Alternatively, some stadium designers and title II entities commented that the requirement should apply when the facility has at least one elevator providing firefighter emergency operation, along with approval of authorities with responsibility for fire safety. The Department is also amending its title III regulation, which prohibits discrimination on the basis of disability by public accommodations and in commercial facilities, concurrently with the publication of this rule in this issue of the Federal Register. These guidelines filled a void left by the 1991 Standards. The Department believes that the estimates resulting from this approach represent a reasonable upper and lower measure of the likely effects these requirements will have that the Department was able to quantify and monetize. Most commenters were in favor of this requirement for handrails in alterations, and stated that adding handrails to stairs during alterations was not only feasible and not cost-prohibitive, but also provided important safety benefits. Emphasis on Limitations Instead of Outcomes. Integration of inmates and detainees with disabilities. (3) Apartments or townhouse facilities that are provided by or on behalf of a place of education, which are leased on a year-round basis exclusively to graduate students or faculty, and do not contain any public use or common use areas available for educational programming, are not subject to the transient lodging standards and shall comply with the requirements for residential facilities in sections 233 and 809 of the 2010 Standards. See 154 Cong. Also, any examination specially designed for individuals with disabilities must be offered as often and in as timely a manner as are other examinations. Public entities also might consider grouping other power-driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-powered vehicles, and other devices). The Act requires that, to the maximum extent feasible, facilities must be accessible to, and usable by, individuals with disabilities. Consistent with the ADA Amendments Acts 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. Paragraph (g), which prohibits discrimination on the basis of an individuals or entitys known relationship or association with an individual with a disability, is based on sections 102(b)(4) and 302(b)(1)(E) of the ADA. Many disabilities are less obvious or may be invisible, such as cancer, diabetes, HIV infection, schizophrenia, intellectual disabilities, and traumatic brain injury, as well as those identified by the commenter. The Department recognizes that DOT has its own independent regulatory responsibilities under subtitle B of title II of the ADA. Based on these comments, the Department has decided that it needs to revisit the issuance of equipment and furniture regulations and it intends to do so in future rulemaking. 610(a). In addition, the Department believes that units designed and constructed or altered that comply with the requirements for residential facilities and are offered for sale to individuals must be provided at the same price as units without such features. To the extent that the public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA, they are subject to the DOT regulations at 49 CFR parts 37 and 39. Factor 1 was designed to help public entities assess whether a particular device was appropriate, given its particular physical features, for a particular location. A public entity may not require proof of disability, including, for example, a doctors note, before selling tickets for accessible seating. The deletion of section 9.5 of the 1991 Standards from the 2004 ADAAG presented two options: (1) Require coverage under the transient lodging standards, and subject such facilities to separate, conflicting requirements for design and construction; or (2) require coverage under the residential facilities standards, which would harmonize the regulatory requirements under the ADA and section 504. At least one Segway PT advocate suggested it would be permissible to seek documentation of the mobility disability in the form of a simple sign or permit. A at 580 (2009). For example, requiring presentation of a drivers license as the sole means of identification for purposes of paying by check would violate this section in situations where, for example, individuals with severe vision impairments or developmental disabilities or epilepsy are ineligible to receive a drivers license and the use of an alternative means of identification, such as another photo I.D. In addition, the Department posed four questions about captioning of information, especially safety and emergency information announcements, provided over public address (PA) systems. Rec. Several commenters asked about a separate seven-digit emergency call number for the 911 services. The NPRM proposed adding an explicit reference to written notes in the definition of auxiliary aids. Although this policy was already enunciated in the Departments 1993 Title II Technical Assistance Manual at II 7.1000, the Department proposed inclusion in the regulation itself because some Title II entities do not understand that exchange of written notes using paper and pencil is an available option in some circumstances. Many of the commenters responded to questions posed specifically by the Department, including questions regarding the Departments application of the 2004 ADAAG once adopted by the Department and the Departments regulatory assessment of the costs and benefits of particular elements. 4350.3 Rev1, Chapter 2, Occupancy Requirements of Subsidized Multifamily Housing Programs (June 2007), available at http://www.hud.gov/offices/adm/hudclips/handbooks/hsgh/4350.3 (last visited June 24, 2010). 73 FR 34466, 34478 (June 17, 2008). This distinction is not artificial. The Department notes that it is important to distinguish between conditions that are impairments and physical, environmental, cultural, or economic characteristics that are not impairments. For stadiums with existing systems that allow for real-time captioning, one commenter posited that dedicating the system exclusively to real-time captioning would lead to an annual loss of between $2 and $3 million per stadium in revenue from advertising currently running in that space. In essence, the private builder or contractor that operates the correctional facility does so at the direction of the government entity. In addition, staff with specified responsibilities for certain system elements, such as operating the complaint tracking system, developing the inventory of covered buildings, or conducting accessibility compliance surveys, etc., will require specialized training in those areas. The NPRM version of 35.137(b) provided that [a] public entity shall make reasonable modifications in its policies, practices, and procedures to permit the use of other power-driven mobility devices by individuals with disabilities, unless the public entity can demonstrate that the use of the device is not reasonable or that its use will result in a fundamental alteration in the public entitys service, program, or activity. 