would likely be needed per class. Because 
of the inherent difficulties in accurately estimating when this will 
occur, we have calculated the costs to account for additional proctor 
time for each individual student, regardless of whether more than one 
student needing additional time would be taking the same test.
    The Department believes institutions will experience some one-time 
costs due to the institution's disability services center (or its 
equivalent) needing to update its policies and procedures to bring them 
in line with the changes made by the ADA Amendments Act and explaining 
those changes to the employees responsible for evaluating testing 
accommodation requests. We estimate that one-time costs to adapt 
training and procedures will total $3.5 million, which is the result of 
multiplying the number of institutions affected (7,021 \16\), by $500 
(assumed not to be higher than the cost of 5 hours of management time, 
valued at $100 an hour). We were not able to find estimates for the 
incremental costs resulting from training employees within post-
secondary institutions who are responsible for assessing accommodation 
requests. We therefore used an estimate of 5 hours at $100 per hour to 
calculate a very high-level estimate of this cost, and are seeking 
public comment on these assumptions.
---------------------------------------------------------------------------

    \16\ U.S. Department of Education, Institute of Education 
Sciences, College and Career Tables Library, Table 2, available at 
http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8460.
---------------------------------------------------------------------------

b. National Examinations
    Using the same data as noted above, the calculation of the estimate 
of additional requests for testing accommodations in national 
examinations was made as follows: 9,287,619 total annual test takers of 
national exams,\17\ multiplied by the percentage of post-secondary 
students with disabilities (10.8 percent \18\), multiplied by the 
percentage of students with disabilities who have learning disabilities 
and 70 percent of students with ADD (22.3 percent \19\), reduced by the 
51 percent likely already receiving accommodations yields approximately 
109,457 students previously not receiving testing accommodations who 
now could. As calculated above, a low, medium, and high range was used 
(50 percent, 70 percent, 90 percent) to represent the likely percentage 
of these additional students who, as a result of the ADA Amendments Act 
and proposed regulations, would actually ask for and now receive a 
testing accommodation. This calculation leads to an estimate of between 
54,729 to 98,512 additional requests that would be granted for testing 
accommodations during national examinations as a result of the 
revisions to the definition of ``disability.'' The Department has not 
found data detailing the distribution of persons with disabilities who 
take national exams, and therefore has used the data on post-secondary 
students with disabilities as a proxy for the assumption that the 
populations are similar (both are adults seeking additional education 
and degrees/certification). The Department is interested in any 
comments on the appropriateness of using this data and any alternative 
sources of information that can be used.
---------------------------------------------------------------------------

    \17\ The figure of 9.2 million test takers is a summation from 
the following sources: 2011 Statistics, The Bar Examiner, March 
2012, available at http://www.ncbex.org/assets/media_files/Statistics/2011Statistics.pdf; National Council of Architectural 
Registration Boards, ARE Pass Rates by Division, available at http://www.ncarb.org/ARE/ARE-Pass-Rates/DivisionPR.aspx; Teresa R. Metinko 
& Dahli Gray, Decrease in the Number of People Taking the CPA Exam 
Not Due to the 150-Hour Requirement, American Journal of Business 
Education, Nov. 2010, available at http://journals.cluteonline.com/index.php/AJBE/article/view/437; National Association of Boards of 
Pharmacy, NAPLEX Passing Rates for First-Time Candidates per 
Pharmacy School from 2007 to 2011, available at http://www.nabp.net/programs/assets/NAPLEX%20passing%20rates.pdf; National Society of 
Professional Engineers, The 80% Myth in the Engineering Profession 
(Sept. 13, 2010), available at http://community.nspe.org/blogs/licensing/archive/2010/09/13/the-80-myth-in-the-engineering-profession.aspx; American Speech-Language-Hearing Association, 
Surveys and Information Unit, National Summary Report: Descriptive 
Statistics of PRAXIS Examination Scores for the Speech-Language 
Pathology Specialty Test for Test Administration Years 2000-2001 
through 2010-2011, available at http://www.asha.org/uploadedFiles/PraxisScoresSLP.pdf; National Council of State Boards of Nursing, 
Number of Candidates Taking NCLEX Examination and Percent Passing 
(2011), available at https://www.ncsbn.org/Table_of_Pass_Rates_2011.pdf.
    \18\ GAO 10-33, Higher Education and Disability--Education Needs 
a Coordinated Approach to Improve Assistance to Schools in 
Supporting Students 37 (2009).
    \19\ Calculated from data in Table 7 of GAO 10-33, Higher 
Education and Disability--Education Needs a Coordinated Approach to 
Improve Assistance to Schools in Supporting Students 38 (2009).
---------------------------------------------------------------------------

    Our research noted that 59 percent of testing accommodation 
requests are for 50 percent additional time and another 15 percent are 
for more than 50 percent additional time.\20\ We thus assumed an 
average of 75 percent more time would accurately estimate the 
additional testing accommodation time requested for national 
examinations.\21\ Data from licensing administrators and the 
Department's independent research suggest that these national 
examinations last anywhere from two to eight hours. Averaging these 
test lengths, weighted by the number of takers for each test, results 
in a weighted average test length of 3.54 hours.\22\ The estimate of 
additional testing accommodation requests was multiplied by the average 
test length of 3.54 hours, and multiplied by 75 percent (average 
additional testing time needed), and in turn multiplied by $10.38,\23\ 
resulting in a range of annual costs between a low of $1.5 million and 
a high of $2.7 million.
---------------------------------------------------------------------------

    \20\ GAO 12-40, Higher Education and Disability--Improved 
Federal Enforcement Needed to Better Protect Students' Rights to 
Testing Accommodations 8 (2011)
    \21\ If 59% of takers requested 50% more time, and 15% of test 
takers requested 100% more time (double the time of other test 
takers), the average amount of time requested, on a per test taker 
basis, would be 60% more time. Thus, we believe that an estimate of 
75% more time, on average, more than covers the likely net 
additional time requested.
    \22\ Because test length was not found for all types of national 
tests, this estimate of length may over- or under-estimate the 
actual time.
    \23\ This dollar figure represents the average hourly wage for 
test proctors based on internet searches conducted in June 2013 from 
the following Web sites: Utah State University job Web sites; data 
from Jobs.gov; College of Southern Idaho; job Web sites from Miami 
Dade College; Weber University; Davenport University; California 
State University; Delaware County Community College.
---------------------------------------------------------------------------

    Because our estimation of national exams and licensing tests is 
based on those which we could actively identify, it underestimates the 
likely number of actual test takers.\24\ We ask the public to provide 
any information that would help us refine our estimates on the number 
of national examination test takers.
---------------------------------------------------------------------------

    \24\ We conducted sensitivity tests estimating what the 
incremental number of impacted test takers would be if the total 
number of persons sitting for all national examinations is actually 
50% or 100% higher than the number we identified. The resulting 
ranges in annual costs increased to between $2.3 and $4.1 million 
(50% higher number of persons sitting for national exams) and 
between $3.0 and $5.4 million (double the number of persons sitting 
for national exams).
---------------------------------------------------------------------------

