Subpart A -- General

36.101 Purpose.

The purpose of this part is to implement title III of the Americans

with Disabilities Act of 1990 (42 U.S.C. 12181), 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.

Subpart A -- General

Section 36.101 Purpose.

Section 36.101 states the purpose of the rule, which is to effectuate

title III of the Americans with Disabilities Act of 1990. This title

prohibits discrimination on the basis of disability by public

accommodations, requires places of public accommodation and commercial

facilities to be designed, constructed, and altered in compliance with the

accessibility standards established by this part, and requires that

examinations or courses related to licensing or certification for

professional or trade purposes be accessible to persons with disabilities.

 

36.102 Application.

(a) General. This part applies to any--

(1) Public accommodation;

(2) Commercial facility; or

(3) Private entity that offers examinations or courses related to

applications, licensing, certification, or credentialing for secondary or

postsecondary education, professional, or trade purposes.

(b) Public accommodations.

(1) The requirements of this part applicable to public accommodations

are set forth in subparts B, C, and D of this part.

(2) The requirements of subparts B and C of this part obligate a

public accommodation only with respect to the operations of a place of

public accommodation.

(3) The requirements of subpart D of this part obligate a public

accommodation only with respect to--

(i) A facility used as, or designed or constructed for use as, a place

of public accommodation; or

(ii) A facility used as, or designed and constructed for use as, a

commercial facility.

(c) Commercial facilities. The requirements of this part applicable

to commercial facilities are set forth in subpart D of this part.

(d) Examinations and courses. The requirements of this part

applicable to private entities that offer examinations or courses as

specified in paragraph (a) of this section are set forth in 36.309.

(e) Exemptions and exclusions. This part does not apply to any

private club (except to the extent that the facilities of the private club

are made available to customers or patrons of a place of public

accommodation), or to any religious entity or public entity.

 

Section 36.102 Application.

Section 36.102 specifies the range of entities and facilities that have

obligations under the final rule. The rule applies to any public

accommodation or commercial facility as those terms are defined in 36.104.

It also applies, in accordance with section 309 of the ADA, to private

entities that offer examinations or courses related to applications,

licensing, certification, or credentialing for secondary or postsecondary

education, professional, or trade purposes. Except as provided in 36.206,

"Retaliation or coercion," this part does not apply to individuals other

than public accommodations or to public entities. Coverage of private

individuals and public entities is discussed in the preamble to 36.206.

As defined in 36.104, a public accommodation is a private entity that

owns, leases or leases to, or operates a place of public accommodation.

Section 36.102(b)(2) emphasizes that the general and specific public

accommodations requirements of subparts B and C obligate a public

accommodation only with respect to the operations of a place of public

accommodation. This distinction is drawn in recognition of the fact that

a private entity that meets the regulatory definition of public

accommodation could also own, lease or lease to, or operate facilities that

are not places of public accommodation. The rule would exceed the reach of

the ADA if it were to apply the public accommodations requirements of

subparts B and C to the operations of a private entity that do not involve

a place of public accommodation. Similarly, 36.102(b)(3) provides that the

new construction and alterations requirements of subpart D obligate a public

accommodation only with respect to facilities used as, or designed or

constructed for use as, places of public accommodation or commercial

facilities.

On the other hand, as mandated by the ADA and reflected in 36.102(c),

the new construction and alterations requirements of subpart D apply to a

commercial facility whether or not the facility is a place of public

accommodation, or is owned, leased, leased to, or operated by a public

accommodation.

Section 36.102(e) states that the rule does not apply to any private

club, religious entity, or public entity. Each of these terms is defined

in 36.104. The exclusion of private clubs and religious entities is derived

from section 307 of the ADA; and the exclusion of public entities is based

on the statutory definition of public accommodation in section 301(7) of the

ADA, which excludes entities other than private entities from coverage under

title III of the ADA.

 

36.103 Relationship to other laws.

(a) Rule of interpretation. Except as otherwise provided in this

part, this part shall not be construed to apply a lesser standard than the

standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C.

791) or the regulations issued by Federal agencies pursuant to that title.

(b) Section 504. This part does not affect the obligations of a

recipient of Federal financial assistance to comply with the requirements

of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and

regulations issued by Federal agencies implementing section 504.

(c) Other laws. This part does not invalidate or limit the remedies,

rights, and procedures of any other Federal laws, or State or local laws

(including State common law) that provide greater or equal protection for

the rights of individuals with disabilities or individuals associated with

them.

Section 36.103 Relationship to other laws.

Section 36.103 is derived from sections 501 (a) and (b) of the ADA.

Paragraph (a) provides that, except as otherwise specifically provided by

this part, the ADA is not intended to apply lesser standards than are

required under title V of the Rehabilitation Act of 1973, as amended (29

U.S.C. 790-794), or the regulations implementing that title. The standards

of title V of the Rehabilitation Act apply for purposes of the ADA to the

extent that the ADA has not explicitly adopted a different standard from

title V. Where the ADA explicitly provides a different standard from

section 504, the ADA standard applies to the ADA, but not to section 504.

For example, section 504 requires that all federally assisted programs and

activities be readily accessible to and usable by individuals with

handicaps, even if major structural alterations are necessary to make a

program accessible. Title III of the ADA, in contrast, only requires

alterations to existing facilities if the modifications are "readily

achievable," that is, able to be accomplished easily and without much

difficulty or expense. A public accommodation that is covered under both

section 504 and the ADA is still required to meet the "program

accessibility" standard in order to comply with section 504, but would not

be in violation of the ADA unless it failed to make "readily achievable"

modifications. On the other hand, an entity covered by the ADA is required

to make "readily achievable" modifications, even if the program can be made

accessible without any architectural modifications. Thus, an entity covered

by both section 504 and title III of the ADA must meet both the "program

accessibility" requirement and the "readily achievable" requirement.

Paragraph (b) makes explicit that the rule does not affect the

obligation of recipients of Federal financial assistance to comply with the

requirements imposed under section 504 of the Rehabilitation Act of 1973.

Paragraph (c) makes clear that Congress did not intend to displace any

of the rights or remedies provided by other Federal laws or other State or

local laws (including State common law) that provide greater or equal

protection to individuals with disabilities. A plaintiff may choose to

pursue claims under a State law that does not confer greater substantive

rights, or even confers fewer substantive rights, if the alleged violation

is protected under the alternative law and the remedies are greater. For

example, assume that a person with a physical disability seeks damages under

a State law that allows compensatory and punitive damages for discrimination

on the basis of physical disability, but does not allow them on the basis

of mental disability. In that situation, the State law would provide

narrower coverage, by excluding mental disabilities, but broader remedies,

and an individual covered by both laws could choose to bring an action under

both laws. Moreover, State tort claims confer greater remedies and are not

preempted by the ADA. A plaintiff may join a State tort claim to a case

brought under the ADA. In such a case, the plaintiff must, of course, prove

all the elements of the State tort claim in order to prevail under that

cause of action.

A commenter had concerns about privacy requirements for banking

transactions using telephone relay services. Title IV of the Act provides

adequate protections for ensuring the confidentiality of communications

using the relay services. This issue is more appropriately addressed by the

Federal Communications Commission in its regulation implementing title IV

of the Act.

 

36.104 Definitions.

For purposes of this part, the term--

Act means the Americans with Disabilities Act of 1990 (Pub. L. 101-336,

l04 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 6ll).

Commerce means travel, trade, traffic, commerce, transportation, or

communication--

(1) Among the several States;

(2) Between any foreign country or any territory or possession and any

State; or

(3) Between points in the same State but through another State or

foreign country.

Commercial facilities means facilities --

(1) Whose operations will affect commerce;

(2) That are intended for nonresidential use by a private entity; and

(3) That are not --

(i) Facilities that are covered or expressly exempted from coverage

under the Fair Housing Act of 1968, as amended (42 U.S.C. 3601-363l);

(ii) Aircraft; or

(iii) Railroad locomotives, railroad freight cars, railroad cabooses,

commuter or intercity passenger rail cars (including coaches, dining cars,

sleeping cars, lounge cars, and food service cars), any other railroad cars

described in section 242 of the Act or covered under title II of the Act,

or railroad rights-of-way. For purposes of this definition, "rail" and

"railroad" have the meaning given the term "railroad" in section 202(e) of

the Federal Railroad Safety Act of 1970 (45 U.S.C. 431(e)).

Current illegal use of drugs means illegal use of drugs that occurred

recently enough to justify a reasonable belief that a person's drug use is

current or that continuing use is a real and ongoing problem.

Disability means, with respect to an individual, a physical or mental

impairment that substantially limits one or more of the major life

activities of such individual; a record of such an impairment; or being

regarded as having such an impairment.

(1) 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; hemic

and lymphatic; skin; and endocrine;

(ii) Any mental or psychological disorder such as mental retardation,

organic brain syndrome, emotional or mental illness, and specific learning

disabilities;

(iii) The phrase physical or mental impairment includes, but is not

limited to, such contagious and noncontagious diseases and conditions as

orthopedic, visual, speech, and hearing impairments, cerebral palsy,

epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,

diabetes, mental retardation, emotional illness, specific learning

disabilities, HIV disease (whether symptomatic or asymptomatic),

tuberculosis, drug addiction, and alcoholism;

(iv) The phrase physical or mental impairment does not include

homosexuality or bisexuality.