73 FR 34466, 34505 (June 17, 2008). (a) Where a public entity communicates by telephone with applicants and beneficiaries, text telephones (TTYs) or equally effective telecommunications systems shall be used to communicate with individuals who are deaf or hard of hearing or have speech impairments. Accordingly, use of miniature horses reduces the cost involved to retire, replace, and train replacement service animals. Commenters specifically cited pressure relief, reduced spasticity, increased stamina, and improved respiratory, neurologic, and muscular health as secondary medical benefits from being able to stand. There is no question that public entities have a legitimate interest in ferreting out fraudulent representations of mobility disabilities, especially given the recreational use of other power-driven mobility devices and the potential safety concerns created by having too many such devices in a specific facility at one time. Several commenters requested the expansion of the predictable assessments list, in particular to add specific learning disabilities. While virtually all of these commenters noted that a blanket exclusion of any device that falls under the definition of other power-driven mobility device would violate basic civil rights concepts, they also specifically stated that certain devices, particularly, off-highway vehicles, cannot be permitted in certain circumstances. Section 35.174 provides for referral of the matter to the Department of Justice if the agency is unable to obtain voluntary compliance. Of those who commented, a few sought clarification of the term manually-powered. One commenter suggested that the term be changed to human-powered. Other commenters requested that the Department include ordinary strollers in the non-exhaustive list of manually-powered mobility aids. Since strollers are not devices designed primarily for individuals with mobility disabilities, the Department does not consider them to be manually-powered mobility aids; however, strollers used in the context of transporting individuals with disabilities are subject to the same assessment required by the ADAs title II reasonable modification standards at 35.130(b)(7). This commenter also argued that while the increased number of required accessible units for residential facilities as compared to transient lodging may increase the cost of construction or alteration, this cost would be offset by a reduced need to adapt rooms later if the demand for accessible rooms exceeds the supply. After careful consideration of the public comments in response to the ANPRM, on June 17, 2008, the Department published an NPRM covering title II (73 FR 4466). Similarly, someone with ADHD should be compared to most people in the general population, most of whom do not have ADHD. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State. The Department has also conducted a final regulatory flexibility analysis (FRFA) as a component of this rulemaking. Commenters also pointed out that the Departments of the Interior and Defense have already mandated that golf courses under their jurisdictional control must make accessible golf cars available unless it can be demonstrated that doing so would change the fundamental nature of the game. Traumatic brain injury is already included because it is a physiological condition affecting one of the listed body systems, i.e., "neurological." The Department recognizes that despite its best efforts to provide clarification, the minimal protection language appears to have been misinterpreted. The majority of these types of single-user toilet rooms, nearly 7 million, are assumed to be located at Indoor Service Establishments, a broad facility group that encompasses various types of indoor retail stores such as bakeries, grocery stores, clothing stores, and hardware stores. The ADA requires the Access Board to issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter * * * to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities. 42 U.S.C. New paragraph (e) clarifies that neither the ADA nor the regulation alters current Federal law ensuring the rights of incompetent individuals with disabilities to receive food, water, and medical treatment. 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 as a reasonable modification that would permit him or her to attend follow-up or monitoring appointments from a health care provider. This approach was taken because, while the 1991 Standards are the only uniform set of accessibility standards that apply to public accommodations, commercial facilities, and State and local government facilities nationwide, it is also understood that many State and local jurisdictions have already adopted IBC/ANSI model code provisions that mirror those in the 2004 ADAAG. Section 35.175 states that courts are authorized to award attorneys fees, including litigation expenses and costs, as provided in section 505 of the Act. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis. (B) For the purposes of this section, the term path of travel also includes the restrooms, telephones, and drinking fountains serving the altered area. Exclusion of service animals. 