    Although our analysis likely underestimates the number of test 
takers for national exams and licensing tests,

[[Page 4854]]

we likely overestimate the actual costs per test taker for the specific 
national examinations included in the analysis. As stated above, only 
one proctor would likely be needed at one location, even though in some 
instances more than one student may be receiving additional time. With 
respect to national examinations, we know many persons with learning 
disabilities or ADD were already requesting and receiving extra time as 
a testing accommodation. Thus, the companies that administer national 
examinations already employ and pay for additional testing proctors to 
proctor the examinations of those receiving additional time. The 
increase in the number of test-takers who would now request and be 
granted additional test-taking time will likely be placed in the same 
room or location where the proctors were already monitoring students 
receiving additional time prior to the ADA Amendments Act. Yet, we have 
calculated the costs to account for additional proctor time for each 
individual test taker, regardless of whether an additional proctor is 
needed because one is already provided to students previously 
requesting and receiving additional time.
    One-time costs to adapt training and procedures were estimated to 
total $698,500, which is the result of multiplying the number of 
testing entities affected (1,397 \25\), by $500 (assumed not to be 
higher than the cost of 5 hours management time, valued at $100 an 
hour).\26\ Again, because the Department was unable to find any data on 
the costs associated with training, we invite public comment on the 
accuracy of our assumptions.
---------------------------------------------------------------------------

    \25\ Census Bureau data for educational test development and 
evaluation services was used as a proxy. See U.S. Census Bureau, 
American Factfinder, Table ECO761A1, available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_61A1&prodType=table.
    \26\ The Department believes that this one-time cost per testing 
entity reflects the costs for the testing entity to update its 
policies and procedures for evaluating testing accommodation 
requests to bring them in line with the changes made by the ADA 
Amendments Act and explaining those changes to the employees 
responsible for evaluating testing accommodation requests.
---------------------------------------------------------------------------

4. Benefits
    Congress enacted the ADA Amendments Act to ensure that persons with 
disabilities who were refused access to programs and services would 
again be able to rely on the protections of the ADA. As a result, the 
Department believes that the enactment of the law benefits millions of 
Americans and the benefits to these individuals are nonquantifiable but 
nonetheless significant. The Department determined, however, that there 
was a specific group of individuals with disabilities who would be able 
to receive quantifiable benefits. With enactment of the ADA Amendments 
Act, certain post-secondary students and national examination test 
takers (e.g., Certified Public Accountant Examination, Law School 
Admission Test, and other professional examinations) with ADD or 
learning disabilities are now able to receive additional time to 
complete tests, whereas before the Act some of these students may have 
had their requests for additional time denied by testing entities 
because such entities believed the disability in question did not meet 
the ADA's definition of ``disability.''
    In the first year, our analysis estimates that approximately 
142,000 students will take advantage of additional testing 
accommodations that otherwise would not have occurred but for this 
rule. Over ten years, approximately 1.6 million full-time equivalent 
enrollees would benefit, or, assuming an average 4-year course of 
study, more than 400,000 individual students. An additional 800,000 
national examination test takers would benefit over that same 10 years 
(assuming that people take an exam one time only). The Department is 
interested in comment on whether it is underestimating or 
overestimating the number of people who will benefit from this rule.
    A number of these individuals could be expected to earn a degree or 
license that they otherwise would not have earned. We were unable to 
find robust data to estimate the number of students with learning 
disabilities or ADD who would receive a post-secondary degree or 
professional license due to the ADA Amendments Act, but note that 
extensive research has shown notably higher earnings for those with 
college degrees over those who do not have one. Estimates of lifetime 
earnings differential vary, with some studies estimating an earning 
differential ranging from approximately $300,000 to $1 million.\27\ In 
addition, some number of students may be able to earn a degree in a 
higher paying field than otherwise and yet other students would still 
get the same degree, but be able to finish faster or more successfully 
(i.e., higher grades) than otherwise would be the case. All of these 
students would be expected to earn greater lifetime income and be more 
productive than they otherwise would if the ADA Amendments Act was not 
enacted into law.
---------------------------------------------------------------------------

    \27\ See Mark Schneider, How Much Is That Bachelor's Degree 
Really Worth? The Million Dollar Misunderstanding, AEI Online, May 
2009, available at http://www.aei.org/article/education/higher-education/how-much-is-that-bachelors-degree-really-worth/; U.S. 
Census Bureau, Work-Life Earnings by Field of Degree and Occupation 
for People with a Bachelor's Degree: 2011, Oct. 2012, available at 
http://www.census.gov/prod/2012pubs/acsbr11-04.pdf; Anthony P. 
Carnevale, et al., The College Payoff--Education, Occupations 
Lifetime Earnings, The Georgetown University Center on Education and 
the Workforce 2011, available at http://www2.ed.gov/policy/highered/reg/hearulemaking/2011/collegepayoff.pdf.
---------------------------------------------------------------------------

    In addition to these benefits, the ADA Amendments Act has 
significant non-quantifiable benefits to individuals with disabilities 
who, prior to the passage of the ADA Amendments Act, were denied the 
opportunity for equal access to an education or to become licensed in 
their chosen profession because of their inability to receive needed 
testing accommodations. As with all other improvements in access for 
individuals with disabilities, the ADA Amendments Act is expected to 
generate psychological benefits for covered individuals, including an 
increased sense of personal dignity and self-worth, as more individuals 
with disabilities are able to successfully complete tests and exams and 
more accurately demonstrate their academic skills and abilities. Some 
individuals will now be more likely to pursue a favored career path or 
educational pursuit, which will in turn lead to greater personal 
satisfaction.
    There are additional benefits to society that arise from improved 
testing accessibility. For instance, if some persons with disabilities 
are able to increase their earnings, they may need less public 
support--either direct financial support or other programs or services. 
This, in turn, would lead to resource savings from reduced social 
service agency outlays. Others, such as family members, may also 
benefit from less financial and psychological pressure due to the 
greater independence and earnings of the family member whose disability 
is now covered by the ADA under the revised definition of 
``disability.''
    The Department believes (as did Congress when it enacted the ADA) 
that there is inherent value for all Americans which results from 
greater accessibility. Economists use the term ``existence value'' to 
refer to the benefit that individuals get from the plain existence of a 
good, service, or resource--in this case, the increased accessibility 
to post-secondary degrees and specialized licenses that would arise 
from greater access to testing accommodations or the increased 
accessibility to covered entities' facilities, programs, services, or 
activities as a result of the ADA Amendments Act. This can also be 
described as the value that people both with and without disabilities 
derive