(2) The phrase major life activities means functions such as caring

for one's self, performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working.

 

(3) The phrase has a record of such an impairment means has a history

of, or has been misclassified as having, a mental or physical impairment

that substantially limits one or more major life activities.

(4) The phrase is regarded as having an impairment means --

(i) Has a physical or mental impairment that does not substantially

limit major life activities but that is treated by a private entity as

constituting such a limitation;

(ii) Has a physical or mental impairment that substantially limits

major life activities only as a result of the attitudes of others toward

such impairment; or

(iii) Has none of the impairments defined in paragraph (1) of this

definition but is treated by a private entity as having such an impairment.

(5) The term disability does not include --

(i) Transvestism, transsexualism, pedophilia, exhibitionism,

voyeurism, gender identity disorders not resulting from physical

impairments, or other sexual behavior disorders;

(ii) Compulsive gambling, kleptomania, or pyromania; or

(iii) Psychoactive substance use disorders resulting from current

illegal use of drugs.

Drug means a controlled substance, as defined in schedules I through

V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

Facility means all or any portion of buildings, structures, sites,

complexes, equipment, rolling stock or other conveyances, roads, walks,

passageways, parking lots, or other real or personal property, including the

site where the building, property, structure, or equipment is located.

Illegal use of drugs means the use of one or more drugs, the possession

or distribution of which is unlawful under the Controlled Substances Act (21

U.S.C. 812). The term "illegal use of drugs" does not include the use of

a drug taken under supervision by a licensed health care professional, or

other uses authorized by the Controlled Substances Act or other provisions

of Federal law.

Individual with a disability means a person who has a disability. The

term "individual with a disability" does not include an individual who is

currently engaging in the illegal use of drugs, when the private entity acts

on the basis of such use.

Place of public accommodation means a facility, operated by a private

entity, whose operations affect commerce and fall within at least one of the

following categories--

(1) An inn, hotel, motel, or other place of lodging, except for an

establishment located within a building that contains not more than five

rooms for rent or hire and that is actually occupied by the proprietor of

the establishment as the residence of the proprietor;

(2) A restaurant, bar, or other establishment serving food or drink;

(3) A motion picture house, theater, concert hall, stadium, or other

place of exhibition or entertainment;

(4) An auditorium, convention center, lecture hall, or other place of

public gathering;

(5) A bakery, grocery store, clothing store, hardware store, shopping

center, or other sales or rental establishment;

(6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel

service, shoe repair service, funeral parlor, gas station, office of an

accountant or lawyer, pharmacy, insurance office, professional office of a

health care provider, hospital, or other service establishment;

(7) A terminal, depot, or other station used for specified public

transportation;

(8) A museum, library, gallery, or other place of public display or

collection;

(9) A park, zoo, amusement park, or other place of recreation;

(10) A nursery, elementary, secondary, undergraduate, or postgraduate

private school, or other place of education;

(11) A day care center, senior citizen center, homeless shelter, food

bank, adoption agency, or other social service center establishment; and

(12) A gymnasium, health spa, bowling alley, golf course, or other

place of exercise or recreation.

Private club means a private club or establishment exempted from

coverage under title II of the Civil Rights Act of 1964 (42 U.S.C.

2000a(e)).

Private entity means a person or entity other than a public entity.

 

Public accommodation means a private entity that owns, leases (or

leases to), or operates a place of public accommodation.

Public entity means --

(1) Any State or local government;

(2) Any department, agency, special purpose district, or other

instrumentality of a State or States or local government; and

(3) The National Railroad Passenger Corporation, and any commuter

authority (as defined in section 103(8) of the Rail Passenger Service Act

(45 U.S.C. 541)).

 

Qualified interpreter means an interpreter who is able to interpret

effectively, accurately and impartially both receptively and expressively,

using any necessary specialized vocabulary.

Readily achievable means easily accomplishable and able to be carried

out without much difficulty or expense. In determining whether an action

is readily achievable factors to be considered include--

(1) The nature and cost of the action needed under this part;

(2) The overall financial resources of the site or sites involved in

the action; the number of persons employed at the site; the effect on

expenses and resources; legitimate safety requirements that are necessary

for safe operation, including crime prevention measures; or the impact

otherwise of the action upon the operation of the site;

(3) The geographic separateness, and the administrative or fiscal

relationship of the site or sites in question to any parent corporation or

entity;

(4) If applicable, the overall financial resources of any parent

corporation or entity; the overall size of the parent corporation or entity

with respect to the number of its employees; the number, type, and location

of its facilities; and

(5) If applicable, the type of operation or operations of any parent

corporation or entity, including the composition, structure, and functions

of the workforce of the parent corporation or entity.

Religious entity means a religious organization or entity controlled

by a religious organization, including a place of worship.

Service animal means any guide dog, signal dog, or other animal

individually trained to do work or perform tasks for the benefit of an

individual with a disability, including, but not limited to, guiding

individuals with impaired vision, alerting individuals with impaired hearing

to intruders or sounds, providing minimal protection or rescue work, pulling

a wheelchair, or fetching dropped items.

Specified public transportation means transportation by bus, rail, or

any other conveyance (other than by aircraft) that provides the general

public with general or special service (including charter service) on a

regular and continuing basis.

State means each of the several States, the District of Columbia, the

Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the

Trust Territory of the Pacific Islands, and the Commonwealth of the Northern

Mariana Islands.

Undue burden means significant difficulty or expense. In determining

whether an action would result in an undue burden, factors to be considered

include--

(1) The nature and cost of the action needed under this part;

(2) The overall financial resources of the site or sites involved in

the action; the number of persons employed at the site; the effect on

expenses and resources; legitimate safety requirements that are necessary

for safe operation, including crime prevention measures; or the impact

otherwise of the action upon the operation of the site;

(3) The geographic separateness, and the administrative or fiscal

relationship of the site or sites in question to any parent corporation or

entity;

(4) If applicable, the overall financial resources of any parent

corporation or entity; the overall size of the parent corporation or entity

with respect to the number of its employees; the number, type, and location

of its facilities; and

(5) If applicable, the type of operation or operations of any parent

corporation or entity, including the composition, structure, and functions

of the workforce of the parent corporation or entity.

Section 36.104 Definitions.

"Act." The word "Act" is used in the regulation to refer to the

Americans with Disabilities Act of l990, Pub. L. l0l-336, which is also

referred to as the "ADA."

"Commerce." The definition of "commerce" is identical to the statutory

definition provided in section 301(1) of the ADA. It means travel, trade,

traffic, commerce, transportation, or communication among the several

States, between any foreign country or any territory or possession and any

State, or between points in the same State but through another State or

foreign country. Commerce is defined in the same manner as in title II of

the Civil Rights Act of 1964, which prohibits racial discrimination in

public accommodations.

The term "commerce" is used in the definition of "place of public

accommodation." According to that definition, one of the criteria that an

entity must meet before it can be considered a place of public accommodation

is that its operations affect commerce. The term "commerce" is similarly

used in the definition of "commercial facility."

The use of the phrase "operations affect commerce" applies the full

scope of coverage of the Commerce Clause of the Constitution in enforcing

the ADA. The Constitution gives Congress broad authority to regulate

interstate commerce, including the activities of local business enterprises

(e.g., a physician's office, a neighborhood restaurant, a laundromat, or a

bakery) that affect interstate commerce through the purchase or sale of

products manufactured in other States, or by providing services to

individuals from other States. Because of the integrated nature of the

national economy, the ADA and this final rule will have extremely broad

application.

"Commercial facilities" are those facilities that are intended for

nonresidential use by a private entity and whose operations affect commerce.

As explained under 36.401, "New construction," the new construction and

alteration requirements of subpart D of the rule apply to all commercial

facilities, whether or not they are places of public accommodation. Those

commercial facilities that are not places of public accommodation are not

subject to the requirements of subparts B and C (e.g., those requirements

concerning auxiliary aids and general nondiscrimination provisions).

Congress recognized that the employees within commercial facilities

would generally be protected under title I (employment) of the Act.

However, as the House Committee on Education and Labor pointed out, "[t]o

the extent that new facilities are built in a manner that make[s] them

accessible to all individuals, including potential employees, there will be

less of a need for individual employers to engage in reasonable

accommodations for particular employees." H.R. Rep. No. 485, 101st Cong.,

2d Sess., pt. 2, at 117 (1990) [hereinafter "Education and Labor report"].

While employers of fewer than 15 employees are not covered by title I's

employment discrimination provisions, there is no such limitation with

respect to new construction covered under title III. Congress chose not to

so limit the new construction provisions because of its desire for a uniform

requirement of accessibility in new construction, because accessibility can

be accomplished easily in the design and construction stage, and because

future expansion of a business or sale or lease of the property to a larger

employer or to a business that is a place of public accommodation is always

a possibility.

The term "commercial facilities" is not intended to be defined by

dictionary or common industry definitions. Included in this category are

factories, warehouses, office buildings, and other buildings in which

employment may occur. The phrase, "whose operations affect commerce," is

to be read broadly, to include all types of activities reached under the

commerce clause of the Constitution.