604 Authority, Policy, and Responsibilities. There are many situations in which the interests of program participants without disabilities require that their companions with disabilities be provided effective communication. It is important to note, however, that the failure to include any impairment in the list of examples of predictable assessments does not indicate that that impairment should be subject to undue scrutiny. As with the primary baseline scenarios examined in the Final RIA, use of these three alternate IBC baselines results in positive expected NPVs in all cases. . In crafting the Act, Congress hewed to the ADA definition of "disability", which was modeled on the definition of "disability" in the Rehabilitation Act, and indicated that it wanted courts to interpret the definition as it had originally been construed. And, 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 does not impose a substantial limitation on a major life activity. Promoting through subordinate agency channels the policy set forth in this directive. After considering the comments, the Department agrees that this requirement is necessary to ensure that when an individual with a disability presses a call button, an accessible elevator will arrive in a timely manner. This is an important and overarching principle of the Americans with Disabilities Act. Rep. No. Sections 35.108(d)(1)(iii) and 36.105(d)(1)(iii) Impairment need not substantially limit more than one major life activity. In the Section-By-Section Analysis of 35.160 (Communications) below, the Department discusses in greater detail the kinds of situations in which interpreters or captioning would be necessary. .agency-blurb-container .agency_blurb.background--light { padding: 0; } Making this assessment will not usually require the services of a physician. Because numerous jurisdictions have already adopted the 48-inch side-reach requirement, the Departments failure to adopt the 48-inch side-reach requirement in the 2010 Standards, in the view of many commenters, would result in a significant reduction in accessibility, and would frustrate efforts that have been made to harmonize private sector model construction and accessibility codes with Federal accessibility requirements. The public entity may comply with the program accessibility requirement by delivering services at alternate accessible sites or making home visits as appropriate. Additional guidance is available in the Web Content Accessibility Guidelines (WCAG), (May 5, 1999) available at http://www.w3.org/TR/WAIWEBCONTENT (last visited June 24, 2010) which are developed and maintained by the Web Accessibility Initiative, a subgroup of the World Wide Web Consortium (W3C). At least 2 percent, but no fewer than one unit, of the total number of residential dwelling units shall provide communication features. See 154 Cong. The commenter also noted that guidance is needed regarding what average or acceptable duration might be with respect to certain activities. All public entities are required to do a self-evaluation. A public entity shall not ask about the nature or extent of a persons disability, but may make two inquiries to determine whether an animal qualifies as a service animal. These costs are detailed in the Final RIA, Chapter 7, Small Business Impact Analysis and accompanying Appendix 5, Small Business Data (available for review at http://www.ada.gov). The International Building Code (IBC), which is a private sector model construction code, contains a similar provision, and most jurisdictions enforce a version of the IBC as their building code, thereby minimizing the impact of this provision on public entities and public accommodations. Historically, individuals with disabilities have been excluded from such programs because they are not located in accessible locations, or inmates with disabilities have been segregated in units without equivalent programs. Pub. WebLaws Concerning the Access Board The Patient Protection and Affordable Care Act, which President Obama signed into law in 2010, supplements the Rehabilitation Act and authorizes the Board to develop accessibility standards for medical diagnostic equipment. Secure .gov websites use HTTPS (h) A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. It is not appropriate to require the person with a disability to bring another individual to provide such services. Frequently occurring examples of the first group (those who have a history of an impairment) are persons with histories of mental or emotional illness, heart disease, or cancer; examples of the second group (those who have been misclassified as having an impairment) are persons who have been misclassified as having mental retardation or mental illness. So, for example, stadium-style theaters that must vertically disperse wheelchair and companion seats must do so within the parameters of this rule. They objected to asking the Access Board to reconsider this requirement. Congress clearly intended to prohibit exclusion from drug treatment programs of the very individuals who need such programs because of their use of drugs, but, once an individual has been admitted to a program, abstention may be a necessary and appropriate condition to continued participation. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. Some commenters noted that it was helpful to highlight congressional intent that the definition of "disability" should be broadly construed and not subject to extensive analysis. As with section 504, there is also a private right of action for persons with disabilities, which includes the full panoply of remedies. First, for the first time, residential dwelling units are explicitly covered in the 2004 ADAAG in section 233. A person with traumatic brain injury is substantially limited in the major life activities of caring for ones self, learning, and working because of memory deficit, confusion, contextual difficulties, and inability to reason appropriately. The Department notes that a number of States have attempted to address the problem of arresting disabled persons for noncriminal conduct resulting from their disability through adoption of the Uniform Duties to Disabled Persons Act, and encourages other jurisdictions to consider that approach. Internet Web sites, when accessible, provide individuals with disabilities great independence, and have become an essential tool for many Americans. The general nondiscrimination provision in 35.130(a) provides that no individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity. See 42U.S.C. 509, 510; 42 U.S.C. Major life activities include such things as caring for ones self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The rationale for this third test, as used in the Rehabilitation Act of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273 (1987). Accordingly, this rule adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 Standards, which will give the guidelines legal effect with respect to the Departments title II and title III regulations. They suggested some form of certification, sticker, or other designation. (iii) If providing accessibility in conformance with this section to individuals with certain disabilities (e.g., those who use wheelchairs) would be structurally impracticable, accessibility shall nonetheless be ensured to persons with other types of disabilities, (e.g., those who use crutches or who have sight, hearing, or mental impairments) in accordance with this section.