[[Page 4855]]

from the guarantees of equal protection and non-discrimination. In 
other words, people value living in a country that affords protections 
to persons with disabilities, whether or not they themselves are 
directly or indirectly affected. There can be numerous reasons why 
individuals might value accessibility even if they do not require it 
now and do not ever anticipate needing it in the future. These include: 
bequest motives, benevolence toward relatives or friends who require 
accessibility features, and general feelings of empathy and 
responsibility toward individuals with disabilities. In other words, 
people in society value equity, fairness, and human dignity; even if 
they cannot put a dollar value on how important it is to them. These 
are the exact values agencies are directed to consider in E.O. 13563.
c. Questions
    In addition to the discrete questions set out above, the Department 
invites the public to provide information to assist the Department in 
improving its estimates of the costs and benefits of implementing the 
ADA Amendments Act (other than with respect to employment). The 
Department is interested in information regarding the additional actual 
costs incurred in providing testing accommodations since the ADA 
Amendments Act took effect and the actual incremental increase in 
testing accommodations granted since the ADA Amendments Act took 
effect. Finally, the Department is interested in information to ensure 
that its estimates of benefits and costs are comprehensive. For 
example, are other covered entities, besides post-secondary 
institutions and national examination centers incurring any costs in 
order to implement the Act's changes to titles II and III of the ADA? 
If so, who and how so? In addition to testing accommodations, are there 
any other specific benefits that people with disabilities have accrued 
(other than in employment) as a result of the ADA Amendments Act?

B. Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this regulation, and by approving it 
certifies that it will not have a significant economic impact on a 
substantial number of small entities. First, the ADA Amendments Act 
took effect on January 1, 2009, and all covered entities have been 
required to comply with the Act since that date and thus, should be 
familiar with the requirements of the law. Second, the rule does not 
include reporting requirements and imposes no new recordkeeping 
requirements.
    Third, as shown above, the only title II and title III entities 
that would be significantly affected by the proposed changes to the ADA 
regulations are testing entities and institutions of higher education. 
The type of accommodations that most likely will be requested and 
required by those whose coverage has been clarified under titles II and 
III of ADA Amendments Act will be additional time in testing 
situations. While many of these testing or higher education entities 
are small businesses or small governmental entities, the costs 
associated with additional testing time are minimal; therefore, the 
Department believes the economic impact of the proposed regulation will 
be neither significant for these small entities nor disproportionate 
relative to the costs for larger entities.
    The Department estimates that approximately 7,021 post-secondary 
institutions could be impacted based on data from the U.S. Department 
of Education, Institute of Education Sciences, and the National Center 
for Education Statistics.\28\ The Department used data from the U.S. 
Census Bureau (Statistics of U.S. Businesses) from 2007 for Junior 
Colleges (NAICS \29\ 6112) and Colleges, Universities, and Professional 
Schools (NAICS 6113) that was analyzed by U.S. Small Business 
Administration, Office of Advocacy \30\ to estimate the proportion of 
those entities that would meet the SBA's criteria for small business or 
entity. As shown in Table 2, small post-secondary entities are 
estimated to account for approximately 42.1 percent of all post-
secondary establishments. Therefore, the Department estimates that 
2,954 small post-secondary establishments would be impacted.
---------------------------------------------------------------------------

    \28\ U.S. Department of Education, Institute of Education 
Sciences, College and Career Tables Library, Table 2, available at 
http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8460.
    \29\ NAICS refers to the North American Industry Classification 
System.
    \30\ U.S. Small Business Administration, Firm Size Data, 
available at http://www.sba.gov/advocacy/849/12162.
---------------------------------------------------------------------------

    The overall rule's cost estimates for post-secondary institutions 
were calculated based on the number of entities and number of post-
secondary students affected. Because larger entities have more 
students, on average, than smaller ones, the Department used the 
proportion of the industry sub-group's receipts for small and large 
entities as a proxy for the number of students. This method assumes 
that per student costs are roughly the same for institutions of 
differing sizes; the Department does not have robust data for adjusting 
the estimation. Thus, using receipts for Junior Colleges (NAICS 6112) 
and Colleges, Universities, and Professional Schools (NAICS 6113) as a 
proxy for number of students, small post-secondary institutions are 
estimated to bear 4.8 percent of the costs for that industry sub-group, 
or approximately $2.2 million of the $46 million first year costs (see 
Table 2 in the Initial Regulatory Assessment for the NPRM) for post-
secondary institutions, which would average to a little over $750 per 
small entity establishment in the first year, for the approximately 
2,954 small entity post-secondary establishments. Approximately 4,067 
post-secondary establishments (57.9 percent of the 7,021) would be 
medium or large entities, and they would incur $43.9 million in costs 
during the first year, which would average out to approximately $10,796 
per medium/large post-secondary establishment during the first year. 
This $10,796 per medium/large post-secondary establishment during the 
first year is approximately 14.3 times higher than the cost that would 
be incurred by small post-secondary establishments during that same 
time.

                                                             Table 1--Firm and Receipts Data for Post-Secondary Institutions in 2007
                                                   [Firm and Receipts Data for Post-Secondary Institutions, All Firms and Small Entities 2007]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Junior colleges (NAICS 6112)          Colleges, universities, and professional        Sum of junior colleges (6112) and
                                                             --------------------------------------------            schools (NAICS 6113)              colleges, universities, and professional
                                                                                                         --------------------------------------------               schools (6113)
                                                                                                 Est.                                                -------------------------------------------
                                                                 Firms      Establishments     receipts                                      Est.                                        Est.
                                                                                              ($000,000)     Firms      Establishments     receipts      Firms      Establishments     receipts
                                                                                                                                          ($000,000)                                  ($000,000)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total (all firms/entities)..................................          468               862        6,982        2,456             4,022      165,761        2,924             4,884      172,743
                                                             ----------------------------------------------------------------------------------------

[[Page 4856]]

 
SBA size standards for small entities.......................  SBA small business standard is $19.0
                                                              million; small business totals here
                                                              include those with receipts under $20
                                                              million.*
                                                              SBA small business standard is $25.5
                                                              million; small business totals here
                                                              include those with receipts under $25
                                                              million.*
                                                             -----------------------------------------------------------------------------------------------------------------------------------
Total small entities........................................          372               432        1,711        1,566             1,623        6,653        1,938             2,055        8,364
Percent small entities......................................        79.5%             50.1%        24.5%        63.8%             40.4%         4.0%        66.3%             42.1%         4.8%
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Data reported in size categories which do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and from
  $20 million to $24.99 million, and from $25 million to $29.99 million.
Source: Calculated from data from U.S. Small Business Administration, Office of Advocacy, based on data provided by the U.S. Census Bureau, Statistics of U.S. Businesses. See U.S. Small
  Business Administration, Firm Size Data, available at http://www.sba.gov/advocacy/849/12162.


    Table 2--Estimated Small Entity Establishments for Post-Secondary
                         Institutions in 2010-11
 [Estimated Small Entity Establishments for Post-Secondary Institutions
                               in 2010-11]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Total Post-Secondary Establishments (all firms/                    7,021
 entities) Academic year 2010-2011 *...........
Percent small entities (2007) **...............                    42.1%
Total impacted small entity establishments ***.                    2,954
------------------------------------------------------------------------
* Source: U.S. Department of Education, Institute of Education Sciences,
  College and Career Tables Library, Table 2, available at http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8460.
** Percent of small establishments calculated for the sum of Junior
  Colleges (NAICS 6112) and Colleges, Universities, and Professional
  Schools (NAICS 6113). Source calculated from data from U.S. Small
  Business Administration, Office of Advocacy, based on data provided by
  the U.S. Census Bureau, Statistics of U.S. Businesses. See U.S. Small
  Business Administration, Firm Size Data, available at http://www.sba.gov/advocacy/849/12162.
*** Estimated using percent of small establishments for sectors 6112 and
  6113.