Privately operated airports are also included in the category of

commercial facilities. They are not, however, places of public

accommodation because they are not terminals used for "specified public

transportation." (Transportation by aircraft is specifically excluded from

the statutory definition of "specified public transportation.") Thus,

privately operated airports are subject to the new construction and

alteration requirements of this rule (subpart D) but not to subparts B and

C. (Airports operated by public entities are covered by title II of the

Act.) Places of public accommodation located within airports, such as

restaurants, shops, lounges, or conference centers, however, are covered by

subparts B and C of this part.

The statute's definition of "commercial facilities" specifically includes

only facilities "that are intended for nonresidential use" and specifically

exempts those facilities that are covered or expressly exempted from

coverage under the Fair Housing Act of 1968, as amended (42 U.S.C.

3601-3631). The interplay between the Fair Housing Act and the ADA with

respect to those facilities that are "places of public accommodation" was

the subject of many comments and is addressed in the preamble discussion of

the definition of "place of public accommodation."

"Current illegal use of drugs." The phrase "current illegal use of

drugs" is used in 36.209. Its meaning is discussed in the preamble for that

section.

"Disability." The definition of the term "disability"

is comparable to the definition of the term "individual with handicaps" in

section 7(8)(B) of the Rehabilitation Act and section 802(h) of the Fair

Housing Act. The Education and Labor Committee report makes clear that the

analysis of the term "individual with handicaps" by the Department of

Health, Education, and Welfare in its regulations implementing section 504

(42 FR 22685 (May 4, 1977)) and the analysis by the Department of Housing

and Urban Development in its regulation implementing the Fair Housing

Amendments Act of 1988 (54 FR 3232 (Jan. 23, 1989)) should also apply fully

to the term "disability" (Education and Labor report at 50).

The use of the term "disability" instead of "handicap" and the term

"individual with a disability" instead of "individual with handicaps"

represents an effort by the Congress to make use of up-to-date, currently

accepted terminology. The terminology applied to individuals with

disabilities is a very significant and sensitive issue. As with racial and

ethnic terms, the choice of words to describe a person with a disability is

overlaid with stereotypes, patronizing attitudes, and other emotional

connotations. Many individuals with disabilities, and organizations

representing such individuals, object to the use of such terms as

"handicapped person" or "the handicapped." In other recent legislation,

Congress also recognized this shift in terminology, e.g., by changing the

name of the National Council on the Handicapped to the National Council on

Disability (Pub. L. 100-630).

In enacting the Americans with Disabilities Act, Congress concluded

that it was important for the current legislation to use terminology most

in line with the sensibilities of most Americans with disabilities. No

change in definition or substance is intended nor should be attributed to

this change in phraseology.

The term "disability" means, with respect to an individual-

(A) a physical or mental impairment that substantially limits one or

more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

If an individual meets any one of these three tests, he

or she is considered to be an individual with a disability for purposes of

coverage under the Americans with Disabilities Act.

Congress adopted this same basic definition of "disability," first used

in the Rehabilitation Act of 1973 and in the Fair Housing Amendments Act of

1988, for a number of reasons. It has worked well since it was adopted in

1974. There is a substantial body of administrative interpretation and

judicial precedent on this definition. Finally, it would not be possible

to guarantee comprehensiveness by providing a list of specific disabilities,

especially because new disorders may be recognized in the future, as they

have since the definition was first established in 1974.

Test A -- A Physical or Mental Impairment That Substantially Limits One or

More of the Major Life Activities of Such Individual

Physical or mental impairment. Under the first test, an individual

must have a physical or mental impairment. As explained in paragraph (1)(i)

of the definition, "impairment" means any physiological disorder or

condition, cosmetic disfigurement, or anatomical loss affecting one or more

of the following body systems: neurological; musculoskeletal; special sense

organs (including speech organs that are not respiratory, such as vocal

cords, soft palate, and tongue); respiratory, including speech organs;

cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic;

skin; and endocrine. It also means any mental or psychological disorder,

such as mental retardation, organic brain syndrome, emotional or mental

illness, and specific learning disabilities. This list closely tracks the

one used in the regulations for section 504 of the Rehabilitation Act of

1973 (see, e.g., 45 CFR 84.3(j)(2)(i)).

Many commenters asked that "traumatic brain injury" be added to the

list in paragraph (1)(i). Traumatic brain injury is already included

because it is a physiological condition affecting one of the listed body

systems, i.e., "neurological." Therefore, it was unnecessary for the

Department to add the term to the regulation.

It is not possible to include a list of all the specific conditions,

contagious and noncontagious diseases, or infections that would constitute

physical or mental impairments because of the difficulty of ensuring the

comprehensiveness of such a list, particularly in light of the fact that

other conditions or disorders may be identified in the future. However, the

list of examples in paragraph (1)(iii) of the definition includes:

orthopedic, visual, speech and hearing impairments; cerebral palsy;

epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,

diabetes, mental retardation, emotional illness, specific learning

disabilities, HIV disease (symptomatic or asymptomatic), tuberculosis, drug

addiction, and alcoholism.

The examples of "physical or mental impairments" in paragraph (1)(iii)

are the same as those contained in many section 504 regulations, except for

the addition of the phrase "contagious and noncontagious" to describe the

types of diseases and conditions included, and the addition of "HIV disease

(symptomatic or asymptomatic)" and "tuberculosis" to the list of examples.

These additions are based on the ADA committee reports, caselaw, and

official legal opinions interpreting section 504. In School Board of Nassau

County v. Arline, 480 U.S. 273 (1987), a case involving an individual with

tuberculosis, the Supreme Court held that people with contagious diseases

are entitled to the protections afforded by section 504. Following the

Arline decision, this Department's Office of Legal Counsel issued a legal

opinion that concluded that symptomatic HIV disease is an impairment that

substantially limits a major life activity; therefore it has been included

in the definition of disability under this part. The opinion also concluded

that asymptomatic HIV disease is an impairment that substantially limits a

major life activity, either because of its actual effect on the individual

with HIV disease or because the reactions of other people to individuals

with HIV disease cause such individuals to be treated as though they are

disabled. See Memorandum from Douglas W. Kmiec, Acting Assistant Attorney

General, Office of Legal Counsel, Department of Justice, to Arthur B.

Culvahouse, Jr., Counsel to the President (Sept. 27, l988), reprinted in

Hearings on S. 933, the Americans with Disabilities Act, Before the Subcomm.

on the Handicapped of the Senate Comm. on Labor and Human Resources, l0lst

Cong., 1st Sess. 346 (l989). The phrase "symptomatic or asymptomatic" was

inserted in the final rule after "HIV disease" in response to commenters who

suggested that the clarification was necessary to give full meaning to the

Department's opinion.

Paragraph (1)(iv) of the definition states that the phrase "physical

or mental impairment" does not include homosexuality or bisexuality. These

conditions were never considered impairments under other Federal disability

laws. Section 511(a) of the statute makes clear that they are likewise not

to be considered impairments under the Americans with Disabilities Act.

Physical or mental impairment does not include simple physical

characteristics, such as blue eyes or black hair. Nor does it include

environmental, cultural, economic, or other disadvantages, such as having

a prison record, or being poor. Nor is age a disability. Similarly, the

definition does not include common personality traits such as poor judgment

or a quick temper where these are not symptoms of a mental or psychological

disorder. However, a person who has these characteristics and also has a

physical or mental impairment

may be considered as having a disability for purposes of the

Americans with Disabilities Act based on the impairment.

Substantial limitation of a major life activity. Under Test A, the

impairment must be one that "substantially limits a major life activity."

Major life activities include such things as caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. For example, a person who is paraplegic is

substantially limited in the major life activity of walking, a person who

is blind is substantially limited in the major life activity of seeing, and

a person who is mentally retarded is substantially limited in the major life

activity of learning. A person with traumatic brain injury is substantially

limited in the major life activities of caring for one's self, learning, and

working because of memory deficit, confusion, contextual difficulties, and

inability to reason appropriately.

A person is considered an individual with a disability for purposes of

Test A, the first prong of the definition, when the individual's important

life activities are restricted as to the conditions, manner, or duration

under which they can be performed in comparison to most people. A person

with a minor, trivial impairment, such as a simple infected finger, is not

impaired in a major life activity. A person who can walk for 10 miles

continuously is not substantially limited in walking merely because, on the

eleventh mile, he or she begins to experience pain, because most people

would not be able to walk eleven miles without experiencing some discomfort.

The Department received many comments on the proposed rule's inclusion

of the word "temporary" in the definition of "disability." The preamble

indicated that impairments are not necessarily excluded from the definition

of "disability" simply because they are temporary, but that the duration,

or expected duration, of an impairment is one factor that may properly be

considered in determining whether the impairment substantially limits a

major life activity. The preamble recognized, however, that temporary

impairments, such as a broken leg, are not commonly regarded as

disabilities, and only in rare circumstances would the degree of the

limitation and its expected duration be substantial. Nevertheless, many

commenters objected to inclusion of the word "temporary" both because it is

not in the statute and because it is not contained in the definition of

"disability" set forth in the title I regulations of the Equal Employment

Opportunity Commission (EEOC). The word "temporary" has been deleted from

the final rule to conform with the statutory language. The question of

whether a temporary impairment is a disability must be resolved on a

case-by-case basis, taking into consideration both the duration (or expected

duration) of the impairment and the extent to which it actually limits a

major life activity of the affected individual.

The question of whether a person has a disability should be assessed

without regard to the availability of mitigating measures, such as

reasonable modifications or auxiliary aids and services. For example, a

person with hearing loss is substantially limited in the major life activity

of hearing, even though the loss may be improved through the use of a

hearing aid. Likewise, persons with impairments, such as epilepsy or

diabetes, that substantially limit a major life activity, are covered under

the first prong of the definition of disability, even if the effects of the

impairment are controlled by medication.

Many commenters asked that environmental illness (also known as

multiple chemical sensitivity) as well as allergy to cigarette smoke be

recognized as disabilities. The Department, however, declines to state

categorically that these types of allergies or sensitivities are

disabilities, because the determination as to whether an impairment is a

disability depends on whether, given the particular circumstances at issue,

the impairment substantially limits one or more major life activities (or

has a history of, or is regarded as having such an effect).

Sometimes respiratory or neurological functioning is so severely

affected that an individual will satisfy the requirements to be considered

disabled under the regulation. Such an individual would be entitled to all

of the protections afforded by the Act and this part. In other cases,

individuals may be sensitive to environmental elements or to smoke but their

sensitivity will not rise to the level needed to constitute a disability.

For example, their major life activity of breathing may be somewhat, but not

substantially, impaired. In such circumstances, the individuals are not

disabled and are not entitled to the protections of the statute despite

their sensitivity to environmental agents.

In sum, the determination as to whether allergies to cigarette smoke,

or allergies or sensitivities characterized by the commenters as

environmental illness are disabilities covered by the regulation must be

made using the same case-by-case analysis that is applied to all other

physical or mental impairments. Moreover, the addition of specific

regulatory provisions relating to environmental illness in the final rule

would be inappropriate at this time pending future consideration of the

issue by the Architectural and Transportation Barriers Compliance Board, the

Environmental Protection Agency, and the Occupational Safety and Health

Administration of the Department of Labor.

Test B -- A Record of Such an Impairment

This test is intended to cover those who have a record of an

impairment. As explained in paragraph (3) of the rule's definition of

disability, this includes a person who has a history of an impairment that

substantially limited a major life activity, such as someone who has

recovered from an impairment. It also includes persons who have been

misclassified as having an impairment.

This provision is included in the definition in part to protect

individuals who have recovered from a physical or mental impairment that

previously substantially limited them

in a major life activity. Discrimination on the basis of such

a past impairment is prohibited. Frequently occurring examples of the first

group (those who have a history of an impairment) are persons with histories

of mental or emotional illness, heart disease, or cancer; examples of the

second group (those who have been misclassified as having an impairment) are

persons who have been misclassified as having mental retardation or mental

illness.

Test C -- Being Regarded as Having Such an Impairment

 

This test, as contained in paragraph (4) of the definition, is intended

to cover persons who are treated by a private entity or public accommodation

as having a physical or mental impairment that substantially limits a major

life activity. It applies when a person is treated as if he or she has an

impairment that substantially limits a major life activity, regardless of

whether that person has an impairment.

The Americans with Disabilities Act uses the same "regarded as" test

set forth in the regulations implementing section 504 of the Rehabilitation

Act. See, e.g., 28 CFR 42.540(k)(2)(iv), which provides:

(iv) "Is regarded as having an impairment" means (A) Has a physical or

mental impairment that does not substantially limit major life activities

but that is treated by a recipient as constituting such a limitation; (B)

Has a physical or mental impairment that substantially limits major life

activities only as a result of the attitudes of others toward such

impairment; or (C) Has none of the impairments defined in paragraph

(k)(2)(i) of this section but is treated by a recipient as having such an

impairment.

The perception of the private entity or public accommodation is a key

element of this test. A person who perceives himself or herself to have an

impairment, but does not have an impairment, and is not treated as if he or

she has an impairment, is not protected under this test. A person would be

covered under this test if a restaurant refused to serve that person because

of a fear of "negative reactions" of others to that person. A person would

also be covered if a public accommodation refused to serve a patron because

it perceived that the patron had an impairment that limited his or her

enjoyment of the goods or services being offered.

For example, persons with severe burns often encounter discrimination

in community activities, resulting in substantial limitation of major life

activities. These persons would be covered under this test based on the

attitudes of others towards the impairment, even if they did not view

themselves as "impaired."

The rationale for this third test, as used in the Rehabilitation Act

of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273

(1987). The Court noted that, although an individual may have an impairment

that does not in fact substantially limit a major life activity, the

reaction of others may prove just as disabling. "Such an impairment might

not diminish a person's physical or mental capabilities, but could

nevertheless substantially limit that person's ability to work as a result

of the negative reactions of others to the impairment." Id. at 283. The

Court concluded that, by including this test in the Rehabilitation Act's

definition, "Congress acknowledged that society's accumulated myths and

fears about disability and disease are as handicapping as are the physical

limitations that flow from actual impairment." Id. at 284.

Thus, a person who is not allowed into a public accommodation because

of the myths, fears, and stereotypes associated with disabilities would be

covered under this third test whether or not the person's physical or mental

condition would be considered a disability under the first or second test

in the definition.

If a person is refused admittance on the basis of an actual or

perceived physical or mental condition, and the public accommodation can

articulate no legitimate reason for the refusal (such as failure to meet

eligibility criteria), a perceived concern about admitting persons with

disabilities could be inferred and the individual would qualify for coverage

under the "regarded as" test. A person who is covered because of being

regarded as having an impairment is not required to show that the public

accommodation's perception is inaccurate (e.g., that he will be accepted by

others, or that insurance rates will not increase) in order to be admitted

to the public accommodation.

Paragraph (5) of the definition lists certain conditions that are not

included within the definition of "disability." The excluded conditions

are: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism,

gender identity disorders not resulting from physical impairments, other

sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and

psychoactive substance use disorders resulting from current illegal use of

drugs. Unlike homosexuality and bisexuality, which are not considered

impairments under either the Americans with Disabilities Act (see the

definition of "disability," paragraph (1)(iv)) or section 504, the

conditions listed in paragraph (5), except for transvestism, are not

necessarily excluded as impairments under section 504. (Transvestism was

excluded from the definition of disability for section 504 by the Fair

Housing Amendments Act of 1988, Pub. L. 100-430, 6(b).) The phrase "current

illegal use of drugs" used in this definition is explained in the preamble

to 36.209.

"Drug." The definition of the term "drug" is taken from section

510(d)(2) of the ADA.

"Facility." "Facility" means all or any portion of buildings,

structures, sites, complexes, equipment, rolling stock or other conveyances,

roads, walks, passageways, parking lots, or other real or personal property,

including the site where the building, property, structure, or equipment is

located. Committee reports made clear that the definition of facility was

drawn from the definition of facility in current Federal regulations (see,

e.g., Education and Labor report at 114). It includes both indoor and

outdoor areas where human-constructed improvements, structures, equipment,

or property have been added to the natural environment.

 

The term "rolling stock or other conveyances" was not included in the

definition of facility in the proposed rule. However, commenters raised

questions about the applicability of this part to places of public

accommodation operated in mobile facilities (such as cruise ships, floating

restaurants, or mobile health units). Those places of public accommodation

are covered under this part, and would be included in the definition of

"facility." Thus the requirements of subparts B and C would apply to those

places of public accommodation. For example, a covered entity could not

discriminate on the basis of disability in the full and equal enjoyment of

the facilities (36.201). Similarly, a cruise line could not apply

eligibility criteria to potential passengers in a manner that would screen

out individuals with disabilities, unless the criteria are "necessary," as

provided in 36.301.

However, standards for new construction and alterations of such

facilities are not yet included in the Americans with Disabilities Act

Accessibility Guidelines for Buildings and Facilities (ADAAG) adopted by

36.406 and incorporated in Appendix A. The Department therefore will not

interpret the new construction and alterations provisions of subpart D to

apply to the types of facilities discussed here, pending further development

of specific requirements.

Requirements pertaining to accessible transportation services provided

by public accommodations are included in 36.310 of this part; standards

pertaining to accessible vehicles will be issued by the Secretary of

Transportation pursuant to section 306 of the Act, and will be codified at

49 CFR Part 37.

A public accommodation has obligations under this rule with respect to

a cruise ship to the extent that its operations are subject to the laws of

the United States.

The definition of "facility" only includes the site over which the

private entity may exercise control or on which a place of public

accommodation or a commercial facility is located. It does not include, for

example, adjacent roads or walks controlled by a public entity that is not

subject to this part. Public entities are subject to the requirements of

title II of the Act. The Department's regulation implementing title II,

which will be codified at 28 CFR part 35, addresses the obligations of

public entities to ensure accessibility by providing curb ramps at

pedestrian walkways.

"Illegal use of drugs." The definition of "illegal use of drugs" is

taken from section 510(d)(1) of the Act and clarifies that the term includes

the illegal use of one or more drugs.

 

"Individual with a disability" means a person who has a disability but

does not include an individual who is currently illegally using drugs, when

the public accommodation acts on the basis of such use. The phrase "current

illegal use of drugs" is explained in the preamble to 36.209.