    In addition to post-secondary institutions, the Department 
estimates that some national testing entities would also be impacted. 
Data specifically on national testing organizations, including size 
break-out by receipts, was not found, so the Department applied ratios 
calculated for the larger industry group of Educational Support 
Services (NAICS 611710) data to estimate the number of Educational Test 
Development and Evaluation Services (NAICS 6117102).\31\ Approximately 
1,397 national testing organizations would be impacted by this rule, 
irrespective of size. If the ratio of small to large Educational Test 
Development and Evaluation Services entities (NAICS 6117102) is the 
same as that for the larger industry group of Educational Support 
Services, 89.5 percent in 2007, then approximately 1,250 of 1,397 
establishments would be small entity establishments.
---------------------------------------------------------------------------

    \31\ Using data reported by the Census Bureau for 2007 for both 
industry groups.

                                   Table 3--Education Support and Test Development Services Establishment and Receipts
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Educational support  services     Educational test development and evaluation services (NAICS 6117102)
                                                      (NAICS 611710)         ---------------------------------------------------------------------------
                                             --------------------------------
                                                               Est. receipts                                              Establishments   Est. receipts
                                              Establishments    ($000,000)                                                                  ($000,000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total (all firms)...........................           6,781          10,672  Census Bureau value.......................           1,397           2,907
                                             -----------------------------------------------------------------------------------------------------------
SBA for small entities......................   SBA small business standard is $14.0 million for all Educational Support Services; small business totals
                                                                          here include those with receipts under $15 million*
                                             -----------------------------------------------------------------------------------------------------------
Total small entities........................           6,067           4,062  estimated                                            1,250           1,106
                                             -----------------------------------------------------------------------------------------------------------
Percent small entities......................           89.5%           38.1%  Educational Support Services as proxy.....           89.5%           38.1%
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Data reported in size categories which do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from
  $15 million to $19.99 million.
Source: Calculated from data from U.S. Small Business Administration, Office of Advocacy, based on data provided by the U.S. Census Bureau, see U.S.
  Small Business Administration, Firm Size Data, available at http://www.sba.gov/advocacy/849/12162 (last visited Nov. 1, 2013), and data from the U.S.
  Census Bureau, see U.S. Census Bureau, Industry Statistics Portal, available at http://www.census.gov/econ/isp/index.php.


[[Page 4857]]

    Small entity establishments in the Educational Support Services 
industry group account for 38.1 percent of that industry's receipts. If 
receipts are used as a proxy for number of students in a manner similar 
to that described above for post-secondary entity establishments, then 
small national testing entities (NAICS 611710) can be expected to bear 
38.1 percent of the costs estimated for the industry as a whole, or 
approximately $1.1 million of the $2.8 million first-year costs. Thus, 
costs from this rule are estimated to average to a little over $850 
each, in the first year, for the approximately 1,250 small national 
testing establishments. Approximately 147 national testing center 
establishments (10.5 percent of the 1,397) would be medium or large 
entities, and they would incur $1.74 million in costs during the first 
year, which would average out to approximately $11,818 per medium/large 
national testing center establishment during the first year. This 
$11,818 per medium/large national testing center establishment is 
approximately 13.8 times as high as the cost that would be incurred by 
small national testing center establishments during that same time.
    As explained above, the Department estimates that 2,954 small post-
secondary establishments and approximately 1,250 small national testing 
establishments would be impacted by this rule, for a total of 
approximately 4,200 small business establishments.
    The estimates were based on average estimates for all entities, 
irrespective of size. The cost of the additional training these 
entities may need to undertake as a result of the ADA Amendments Act 
and this rule is expected to total no more than $500 per entity. The 
cost of additional proctors to these entities is unclear as we have not 
found robust information of the number of test-takers at these 
entities, on average.
    Based on the above analysis, the Department can certify that the 
rule will not have a significant economic impact on a substantial 
number of small entities. The Department seeks comments and additional 
data on the costs to small entities of this rulemaking.

C. Executive Order 13132: Federalism

    Executive Order 13132 directs that, to the extent practicable and 
permitted by law, an agency shall not promulgate any regulation that 
has federalism implications, that imposes substantial direct compliance 
costs on State and local governments, that is not required by statute, 
or that preempts State law, unless the agency meets the consultation 
and funding requirements of section 6 of the Executive Order. Because 
this rule does not have federalism implications as defined in the 
Executive Order, does not impose direct compliance costs on State and 
local governments, is required by statute, and does not preempt State 
law within the meaning of the Executive Order, the Department has 
concluded that compliance with the requirements of section 6 is not 
necessary.

D. Plain Language Instructions

    The Department makes every effort to promote clarity and 
transparency in its rulemaking. In any regulation, there is a tension 
between drafting language that is simple and straightforward and 
drafting language that gives full effect to issues of legal 
interpretation. The Department operates a toll-free ADA Information 
Line (800) 514-0301 (voice); (800) 514-0383 (TTY) that the public is 
welcome to call to obtain assistance in understanding anything in this 
proposed rule. If any commenter has suggestions for how the regulation 
could be written more clearly, please contact Zita Johnson-Betts, 
Deputy Chief, Disability Rights Section, whose contact information is 
provided in the introductory section of this proposed rule entitled, 
FOR FURTHER INFORMATION CONTACT.

E. Paperwork Reduction Act

    This proposed rule does not contain any new or revised 
``collection[s] of information'' as defined by the Paperwork Reduction 
Act of 1995.44 U.S.C. 3501 et seq.

F. Unfunded Mandates Reform Act

    Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1503(2), excludes from coverage under that Act any proposed or final 
Federal regulation that ``establishes or enforces any statutory rights 
that prohibit discrimination on the basis of race, color, religion, 
sex, national origin, age, handicap, or disability.'' Accordingly, this 
rulemaking is not subject to the provisions of the Unfunded Mandates 
Reform Act.

List of Subjects for 28 CFR Parts 35 and 36

    Administrative practice and procedure, Buildings and facilities, 
Civil rights, Communications, Individuals with disabilities, Reporting 
and recordkeeping requirements, State and local governments, Business 
and industry.

    By the authority vested in me as Attorney General by law, including 
28 U.S.C. 509 and 510, 5 U.S.C. 301, and sections 12134, 12186, and 
12205a of the Americans With Disabilities Act of 1990, as amended by 
the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 
(2008), Parts 35 and 36 of title 28 of the Code of Federal Regulations 
are proposed to be amended as follows:

PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND 
LOCAL GOVERNMENT SERVICES

Subpart A--General

0
1. The authority citation for 28 CFR Part 35 is revised to read as 
follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 
12131, and 12205a of the Americans with Disabilities Act, as 
amended.

0
2. Revise Sec.  35.101 to read as follows:


Sec.  35.101  Purpose and broad coverage.

    (a) Purpose. The purpose of this part is to implement subtitle A of 
title II of the Americans with Disabilities Act of 1990 (42 
U.S.C.12131-12134), as amended by the ADA Amendments Act of 2008 (ADA 
Amendments Act) (Pub. L. 110-325, 122 Stat. 3553 (2008)), which 
prohibits discrimination on the basis of disability by public entities.
    (b) Broad coverage. The primary purpose of the ADA Amendments Act 
is to make it easier for people with disabilities to obtain protection 
under the ADA. Consistent with the ADA Amendments Act's purpose of 
reinstating a broad scope of protection under the ADA, the definition 
of ``disability'' in this part shall be construed broadly in favor of 
expansive coverage to the maximum extent permitted by the terms of the 
ADA. The primary object of attention in cases brought under the ADA 
should be whether entities covered under the ADA have complied with 
their obligations and whether discrimination has occurred, not whether 
the individual meets the definition of disability. The question of 
whether an individual meets the definition of disability under this 
part should not demand extensive analysis.
0
3. Amend Sec.  35.104 to revise the definition of ``disability'' to 
read as follows:


Sec.  35.104  Definitions.

* * * * *
    Disability. The definition of ``disability'' can be found at Sec.  
35.108.
* * * * *
0
4. Add Sec.  35.108 to subpart A to read as follows:

[[Page 4858]]

Sec.  35.108  Definition of disability.

    (a) General. (1) Disability means, with respect to an individual,
    (i) A physical or mental impairment that substantially limits one 
or more of the major life activities of such individual;
    (ii) A record of such an impairment; or
    (iii) Being regarded as having such an impairment as described in 
Sec.  35.108(f) of this part. This means that the individual has been 
subjected to an action prohibited by the ADA because of an actual or 
perceived impairment that is not both ``transitory and minor.''
    (2) Rules of construction. (i) An individual may establish coverage 
under any one or more of the three prongs of the definition of 
disability in paragraph (a)(1) of this section, the ``actual 
disability'' prong in paragraph (a)(1)(i) of this section, the ``record 
of'' prong in paragraph (a)(1)(ii) of this section, or the ``regarded 
as'' prong in paragraph (a)(1)(iii) of this section.
    (ii) Where an individual is not challenging a public entity's 
failure to provide reasonable modifications under Sec.  35.130(b)(7), 
it is generally unnecessary to proceed under the ``actual disability'' 
or ``record of'' prongs, which require a showing of an impairment that 
substantially limits a major life activity or a record of such an 
impairment. In these cases, the evaluation of coverage can be made 
solely under the ``regarded as'' prong of the definition of disability, 
which does not require a showing of an impairment that substantially 
limits a major life activity or a record of such an impairment. An 
individual may choose, however, to proceed under the ``actual 
disability'' or ``record of'' prong regardless of whether the 
individual is challenging a public entity's failure to provide 
reasonable modifications.
    (b) Physical or mental impairment. (1) The phrase ``physical or 
mental impairment'' means:
    (i) 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, immune, circulatory, hemic and 
lymphatic, skin, and endocrine; or
    (ii) Any mental or psychological disorder such as an intellectual 
disability, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (2) 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, intellectual disability, emotional 
illness, specific learning disabilities (including but not limited to 
dyslexia), HIV disease (whether symptomatic or asymptomatic), 
tuberculosis, drug addiction, and alcoholism.
    (3) The phrase ``physical or mental impairment'' does not include 
homosexuality or bisexuality.
    (c) Major life activities--(1) General. Major life activities 
include, but are not limited to:
    (i) Caring for oneself, performing manual tasks, seeing, hearing, 
eating, sleeping, walking, standing, sitting, reaching, lifting, 
bending, speaking, breathing, learning, reading, concentrating, 
thinking, communicating, interacting with others, and working.
    (ii) The operation of a major bodily function, including the 
functions of the immune system, special sense organs and skin, normal 
cell growth, and digestive, genitourinary, bowel, bladder, 
neurological, brain, respiratory, circulatory, cardiovascular, 
endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. 
The operation of a major bodily function includes the operation of an 
individual organ within a body system.
    (2) In determining other examples of major life activities, the 
term ``major'' shall not be interpreted strictly to create a demanding 
standard for disability. Whether an activity is a ``major life 
activity'' is not determined by reference to whether it is of ``central 
importance to daily life.''
    (d) Substantially limits--(1) Rules of construction. The following 
rules of construction apply when determining whether an impairment 
substantially limits an individual in a major life activity.
    (i) The term ``substantially limits'' shall be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by the 
terms of the ADA. ``Substantially limits'' is not meant to be a 
demanding standard.
    (ii) An impairment is a disability within the meaning of this part 
if it substantially limits the ability of an individual to perform a 
major life activity as compared to most people in the general 
population. An impairment need not prevent, or significantly or 
severely restrict, the individual from performing a major life activity 
in order to be considered substantially limiting.
    (iii) The primary object of attention in cases brought under title 
II of the ADA should be whether public entities have complied with 
their obligations and whether discrimination has occurred, not the 
extent to which an individual's impairment substantially limits a major 
life activity. Accordingly, the threshold issue of whether an 
impairment substantially limits a major life activity should not demand 
extensive analysis.
    (iv) The determination of whether an impairment substantially 
limits a major life activity requires an individualized assessment. 
However, in making this assessment, the term ``substantially limits'' 
shall be interpreted and applied to require a degree of functional 
limitation that is lower than the standard for substantially limits 
applied prior to the ADA Amendments Act.
    (v) The comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical evidence. Nothing in this paragraph is 
intended, however, to prohibit or limit the use of scientific, medical, 
or statistical evidence in making such a comparison where appropriate.
    (vi) The determination of whether an impairment substantially 
limits a major life activity shall be made without regard to the 
ameliorative effects of mitigating measures. However, the ameliorative 
effects of ordinary eyeglasses or contact lenses shall be considered in 
determining whether an impairment substantially limits a major life 
activity. Ordinary eyeglasses or contact lenses are lenses that are 
intended to fully correct visual acuity or to eliminate refractive 
error.
    (vii) An impairment that is episodic or in remission is a 
disability if it would substantially limit a major life activity when 
active.
    (viii) An impairment that substantially limits one major life 
activity need not substantially limit other major life activities in 
order to be considered a substantially limiting impairment.
    (ix) The six-month ``transitory'' part of the ``transitory and 
minor'' exception in paragraph (f)(1) of this section does not apply to 
the ``actual disability'' or ``record of'' prongs of the definition of 
disability. The effects of an impairment lasting or expected to last 
less than six months can be substantially limiting within the meaning 
of this section for establishing an actual disability or a record of a 
disability.
    (2) Predictable assessments. (i) The principles set forth in Sec.  
35.108(d)(1) are intended to provide for more generous coverage and 
application of the ADA's prohibition on discrimination through a