"Place of public accommodation." The term "place of public

accommodation" is an adaptation of the statutory definition of "public

accommodation" in section 301(7) of the ADA and appears as an element of the

regulatory definition of public accommodation. The final rule defines

"place of public accommodation" as a facility, operated by a private entity,

whose operations affect commerce and fall within at least one of 12

specified categories. The term "public accommodation," on the other hand,

is reserved by the final rule for the private entity that owns, leases (or

leases to), or operates a place of public accommodation. It is the public

accommodation, and not the place of public accommodation, that is subject

to the regulation's nondiscrimination requirements. Placing the obligation

not to discriminate on the public accommodation, as defined in the rule, is

consistent with section 302(a) of the ADA, which places the obligation not

to discriminate on any person who owns, leases (or leases to), or operates

a place of public accommodation.

Facilities operated by government agencies or other public entities as

defined in this section do not qualify as places of public accommodation.

The actions of public entities are governed by title II of the ADA and will

be subject to regulations issued by the Department of Justice under that

title. The receipt of government assistance by a private entity does not

by itself preclude a facility from being considered as a place of public

accommodation.

The definition of place of public accommodation incorporates the 12

categories of facilities represented in the statutory definition of public

accommodation in section 301(7) of the ADA:

1. Places of lodging.

2. Establishments serving food or drink.

3. Places of exhibition or entertainment.

4. Places of public gathering.

5. Sales or rental establishments.

6. Service establishments.

7. Stations used for specified public transportation.

8. Places of public display or collection.

9. Places of recreation.

10. Places of education.

11. Social service center establishments.

12. Places of exercise or recreation.

 

In order to be a place of public accommodation, a facility must be

operated by a private entity, its operations must affect commerce, and it

must fall within one of these 12 categories. While the list of categories

is exhaustive, the representative examples of facilities within each

category are not. Within each category only a few examples are given. The

category of social service center establishments would include not only the

types of establishments listed, day care centers, senior citizen centers,

homeless shelters, food banks, adoption agencies, but also establishments

such as substance abuse treatment centers, rape crisis centers, and halfway

houses. As another example, the category of sales or rental establishments

would include an innumerable array of facilities that would sweep far beyond

the few examples given in the regulation. For example, other retail or

wholesale establishments selling or renting items, such as bookstores,

videotape rental stores, car rental establishments, pet stores, and jewelry

stores would also be covered under this category, even though they are not

specifically listed.

Several commenters requested clarification as to the coverage of

wholesale establishments under the category of "sales or rental

establishments." The Department intends for wholesale establishments to be

covered under this category as places of public accommodation except in

cases where they sell exclusively to other businesses and not to

individuals. For example, a company that grows food produce and supplies

its crops exclusively to food processing corporations on a wholesale basis

does not become a public accommodation because of these transactions. If

this company operates a road side stand where its crops are sold to the

public, the road side stand would be a sales establishment covered by the

ADA. Conversely, a sales establishment that markets its goods as "wholesale

to the public" and sells to individuals would not be exempt from ADA

coverage despite its use of the word "wholesale" as a marketing technique.

Of course, a company that operates a place of public accommodation is

subject to this part only in the operation of that place of public

accommodation. In the example given above, the wholesale produce company

that operates a road side stand would be a public accommodation only for the

purposes of the operation of that stand. The company would be prohibited

from discriminating on the basis of disability in the operation of the road

side stand, and it would be required to remove barriers to physical access

to the extent that it is readily achievable to do so (see 36.304); however,

in the event that it is not readily achievable to remove barriers, for

example, by replacing a gravel surface or regrading the area around the

stand to permit access by persons with mobility impairments, the company

could meet its obligations through alternative methods of making its goods

available, such as delivering produce to a customer in his or her car (see

36.305). The concepts of readily achievable barrier removal and

alternatives to barrier removal are discussed further in the preamble

discussion of 36.304 and 36.305.

Even if a facility does not fall within one of the 12 categories, and

therefore does not qualify as a place of public accommodation, it still may

be a commercial facility as defined in 36.104 and be subject to the new

construction and alterations requirements of subpart D.

A number of commenters questioned the treatment of residential hotels

and other residential facilities in the Department's proposed rule. These

commenters were essentially seeking resolution of the relationship between

the Fair Housing Act and the ADA concerning facilities that are both

residential in nature and engage in activities that would cause them to be

classified as "places of public accommodation" under the ADA. The ADA's

express exemption relating to the Fair Housing Act applies only to

"commercial facilities" and not to "places of public accommodation."

 

A facility whose operations affect interstate commerce is a place of

public accommodation for purposes of the ADA to the extent that its

operations include those types of activities engaged in or services provided

by the facilities contained on the list of 12 categories in section 301(7)

of the ADA. Thus, a facility that provides social services would be

considered a "social service center establishment." Similarly, the category

"places of lodging" would exclude solely residential facilities because the

nature of a place of lodging contemplates the use of the facility for

short-term stays.

Many facilities, however, are mixed use facilities. For example, in

a large hotel that has a separate residential apartment wing, the

residential wing would not be covered by the ADA because of the nature of

the occupancy of that part of the facility. This residential wing would,

however, be covered by the Fair Housing Act. The separate nonresidential

accommodations in the rest of the hotel would be a place of lodging, and

thus a public accommodation subject to the requirements of this final rule.

If a hotel allows both residential and short-term stays, but does not

allocate space for these different uses in separate, discrete units, both

the ADA and the Fair Housing Act may apply to the facility. Such

determinations will need to be made on a case-by-case basis. Any place of

lodging of the type described in paragraph (1) of the definition of place

of public accommodation and that is an establishment located within a

building that contains not more than five rooms for rent or hire and is

actually occupied by the proprietor of the establishment as his or her

residence is not covered by the ADA. (This exclusion from coverage does not

apply to other categories of public accommodations, for example,

professional offices or homeless shelters, that are located in a building

that is also occupied as a private residence.)

A number of commenters noted that the term "residential hotel" may also

apply to a type of hotel commonly known as a "single room occupancy hotel."

Although such hotels or portions of such hotels may fall under the Fair

Housing Act when operated or used as long-term residences, they are also

considered "places of lodging" under the ADA when guests of such hotels are

free to use them on a short-term basis. In addition, "single room occupancy

hotels" may provide social services to their guests, often through the

operation of Federal or State grant programs. In such a situation, the

facility would be considered a "social service center establishment" and

thus covered by the ADA as a place of public accommodation, regardless of

the length of stay of the occupants.

A similar analysis would also be applied to other residential

facilities that provide social services, including homeless shelters,

shelters for people seeking refuge from domestic violence, nursing homes,

residential care facilities, and other facilities where persons may reside

for varying lengths of time. Such facilities should be analyzed under the

Fair Housing Act to determine the application of that statute. The ADA,

however, requires a separate and independent analysis. For example, if the

facility, or a portion of the facility, is intended for or permits

short-term stays, or if it can appropriately be categorized as a service

establishment or as a social service establishment, then the facility or

that portion of the facility used for the covered purpose is a place of

public accommodation under the ADA. For example, a homeless shelter that

is intended and used only for long-term residential stays and that does not

provide social services to its residents would not be covered as a place of

public accommodation. However, if this facility permitted short-term stays

or provided social services to its residents, it would be covered under the

ADA either as a "place of lodging" or as a "social service center

establishment," or as both.

 

A private home, by itself, does not fall within any of the 12

categories. However, it can be covered as a place of public accommodation

to the extent that it is used as a facility that would fall within one of

the 12 categories. For example, if a professional office of a dentist,

doctor, or psychologist is located in a private home, the portion of the

home dedicated to office use (including areas used both for the residence

and the office, e.g., the entrance to the home that is also used as the

entrance to the professional office) would be considered a place of public

accommodation. Places of public accommodation located in residential

facilities are specifically addressed in 36.207.

If a tour of a commercial facility that is not otherwise a place of

public accommodation, such as, for example, a factory or a movie studio

production set, is open to the general public, the route followed by the

tour is a place of public accommodation and the tour must be operated in

accordance with the rule's requirements for public accommodations. The

place of public accommodation defined by the tour does not include those

portions of the commercial facility that are merely viewed from the tour

route. Hence, the barrier removal requirements of 36.304 only apply to the

physical route followed by the tour participants and not to work stations

or other areas that are merely adjacent to, or within view of, the tour

route. If the tour is not open to the general public, but rather is

conducted, for example, for selected business colleagues, partners,

customers, or consultants, the tour route is not a place of public

accommodation and the tour is not subject to the requirements for public

accommodations.

Public accommodations that receive Federal financial assistance are

subject to the requirements of section 504 of the Rehabilitation Act as well

as the requirements of the ADA.

Private schools, including elementary and secondary schools, are

covered by the rule as places of public accommodation. The rule itself,

however, does not require a private school to provide a free appropriate

education or develop an individualized education program in accordance with

regulations of the Department of Education implementing section 504 of the

Rehabilitation Act of 1973, as amended (34 CFR part 104), and regulations

implementing the Individuals with Disabilities Education Act (34 CFR part

300). The receipt of Federal assistance by a private school, however, would

trigger application of the Department of Education's regulations to the

extent mandated by the particular type of assistance received.

"Private club." The term "private club" is defined in accordance with

section 307 of the ADA as a private club or establishment exempted from

coverage under title II of the Civil Rights Act of 1964. Title II of the

1964 Act exempts any "private club or other establishment not in fact open

to the public, except to the extent that the facilities of such

establishment are made available to the customers or patrons of [a place of

public accommodation as defined in title II]." The rule, therefore, as

reflected in 36.102(e) of the application section, limits the coverage of

private clubs accordingly. The obligations of a private club that rents

space to any other private entity for the operation of a place of public

accommodation are discussed further in connection with 36.201.