[[Page 4859]]

framework that is predictable, consistent, and workable for all 
individuals and entities with rights and responsibilities under the 
ADA.
    (ii) Applying the principles set forth in Sec.  35.108(d)(1), the 
individualized assessment of some types of impairments will, in 
virtually all cases, result in a determination of coverage under Sec.  
35.108(a)(1)(i) (the ``actual disability'' prong) or Sec.  
35.108(a)(1)(ii) (the ``record of'' prong). Given their inherent 
nature, these types of impairments will, as a factual matter, virtually 
always be found to impose a substantial limitation on a major life 
activity. Therefore, with respect to these types of impairments, the 
necessary individualized assessment should be particularly simple and 
straightforward.
    (iii) For example, applying the principles set forth in Sec.  
35.108(d)(1), it should easily be concluded that the following types of 
impairments, will, at a minimum, substantially limit the major life 
activities indicated:
    (A) Deafness substantially limits hearing and auditory function;
    (B) Blindness substantially limits visual function;
    (C) An intellectual disability substantially limits reading, 
learning, and problem solving;
    (D) Partially or completely missing limbs or mobility impairments 
requiring the use of a wheelchair substantially limit musculoskeletal 
function;
    (E) Autism substantially limits learning, social interaction, and 
communication;
    (F) Cancer substantially limits normal cell growth;
    (G) Cerebral palsy substantially limits brain function;
    (H) Diabetes substantially limits endocrine function;
    (I) Epilepsy, muscular dystrophy, and multiple sclerosis 
substantially limit neurological function;
    (J) Human Immunodeficiency Virus (HIV) infection substantially 
limits immune function; and
    (K) Major depressive disorder, bipolar disorder, post-traumatic 
stress disorder, traumatic brain injury, obsessive compulsive disorder, 
and schizophrenia substantially limit brain function. The types of 
impairments described in this paragraph may substantially limit 
additional major life activities not explicitly listed above.
    (3) Condition, manner and duration. (i) At all times taking into 
account the principles in Sec.  35.108(d)(1), in determining whether an 
individual is substantially limited in a major life activity, it may be 
useful in appropriate cases to consider, as compared to most people in 
the general population, the conditions under which the individual 
performs the major life activity; the manner in which the individual 
performs the major life activity; or the duration of time it takes the 
individual to perform the major life activity, or for which the 
individual can perform the major life activity.
    (ii) Consideration of facts such as condition, manner or duration 
may include, among other things, consideration of the difficulty, 
effort or time required to perform a major life activity; pain 
experienced when performing a major life activity; the length of time a 
major life activity can be performed; or the way an impairment affects 
the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side 
effects of medication or burdens associated with following a particular 
treatment regimen, may be considered when determining whether an 
individual's impairment substantially limits a major life activity.
    (iii) In determining whether an individual has a disability under 
the ``actual disability'' or ``record of'' prongs of the definition of 
disability, the focus is on how a major life activity is substantially 
limited, and not on what outcomes an individual can achieve. For 
example, someone with a learning disability may achieve a high level of 
academic success, but may nevertheless be substantially limited in one 
or more major life activities, including, but not limited to, reading, 
writing, speaking, or learning because of the additional time or effort 
he or she must spend to read, write, speak, or learn compared to most 
people in the general population.
    (4) Mitigating measures include, but are not limited to: (i) 
Medication, medical supplies, equipment, appliances, low-vision devices 
(defined as devices that magnify, enhance, or otherwise augment a 
visual image, but not including ordinary eyeglasses or contact lenses), 
prosthetics including limbs and devices, hearing aid(s) and cochlear 
implant(s) or other implantable hearing devices, mobility devices, and 
oxygen therapy equipment and supplies;
    (ii) Use of assistive technology;
    (iii) Reasonable modifications or auxiliary aids or services as 
defined in this regulation;
    (iv) Learned behavioral or adaptive neurological modifications; or
    (v) Psychotherapy, behavioral therapy, or physical therapy.
    (e) Has a record of such an impairment--(1) General. An individual 
has a record of such an impairment if the individual has a history of, 
or has been misclassified as having, a mental or physical impairment 
that substantially limits one or more major life activities.
    (2) Broad construction. Whether an individual has a record of an 
impairment that substantially limited a major life activity shall be 
construed broadly to the maximum extent permitted by the ADA and should 
not demand extensive analysis. An individual will be considered to fall 
within this prong of the definition of disability if the individual has 
a history of an impairment that substantially limited one or more major 
life activities when compared to most people in the general population, 
or was misclassified as having had such an impairment. In determining 
whether an impairment substantially limited a major life activity, the 
principles articulated in Sec.  35.108(d)(1) apply.
    (3) Reasonable modification. An individual with a record of a 
substantially limiting impairment may be entitled to a reasonable 
modification if needed and related to the past disability.
    (f) Is regarded as having such an impairment. (1) An individual is 
``regarded as having such an impairment'' if the individual is 
subjected to an action prohibited by the ADA, because of an actual or 
perceived physical or mental impairment, whether or not that impairment 
substantially limits, or is perceived to substantially limit, a major 
life activity, except for an impairment that is both transitory and 
minor. A transitory impairment is an impairment with an actual or 
expected duration of six months or less.
    (2) An individual is ``regarded as having such an impairment'' any 
time a public entity takes a prohibited action against the individual 
because of an actual or perceived impairment, even if the entity 
asserts, or may or does ultimately establish, a defense to such action.
    (3) Establishing that an individual is ``regarded as having such an 
impairment'' does not, by itself, establish liability. Liability is 
established under title II of the ADA only when an individual proves 
that a public entity discriminated on the basis of disability within 
the meaning of title II of the ADA, 42 U.S.C. 12131-12134.
    (g) Exclusions. The term ``disability'' does not include:
    (1) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (2) Compulsive gambling, kleptomania, or pyromania; or

[[Page 4860]]

    (3) Psychoactive substance use disorders resulting from current 
illegal use of drugs.

Subpart B--General Requirements

0
5. In Sec.  35.130, add paragraphs (b)(7)(i), (b)(7)(ii), and paragraph 
(i) to read as follows:


Sec.  35.130  General prohibitions against discrimination.

* * * * *
    (b) * * *
    (7) * * *
    (i) A public entity is not required to provide a reasonable 
modification to an individual who meets the definition of disability 
solely under the ``regarded as'' prong of the definition of disability 
at Sec.  35.108(a)(1)(iii).
    (ii) [Reserved]
* * * * *
    (i) Claims of no disability. Nothing in this part shall provide the 
basis for a claim that an individual without a disability was subject 
to discrimination because of a lack of disability, including a claim 
that an individual with a disability was granted a reasonable 
modification that was denied to an individual without a disability.

PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PUBLIC 
ACCOMMODATIONS AND COMMERCIAL FACILITIES

Subpart A--General

0
6. The authority citation for 28 CFR Part 36 is revised to read as 
follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186b 
and 12205a of the Americans with Disabilities Act, as amended.

0
7. Revise Sec.  36.101 to read as follows:


Sec.  36.101  Purpose and broad coverage.

    (a) Purpose. The purpose of this part is to implement subtitle A of 
title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12181-12189), as amended by the ADA Amendments Act of 2008 (ADA 
Amendments Act) (Pub. L. 110-325, 122 Stat. 3553 (2008)), which 
prohibits discrimination on the basis of disability by public 
accommodations and requires places of public accommodation and 
commercial facilities to be designed, constructed, and altered in 
compliance with the accessibility standards established by this part.
    (b) Broad coverage. The primary purpose of the ADA Amendments Act 
is to make it easier for people with disabilities to obtain protection 
under the ADA. Consistent with the ADA Amendments Act's purpose of 
reinstating a broad scope of protection under the ADA, the definition 
of ``disability'' in this part shall be construed broadly in favor of 
expansive coverage to the maximum extent permitted by the terms of the 
ADA. The primary object of attention in cases brought under the ADA 
should be whether entities covered under the ADA have complied with 
their obligations and whether discrimination has occurred, not whether 
the individual meets the definition of disability. The question of 
whether an individual meets the definition of disability under this 
part should not demand extensive analysis.
0
8. Amend Sec.  36.104 to revise the definition of ``disability'' to 
read as follows:


Sec.  36.104  Definitions.

* * * * *
    Disability. The definition of ``disability'' can be found at Sec.  
36.105.
* * * * *
0
9. Add Sec.  36.105 to subpart A to read as follows:


Sec.  36.105  Definition of disability.

    (a) General. (1) Disability means, with respect to an individual,
    (i) A physical or mental impairment that substantially limits one 
or more of the major life activities of such individual;
    (ii) A record of such an impairment; or
    (iii) Being regarded as having such an impairment as described in 
Sec.  36.105(f) of this part. This means that the individual has been 
subjected to an action prohibited by the ADA because of an actual or 
perceived impairment that is not both ``transitory and minor.''
    (2) Rules of construction. (i) An individual may establish coverage 
under any one or more of the three prongs of the definition of 
disability in paragraph (a)(1) of this section, the ``actual 
disability'' prong in paragraph (a)(1)(i), the ``record of'' prong in 
paragraph (a)(1)(ii), or the ``regarded as'' prong in paragraph 
(a)(1)(iii).
    (ii) Where an individual is not challenging a covered entity's 
failure to provide reasonable modifications under Sec.  36.302, it is 
generally unnecessary to proceed under the ``actual disability'' or 
``record of'' prongs, which require a showing of an impairment that 
substantially limits a major life activity or a record of such an 
impairment. In these cases, the evaluation of coverage can be made 
solely under the ``regarded as'' prong of the definition of disability, 
which does not require a showing of an impairment that substantially 
limits a major life activity or a record of such an impairment. An 
individual may choose, however, to proceed under the ``actual 
disability'' or ``record of'' prong regardless of whether the 
individual is challenging a covered entity's failure to provide 
reasonable modifications.
    (b) Physical or mental impairment. (1) The phrase ``physical or 
mental impairment'' means:
    (i) 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, immune, circulatory, hemic and 
lymphatic, skin, and endocrine; or
    (ii) Any mental or psychological disorder such as an intellectual 
disability, organic brain syndrome, post traumatic stress syndrome, 
emotional or mental illness, and specific learning disabilities.
    (2) 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, intellectual disability, emotional 
illness, specific learning disabilities (including but not limited to 
dyslexia), HIV disease (whether symptomatic or asymptomatic), 
tuberculosis, drug addiction, and alcoholism.
    (3) The phrase ``physical or mental impairment'' does not include 
homosexuality or bisexuality.
    (c) Major life activities--(1) General. Major life activities 
include, but are not limited to:
    (i) Caring for oneself, performing manual tasks, seeing, hearing, 
eating, sleeping, walking, standing, sitting, reaching, lifting, 
bending, speaking, breathing, learning, reading, concentrating, 
thinking, communicating, interacting with others, and working; and
    (ii) The operation of a major bodily function, including the 
functions of the immune system, special sense organs and skin, normal 
cell growth, and digestive, genitourinary, bowel, bladder, 
neurological, brain, respiratory, circulatory, cardiovascular, 
endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. 
The operation of a major bodily function includes the operation of an 
individual organ within a body system.
    (2) In determining other examples of major life activities, the 
term ``major'' shall not be interpreted strictly to create a demanding 
standard for disability. Whether an activity is a ``major life

[[Page 4861]]