In determining whether a private entity qualifies as a private club

under title II, courts have considered such factors as the degree of member

control of club operations, the selectivity of the membership selection

process, whether substantial membership fees are charged, whether the entity

is operated on a nonprofit basis, the extent to which the facilities are

open to the public, the degree of public funding, and whether the club was

created specifically to avoid compliance with the Civil Rights Act. See,

e.g., Tillman v. Wheaton-Haven Recreation Ass'n, 4l0 U.S. 43l (l973); Daniel

v. Paul, 395 U.S. 298 (l969); Olzman v. Lake Hills Swim Club, Inc., 495 F.2d

l333 (2d Cir. l974); Anderson v. Pass Christian Isles Golf Club, Inc., 488

F.2d 855 (5th Cir. l974); Smith v. YMCA, 462 F.2d 634 (5th Cir. l972); Stout

v. YMCA, 404 F.2d 687 (5th Cir. l968); United States v. Richberg, 398 F.2d

523 (5th Cir. l968); Nesmith v. YMCA, 397 F.2d 96 (4th Cir. l968); United

States v. Lansdowne Swim Club, 7l3 F. Supp. 785 (E.D. Pa. l989); Durham v.

Red Lake Fishing and Hunting Club, Inc., 666 F. Supp. 954 (W.D. Tex. l987);

New York v. Ocean Club, Inc., 602 F. Supp. 489 (E.D.N.Y. l984); Brown v.

Loudoun Golf and Country Club, Inc., 573 F. Supp. 399 (E.D. Va. l983);

United States v. Trustees of Fraternal Order of Eagles, 472 F. Supp. ll74

(E.D. Wis. l979); Cornelius v. Benevolent Protective Order of Elks, 382 F.

Supp. ll82 (D. Conn. l974).

"Private entity." The term "private entity" is defined as any

individual or entity other than a public entity. It is used as part of the

definition of "public accommodation" in this section.

 

The definition adds "individual" to the statutory definition of private

entity (see section 301(6) of the ADA). This addition clarifies that an

individual may be a private entity and, therefore, may be considered a

public accommodation if he or she owns, leases (or leases to), or operates

a place of public accommodation. The explicit inclusion of individuals

under the definition of private entity is consistent with section 302(a) of

the ADA, which broadly prohibits discrimination on the basis of disability

by any person who owns, leases (or leases to), or operates a place of public

accommodation.

"Public accommodation." The term "public accommodation" means a

private entity that owns, leases (or leases to), or operates a place of

public accommodation. The regulatory term, "public accommodation,"

corresponds to the statutory term, "person," in section 302(a) of the ADA.

The ADA prohibits discrimination "by any person who owns, leases (or leases

to), or operates a place of public accommodation." The text of the

regulation consequently places the ADA's nondiscrimination obligations on

"public accommodations" rather than on "persons" or on "places of public

accommodation."

As stated in 36.102(b)(2), the requirements of subparts B and C

obligate a public accommodation only with respect to the operations of a

place of public accommodation. A public accommodation must also meet the

requirements of subpart D with respect to facilities used as, or designed

or constructed for use as, places of public accommodation or commercial

facilities.

"Public entity." The term "public entity" is defined in accordance

with section 201(1) of the ADA as any State or local government; any

department, agency, special purpose district, or other instrumentality of

a State or States or local government; and the National Railroad Passenger

Corporation, and any commuter authority (as defined in section 103(8) of the

Rail Passenger Service Act). It is used in the definition of "private

entity" in 36.104. Public entities are excluded from the definition of

private entity and therefore cannot qualify as public accommodations under

this regulation. However, the actions of public entities are covered by

title II of the ADA and by the Department's title II regulations codified

at 28 CFR part 35.

"Qualified interpreter." The Department received substantial comment

regarding the lack of a definition of "qualified interpreter." The proposed

rule defined auxiliary aids and services to include the statutory term,

"qualified interpreters" (36.303(b)), but did not define that term. Section

36.303 requires the use of a qualified interpreter where necessary to

achieve effective communication, unless an undue burden or fundamental

alteration would result. Commenters stated that a lack of guidance on what

the term means would create confusion among those trying to secure

interpreting services and often result in less than effective communication.

 

Many commenters were concerned that, without clear guidance on the

issue of "qualified" interpreter, the rule would be interpreted to mean

"available, rather than qualified" interpreters. Some claimed that few

public accommodations would understand the difference between a qualified

interpreter and a person who simply knows a few signs or how to fingerspell.

 

In order to clarify what is meant by "qualified interpreter" the

Department has added a definition of the term to the final rule. A

qualified interpreter means an interpreter who is able to interpret

effectively, accurately, and impartially both receptively and expressively,

using any necessary specialized vocabulary. This definition focuses on the

actual ability of the interpreter in a particular interpreting context to

facilitate effective communication between the public accommodation and the

individual with disabilities.

Public comment also revealed that public accommodations have at times

asked persons who are deaf to provide family members or friends to

interpret. In certain circumstances, notwithstanding that the family member

or friend is able to interpret or is a certified interpreter, the family

member or friend may not be qualified to render the necessary interpretation

because of factors such as emotional or personal involvement or

considerations of confidentiality that may adversely affect the ability to

interpret "effectively, accurately, and impartially."

"Readily achievable." The definition of "readily achievable" follows

the statutory definition of that term in section 301(9) of the ADA. Readily

achievable means easily accomplishable and able to be carried out without

much difficulty or expense. The term is used as a limitation on the

obligation to remove barriers under 36.304(a), 36.305(a), 36.308(a), and

36.310(b). Further discussion of the meaning and application of the term

"readily achievable" may be found in the preamble section for 36.304.

The definition lists factors to be considered in determining whether

barrier removal is readily achievable in any particular circumstance. A

significant number of commenters objected to 36.306 of the proposed rule,

which listed identical factors to be considered for determining "readily

achievable" and "undue burden" together in one section. They asserted that

providing a consolidated section blurred the distinction between the level

of effort required by a public accommodation under the two standards. The

readily achievable standard is a "lower" standard than the "undue burden"

standard in terms of the level of effort required, but the factors used in

determining whether an action is readily achievable or would result in an

undue burden are identical (see Education and Labor report at 109).

Although the preamble to the proposed rule clearly delineated the

relationship between the two standards, to eliminate any confusion the

Department has deleted 36.306 of the proposed rule. That section, in any

event, as other commenters noted, had merely repeated the lists of factors

contained in the definitions of readily achievable and undue burden.

The list of factors included in the definition is derived from section

301(9) of the ADA. It reflects the congressional intention that a wide

range of factors be considered in determining whether an action is readily

achievable. It also takes into account that many local facilities are owned

or operated by parent corporations or entities that conduct operations at

many different sites. This section makes clear that, in some instances,

resources beyond those of the local facility where the barrier must be

removed may be relevant in determining whether an action is readily

achievable. One must also evaluate the degree to which any parent entity

has resources that may be allocated to the local facility.

The statutory list of factors in section 30l(9) of the Act uses the

term "covered entity" to refer to the larger entity of which a particular

facility may be a part. "Covered entity" is not a defined term in the ADA

and is not used consistently throughout the Act. The definition, therefore,

substitutes the term "parent entity" in place of "covered entity" in

paragraphs (3), (4), and (5) when referring to the larger private entity

whose overall resources may be taken into account. This usage is consistent

with the House Judiciary Committee's use of the term "parent company" to

describe the larger entity of which the local facility is a part (H.R. Rep.

No. 485, 101st Cong., 2d Sess., pt. 3, at 40-4l, 54-55 (1990) [hereinafter

"Judiciary report"]).

A number of commenters asked for more specific guidance as to when and

how the resources of a parent corporation or entity are to be taken into

account in determining what is readily achievable. The Department believes

that this complex issue is most appropriately resolved on a case-by-case

basis. As the comments reflect, there is a wide variety of possible

relationships between the site in question and any parent corporation or

other entity. It would be unwise to posit legal ramifications under the ADA

of even generic relationships (e.g., banks involved in foreclosures or

insurance companies operating as trustees or in other similar fiduciary

relationships), because any analysis will depend so completely on the

detailed fact situations and the exact nature of the legal relationships

involved. The final rule does, however, reorder the factors to be

considered. This shift and the addition of the phrase "if applicable" make

clear that the line of inquiry concerning factors will start at the site

involved in the action itself. This change emphasizes that the overall

resources, size, and operations of the parent corporation or entity should

be considered to the extent appropriate in light of "the geographic

separateness, and the administrative or fiscal relationship of the site or

sites in question to any parent corporation or entity."

Although some commenters sought more specific numerical guidance on the

definition of readily achievable, the Department has declined to establish

in the final rule any kind of numerical formula for determining whether an

action is readily achievable. It would be difficult to devise a specific

ceiling on compliance costs that would take into account the vast diversity

of enterprises covered by the ADA's public accommodations requirements and

the economic situation that any particular entity would find itself in at

any moment. The final rule, therefore, implements the flexible case-by-case

approach chosen by Congress.

A number of commenters requested that security considerations be

explicitly recognized as a factor in determining whether a barrier removal

action is readily achievable. The Department believes that legitimate

safety requirements, including crime prevention measures, may be taken into

account so long as they are based on actual risks and are necessary for safe

operation of the public accommodation. This point has been included in the

definition.

Some commenters urged the Department not to consider acts of barrier

removal in complete isolation from each other in determining whether they

are readily achievable. The Department believes that it is appropriate to

consider the cost of other barrier removal actions as one factor in

determining whether a measure is readily achievable.

 

"Religious entity." The term "religious entity" is defined in

accordance with section 307 of the ADA as a religious organization or entity

controlled by a religious organization, including a place of worship.

Section 36.102(e) of the rule states that the rule does not apply to any

religious entity.

The ADA's exemption of religious organizations and religious entities

controlled by religious organizations is very broad, encompassing a wide

variety of situations. Religious organizations and entities controlled by

religious organizations have no obligations under the ADA. Even when a

religious organization carries out activities that would otherwise make it

a public accommodation, the religious organization is exempt from ADA

coverage. Thus, if a church itself operates a day care center, a nursing

home, a private school, or a diocesan school system, the operations of the

center, home, school, or schools would not be subject to the requirements

of the ADA or this part. The religious entity would not lose its exemption

merely because the services provided were open to the general public. The

test is whether the church or other religious organization operates the

public accommodation, not which individuals receive the public

accommodation's services.

Religious entities that are controlled by religious organizations are

also exempt from the ADA's requirements. Many religious organizations in

the United States use lay boards and other secular or corporate mechanisms

to operate schools and an array of social services. The use of a lay board

or other mechanism does not itself remove the ADA's religious exemption.

Thus, a parochial school, having religious doctrine in its curriculum and

sponsored by a religious order, could be exempt either as a religious

organization or as an entity controlled by a religious organization, even

if it has a lay board. The test remains a factual one -- whether the church

or other religious organization controls the operations of the school or of

the service or whether the school or service is itself a religious

organization.

Although a religious organization or a religious entity that is

controlled by a religious organization has no obligations under the rule,

a public accommodation that is not itself a religious organization, but that

operates a place of public accommodation in leased space on the property of

a religious entity, which is not a place of worship, is subject to the

rule's requirements if it is not under control of a religious organization.

When a church rents meeting space, which is not a place of worship, to a

local community group or to a private, independent day care center, the ADA

applies to the activities of the local community group and day care center

if a lease exists and consideration is paid.

"Service animal." The term "service animal" encompasses any guide dog,

signal dog, or other animal individually trained to provide assistance to

an individual with a disability. The term is used in 36.302(c), which

requires public accommodations generally to modify policies, practices, and

procedures to accommodate the use of service animals in places of public

accommodation.

 

"Specified public transportation." The definition of "specified public

transportation" is identical to the statutory definition in section 301(10)

of the ADA. The term means transportation by bus, rail, or any other

conveyance (other than by aircraft) that provides the general public with

general or special service (including charter service) on a regular and

continuing basis. It is used in category (7) of the definition of "place

of public accommodation," which includes stations used for specified public

transportation.

The effect of this definition, which excludes transportation by

aircraft, is that it excludes privately operated airports from coverage as

places of public accommodation. However, places of public accommodation

located within airports would be covered by this part. Airports that are

operated by public entities are covered by title II of the ADA and, if they

are operated as part of a program receiving Federal financial assistance,

by section 504 of the Rehabilitation Act. Privately operated airports are

similarly covered by section 504 if they are operated as part of a program

receiving Federal financial assistance. The operations of any portion of

any airport that are under the control of an air carrier are covered by the

Air Carrier Access Act. In addition, airports are covered as commercial

facilities under this rule.

"State." The definition of "State" is identical to the statutory

definition in section 3(3) of the ADA. The term is used in the definitions

of "commerce" and "public entity" in 36.104.

"Undue burden." The definition of "undue burden" is analogous to the

statutory definition of "undue hardship" in employment under section 101(10)

of the ADA. The term undue burden means "significant difficulty or expense"

and serves as a limitation on the obligation to provide auxiliary aids and

services under 36.303 and 36.309(b)(3) and (c)(3). Further discussion of

the meaning and application of the term undue burden may be found in the

preamble discussion of 36.303.

The definition lists factors considered in determining whether

provision of an auxiliary aid or service in any particular circumstance

would result in an undue burden. The factors to be considered in

determining whether an action would result in an undue burden are identical

to those to be considered in determining whether an action is readily

achievable. However, "readily achievable" is a lower standard than "undue

burden" in that it requires a lower level of effort on the part of the

public accommodation (see Education and Labor report at 109).

Further analysis of the factors to be considered in determining undue

burden may be found in the preamble discussion of the definition of the term

"readily achievable."

Subpart B -- General Requirements

Subpart B -- General Requirements

Subpart B includes general prohibitions restricting a public

accommodation from discriminating against people with disabilities by

denying them the opportunity to benefit from goods or services, by giving

them unequal goods or services, or by giving them different or separate

goods or services. These general prohibitions are patterned after the

basic, general prohibitions that exist in other civil rights laws that

prohibit discrimination on the basis of race, sex, color, religion, or

national origin.

 

36.201 General.

(a) Prohibition of discrimination. No individual shall be

discriminated against on the basis of disability in the full and equal

enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation by any private entity

who owns, leases (or leases to), or operates a place of public

accommodation.

(b) Landlord and tenant responsibilities. Both the landlord who owns

the building that houses a place of public accommodation and the tenant who

owns or operates the place of public accommodation are public accommodations

subject to the requirements of this part. As between the parties,

allocation of responsibility for complying with the obligations of this part

may be determined by lease or other contract.

Section 36.20l General.

Section 36.201(a) contains the general rule that prohibits

discrimination on the basis of disability in the full and equal enjoyment

of goods, services, facilities, privileges, advantages, and accommodations

of any place of public accommodation.

Full and equal enjoyment means the right to participate and to have an

equal opportunity to obtain the same results as others to the extent

possible with such accommodations as may be required by the Act and these

regulations. It does not mean that an individual with a disability must

achieve an identical result or level of achievement as persons without a

disability. For example, an exercise class cannot exclude a person who uses

a wheelchair because he or she cannot do all of the exercises and derive the

same result from the class as persons without a disability.

Section 302(a) of the ADA states that the prohibition against

discrimination applies to "any person who owns, leases (or leases to), or

operates a place of public accommodation," and this language is reflected

in 36.20l(a). The coverage is quite extensive and would include sublessees,

management companies, and any other entity that owns, leases, leases to, or

operates a place of public accommodation, even if the operation is only for

a short time.

The first sentence of paragraph (b) of 36.201 reiterates the general

principle that both the landlord that owns the building that houses the

place of public accommodation, as well as the tenant that owns or operates

the place of public accommodation, are public accommodations subject to the

requirements of this part. Although the statutory language could be

interpreted as placing equal responsibility on all private entities, whether

lessor, lessee, or operator of a public accommodation, the committee reports

suggest that liability may be allocated. Section 36.201(b) of that section

of the proposed rule attempted to allocate liability in the regulation

itself. Paragraph (b)(2) of that section made a specific allocation of

liability for the obligation to take readily achievable measures to remove

barriers, and paragraph (b)(3) made a specific allocation for the obligation

to provide auxiliary aids.

Numerous commenters pointed out that these allocations would not apply

in all situations. Some asserted that paragraph (b)(2) of the proposed rule

only addressed the situation when a lease gave the tenant the right to make

alterations with permission of the landlord, but failed to address other

types of leases, e.g., those that are silent on the right to make

alterations, or those in which the landlord is not permitted to enter a

tenant's premises to make alterations. Several commenters noted that many

leases contain other clauses more relevant to the ADA than the alterations

clause. For example, many leases contain a "compliance clause," a clause

which allocates responsibility to a particular party for compliance with all

relevant Federal, State, and local laws. Many commenters pointed out

various types of relationships that were left unaddressed by the regulation,

e.g., sale and leaseback arrangements where the landlord is a financial

institution with no control or responsibility for the building; franchises;

subleases; and management companies which, at least in the hotel industry,

often have control over operations but are unable to make modifications to

the premises.

Some commenters raised specific questions as to how the barrier removal

allocation would work as a practical matter. Paragraph (b)(2) of the

proposed rule provided that the burden of making readily achievable

modifications within the tenant's place of public accommodation would shift

to the landlord when the modifications were not readily achievable for the

tenant or when the landlord denied a tenant's request for permission to make

such modifications. Commenters noted that the rule did not specify exactly

when the burden would actually shift from tenant to landlord and whether the

landlord would have to accept a tenant's word that a particular action is

not readily achievable. Others questioned if the tenant should be obligated

to use alternative methods of barrier removal before the burden shifts. In

light of the fact that readily achievable removal of barriers can include

such actions as moving of racks and displays, some commenters doubted the

appropriateness of requiring a landlord to become involved in day-to-day

operations of its tenants' businesses.

 

The Department received widely differing comments in response to the

preamble question asking whether landlord and tenant obligations should vary

depending on the length of time remaining on an existing lease. Many

suggested that tenants should have no responsibilities in "shorter leases,"

which commenters defined as ranging anywhere from 90 days to three years.

Other commenters pointed out that the time remaining on the lease should not

be a factor in the rule's allocation of responsibilities, but is relevant

in determining what is readily achievable for the tenant. The Department

agrees with this latter approach and will interpret the rule in that manner.