activity'' is not determined by reference to whether it is of ``central 
importance to daily life.''
    (d) Substantially limits--(1) Rules of construction. The following 
rules of construction apply when determining whether an impairment 
substantially limits an individual in a major life activity.
    (i) The term ``substantially limits'' shall be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by the 
terms of the ADA. ``Substantially limits'' is not meant to be a 
demanding standard.
    (ii) An impairment is a disability within the meaning of this part 
if it substantially limits the ability of an individual to perform a 
major life activity as compared to most people in the general 
population. An impairment need not prevent, or significantly or 
severely restrict, the individual from performing a major life activity 
in order to be considered substantially limiting.
    (iii) The primary object of attention in cases brought under title 
III of the ADA should be whether covered entities have complied with 
their obligations and whether discrimination has occurred, not the 
extent to which an individual's impairment substantially limits a major 
life activity. Accordingly, the threshold issue of whether an 
impairment substantially limits a major life activity should not demand 
extensive analysis.
    (iv) The determination of whether an impairment substantially 
limits a major life activity requires an individualized assessment. 
However, in making this assessment, the term ``substantially limits'' 
shall be interpreted and applied to require a degree of functional 
limitation that is lower than the standard for substantially limits 
applied prior to the ADA Amendments Act.
    (v) The comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical evidence. Nothing in this paragraph is 
intended, however, to prohibit or limit the use of scientific, medical, 
or statistical evidence in making such a comparison where appropriate.
    (vi) The determination of whether an impairment substantially 
limits a major life activity shall be made without regard to the 
ameliorative effects of mitigating measures. However, the ameliorative 
effects of ordinary eyeglasses or contact lenses shall be considered in 
determining whether an impairment substantially limits a major life 
activity. Ordinary eyeglasses or contact lenses are lenses that are 
intended to fully correct visual acuity or to eliminate refractive 
errors.
    (vii) An impairment that is episodic or in remission is a 
disability if it would substantially limit a major life activity when 
active.
    (viii) An impairment that substantially limits one major life 
activity need not substantially limit other major life activities in 
order to be considered a substantially limiting impairment.
    (ix) The six-month ``transitory'' part of the ``transitory and 
minor'' exception in paragraph (f)(1) of this section does not apply to 
the ``actual disability'' or ``record of'' prongs of the definition of 
disability. The effects of an impairment lasting or expected to last 
fewer than six months can be substantially limiting within the meaning 
of this section for establishing an actual disability or a record of a 
disability.
    (2) Predictable assessments. (i) The principles set forth in Sec.  
36.105(d)(1) are intended to provide for more generous coverage and 
application of the ADA's prohibition on discrimination through a 
framework that is predictable, consistent, and workable for all 
individuals and entities with rights and responsibilities under the 
ADA.
    (ii) Applying the principles set forth in Sec.  36.105(d)(1), the 
individualized assessment of some types of impairments will, in 
virtually all cases, result in a determination of coverage under Sec.  
36.105(a)(1)(i) (the ``actual disability'' prong) or Sec.  
36.105(a)(1)(ii) (the ``record of'' prong). Given their inherent 
nature, these types of impairments will, as a factual matter, virtually 
always be found to impose a substantial limitation of a major life 
activity. Therefore, with respect to these types of impairments, the 
necessary individualized assessment should be particularly simple and 
straightforward.
    (iii) For example, applying the principles set forth in Sec.  
36.105(d)(1), it should easily be concluded that the following types of 
impairments will, at a minimum, substantially limit the major life 
activities indicated:
    (A) Deafness substantially limits hearing and auditory function;
    (B) Blindness substantially limits visual function;
    (C) An intellectual disability substantially limits reading, 
learning, and problem solving;
    (D) Partially or completely missing limbs or mobility impairments 
requiring the use of a wheelchair substantially limit musculoskeletal 
function;
    (E) Autism substantially limits learning, social interaction, and 
communication;
    (F) Cancer substantially limits normal cell growth;
    (G) Cerebral palsy substantially limits brain function;
    (H) Diabetes substantially limits endocrine function;
    (I) Epilepsy, muscular dystrophy, and multiple sclerosis 
substantially limit neurological function;
    (J) Human Immunodeficiency Virus (HIV) infection substantially 
limits immune function; and
    (K) Major depressive disorder, bipolar disorder, post-traumatic 
stress disorder, traumatic brain injury, obsessive compulsive disorder, 
and schizophrenia substantially limit brain function. The types of 
impairments described in this paragraph may substantially limit 
additional major life activities not explicitly listed above.
    (3) Condition, manner and duration. (i) At all times taking into 
account the principles in Sec.  36.105(d)(1), in determining whether an 
individual is substantially limited in a major life activity, it may be 
useful in appropriate cases to consider, as compared to most people in 
the general population, the conditions under which the individual 
performs the major life activity; the manner in which the individual 
performs the major life activity; or the duration of time it takes the 
individual to perform the major life activity, or for which the 
individual can perform the major life activity.
    (ii) Consideration of facts such as condition, manner or duration 
may include, among other things, consideration of the difficulty, 
effort or time required to perform a major life activity; pain 
experienced when performing a major life activity; the length of time a 
major life activity can be performed; or the way an impairment affects 
the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side 
effects of medication or burdens associated with following a particular 
treatment regimen, may be considered when determining whether an 
individual's impairment substantially impairs a major life activity.
    (iii) In determining whether an individual has a disability under 
the ``actual disability'' or ``record of'' prongs of the definition of 
disability, the focus is on how a major life activity is substantially 
limited, and not on what outcomes an individual can achieve. For 
example, someone with a learning disability may achieve a high level of 
academic success, but may nevertheless be substantially limited in one 
or more major life activities, including, but not limited to, reading, 
writing, speaking, or

[[Page 4862]]

learning because of the additional time or effort he or she must spend 
to read, write, speak, or learn compared to most people in the general 
population.
    (4) Mitigating measures include, but are not limited to:
    (i) Medication, medical supplies, equipment, appliances, low-vision 
devices (defined as devices that magnify, enhance, or otherwise augment 
a visual image, but not including ordinary eyeglasses or contact 
lenses), prosthetics including limbs and devices, hearing aid(s) and 
cochlear implant(s) or other implantable hearing devices, mobility 
devices, and oxygen therapy equipment and supplies.
    (ii) Use of assistive technology;
    (iii) Reasonable modifications or auxiliary aids or services as 
defined in this regulation;
    (iv) Learned behavioral or adaptive neurological modifications; or
    (v) Psychotherapy, behavioral therapy, or physical therapy.
    (e) Has a record of such an impairment--(1) General. An individual 
has a record of such an impairment if the individual has a history of, 
or has been misclassified as having, a mental or physical impairment 
that substantially limits one or more major life activities.
    (2) Broad construction. Whether an individual has a record of an 
impairment that substantially limited a major life activity shall be 
construed broadly to the maximum extent permitted by the ADA and should 
not demand extensive analysis. An individual will be considered to fall 
within this prong of the definition of disability if the individual has 
a history of an impairment that substantially limited one or more major 
life activities when compared to most people in the general population, 
or was misclassified as having had such an impairment. In determining 
whether an impairment substantially limited a major life activity, the 
principles articulated in Sec.  36.105(d)(1) apply.
    (3) Reasonable modification. An individual with a record of a 
substantially limiting impairment may be entitled to a reasonable 
modification if needed and related to the past disability.
    (f) Is regarded as having such an impairment. (1) An individual is 
``regarded as having such an impairment'' if the individual is 
subjected to an action prohibited by the ADA because of an actual or 
perceived physical or mental impairment, whether or not that impairment 
substantially limits, or is perceived to substantially limit, a major 
life activity, except for an impairment that is both transitory and 
minor. A transitory impairment is an impairment with an actual or 
expected duration of six months or less.
    (2) An individual is ``regarded as having such an impairment'' any 
time a covered entity takes a prohibited action against the individual 
because of an actual or perceived impairment, even if the entity 
asserts, or may or does ultimately establish, a defense to such action.
    (3) Establishing that an individual is ``regarded as having such an 
impairment'' does not, by itself, establish liability. Liability is 
established under title III of the ADA only when an individual proves 
that a covered entity discriminated on the basis of disability within 
the meaning of title III of the ADA, 42 U.S.C. 12181-12189.
    (g) Exclusions. The term ``disability'' does not include: (1) 
Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, 
gender identity disorders not resulting from physical impairments, or 
other sexual behavior disorders;
    (2) Compulsive gambling, kleptomania, or pyromania; or
    (3) Psychoactive substance use disorders resulting from current 
illegal use of drugs.

Subpart B--General Requirements

0
10. In Sec.  36.201, add paragraph (c) to read as follows:


Sec.  36.201  General.

* * * * *
    (c) Claims of no disability. Nothing in this part shall provide the 
basis for a claim that an individual without a disability was subject 
to discrimination because of a lack of disability, including a claim 
that an individual with a disability was granted a reasonable 
modification that was denied to an individual without a disability.

Subpart C--Specific Requirements

0
11. In Sec.  36.302. add paragraph (g) to read as follows:


Sec.  36.302  Modifications in policies, practices, or procedures.

* * * * *
    (g) A covered entity is not required to provide a reasonable 
modification to an individual who meets the definition of disability 
solely under the ``regarded as'' prong of the definition of disability 
at Sec.  36.105(a)(1)(iii).

    Dated: January 22, 2014.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014-01668 Filed 1-29-14; 8:45 am]
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