 

In recognition of the somewhat limited applicability of the allocation

scheme contained in the proposed rule, paragraphs (b)(2) and (b)(3) have

been deleted from the final rule. The Department has substituted instead

a statement that allocation of responsibility as between the parties for

taking readily achievable measures to remove barriers and to provide

auxiliary aids and services both in common areas and within places of public

accommodation may be determined by the lease or other contractual

relationships between the parties. The ADA was not intended to change

existing landlord/tenant responsibilities as set forth in the lease. By

deleting specific provisions from the rule, the Department gives full

recognition to this principle. As between the landlord and tenant, the

extent of responsibility for particular obligations may be, and in many

cases probably will be, determined by contract.

The suggested allocation of responsibilities contained in the proposed

rule may be used if appropriate in a particular situation. Thus, the

landlord would generally be held responsible for making readily achievable

changes and providing auxiliary aids and services in common areas and for

modifying policies, practices, or procedures applicable to all tenants, and

the tenant would generally be responsible for readily achievable changes,

provision of auxiliary aids, and modification of policies within its own

place of public accommodation.

Many commenters objected to the proposed rule's allocation of

responsibility for providing auxiliary aids and services solely to the

tenant, pointing out that this exclusive allocation may not be appropriate

in the case of larger public accommodations that operate their businesses

by renting space out to smaller public accommodations. For example, large

theaters often rent to smaller traveling companies and hospitals often rely

on independent contractors to provide childbirth classes. Groups

representing persons with disabilities objected to the proposed rule

because, in their view, it permitted the large theater or hospital to evade

ADA responsibilities by leasing to independent smaller entities. They

suggested that these types of public accommodations are not really landlords

because they are in the business of providing a service, rather than renting

space, as in the case of a shopping center or office building landlord.

These commenters believed that responsibility for providing auxiliary aids

should shift to the landlord, if the landlord relies on a smaller public

accommodation or independent contractor to provide services closely related

to those of the larger public accommodation, and if the needed auxiliary

aids prove to be an undue burden for the smaller public accommodation. The

final rule no longer lists specific allocations to specific parties but,

rather, leaves allocation of responsibilities to the lease negotiations.

Parties are, therefore, free to allocate the responsibility for auxiliary

aids.

Section 36.201(b)(4) of the proposed rule, which provided that alterations

by a tenant on its own premises do not trigger a path of travel obligation

on the landlord, has been moved to 36.403(d) of the final rule.

An entity that is not in and of itself a public accommodation, such as

a trade association or performing artist, may become a public accommodation

when it leases space for a conference or performance at a hotel, convention

center, or stadium. For an entity to become a public accommodation when it

is the lessee of space, however, the Department believes that consideration

in some form must be given. Thus, a Boy Scout troop that accepts donated

space does not become a public accommodation because the troop has not

"leased" space, as required by the ADA.

As a public accommodation, the trade association or performing artist

will be responsible for compliance with this part. Specific

responsibilities should be allocated by contract, but, generally, the lessee

should be responsible for providing auxiliary aids and services (which could

include interpreters, braille programs, etc.) for the participants in its

conference or performance as well as for assuring that displays are

accessible to individuals with disabilities.

Some commenters suggested that the rule should allocate

responsibilities for areas other than removal of barriers and auxiliary

aids. The final rule leaves allocation of all areas to the lease

negotiations. However, in general landlords should not be given

responsibility for policies a tenant applies in operating its business, if

such policies are solely those of the tenant. Thus, if a restaurant tenant

discriminates by refusing to seat a patron, it would be the tenant, and not

the landlord, who would be responsible, because the discriminatory policy

is imposed solely by the tenant and not by the landlord. If, however, a

tenant refuses to modify a "no pets" rule to allow service animals in its

restaurant because the landlord mandates such a rule, then both the landlord

and the tenant would be liable for violation of the ADA when a person with

a service dog is refused entrance. The Department wishes to emphasize,

however, that the parties are free to allocate responsibilities in any way

they choose.

Private clubs are also exempt from the ADA. However, consistent with

title II of the Civil Rights Act (42 U.S.C. 2000a(e),) a private club is

considered a public accommodation to the extent that "the facilities of such

establishment are made available to the customers or patrons" of a place of

public accommodation. Thus, if a private club runs a day care center that

is open exclusively to its own members, the club, like the church in the

example above, would have no responsibility for compliance with the ADA.

Nor would the day care center have any responsibilities because it is part

of the private club exempt from the ADA.

On the other hand, if the private club rents to a day care center that

is open to the public, then the private club would have the same obligations

as any other public accommodation that functions as a landlord with respect

to compliance with title III within the day care center. In such a

situation, both the private club that "leases to" a public accommodation and

the public accommodation lessee (the day care center) would be subject to

the ADA. This same principle would apply if the private club were to rent

to, for example, a bar association, which is not generally a public

accommodation but which, as explained above, becomes a public accommodation

when it leases space for a conference.

36.202 Activities.

(a) Denial of participation. A public accommodation shall not subject

an individual or class of individuals on the basis of a disability or

disabilities of such individual or class, directly, or through contractual,

licensing, or other arrangements, to a denial of the opportunity of the

individual or class to participate in or benefit from the goods, services,

facilities, privileges, advantages, or accommodations of a place of public

accommodation.

(b) Participation in unequal benefit. A public accommodation shall

not afford an individual or class of individuals, on the basis of a

disability or disabilities of such individual or class, directly, or through

contractual, licensing, or other arrangements, with the opportunity to

participate in or benefit from a good, service, facility, privilege,

advantage, or accommodation that is not equal to that afforded to other

individuals.

(c) Separate benefit. A public accommodation shall not provide an

individual or class of individuals, on the basis of a disability or

disabilities of such individual or class, directly, or through contractual,

licensing, or other arrangements with a good, service, facility, privilege,

advantage, or accommodation that is different or separate from that provided

to other individuals, unless such action is necessary to provide the

individual or class of individuals with a good, service, facility,

privilege, advantage, or accommodation, or other opportunity that is as

effective as that provided to others.

(d) Individual or class of individuals. For purposes of paragraphs

(a) through (c) of this section, the term "individual or class of

individuals" refers to the clients or customers of the public accommodation

that enters into the contractual, licensing, or other arrangement.

Section 36.202 Activities.

Section 36.202 sets out the general forms of discrimination prohibited

by title III of the ADA. These general prohibitions are further refined by

the specific prohibitions in subpart C. Section 36.213 makes clear that the

limitations on the ADA's requirements contained in subpart C, such as

"necessity" (36.301(a)) and "safety" (36.301(b)), are applicable to the

prohibitions in 36.202. Thus, it is unnecessary to add these limitations

to 36.202 as has been requested by some commenters. In addition, the

language of 36.202 very closely tracks the language of section 302(b)(1)(A)

of the Act, and that statutory provision does not expressly contain these

limitations.

Deny participation -- Section 36.202(a) provides that it is

discriminatory to deny a person with a disability the right to participate

in or benefit from the goods, services, facilities, privileges, advantages,

or accommodations of a place of public accommodation.

A public accommodation may not exclude persons with disabilities on the

basis of disability for reasons other than those specifically set forth in

this part. For example, a public accommodation cannot refuse to serve a

person with a disability because its insurance company conditions coverage

or rates on the absence of persons with disabilities. This is a frequent

basis of exclusion from a variety of community activities and is prohibited

by this part.

Unequal benefit -- Section 36.202(b) prohibits services or

accommodations that are not equal to those provided others. For example,

persons with disabilities must not be limited to certain performances at a

theater.

Separate benefit -- Section 36.202(c) permits different or separate

benefits or services only when necessary to provide persons with

disabilities opportunities as effective as those provided others. This

paragraph permitting separate benefits "when necessary" should be read

together with 36.203(a), which requires integration in "the most integrated

setting appropriate to the needs of the individual." The preamble to that

section provides further guidance on separate programs. Thus, this section

would not prohibit the designation of parking spaces for persons with

disabilities.

Each of the three paragraphs (a)-(c) prohibits discrimina- tion against

an individual or class of individuals "either directly or through

contractual, licensing, or other arrangements." The intent of the

contractual prohibitions of these paragraphs is to prohibit a public

accommodation from doing indirectly, through a contractual relationship,

what it may not do directly. Thus, the "individual or class of

individuals" referenced in the three paragraphs is intended to refer to the

clients and customers of the public accommodation that entered into a

contractual arrangement. It is not intended to encompass the clients or

customers of other entities. A public accommodation, therefore, is not

liable under this provision for discrimination that may be practiced by

those with whom it has a contractual relationship, when that discrimination

is not directed against its own clients or customers. For example, if an

amusement park contracts with a food service company to operate its

restaurants at the park, the amusement park is not responsible for other

operations of the food service company that do not involve clients or

customers of the amusement park. Section 36.202(d) makes this clear by

providing that the term "individual or class of individuals" refers to the

clients or customers of the public accommodation that enters into the

contractual, licensing, or other arrangement.

 

36.203 Integrated settings.

(a) General. A public accommodation shall afford goods, services,

facilities, privileges, advantages, and accommodations to an individual with

a disability in the most integrated setting appropriate to the needs of the

individual.

(b) Opportunity to participate. Notwithstanding the existence of

separate or different programs or activities provided in accordance with

this subpart, a public accommodation shall not deny an individual with a

disability an opportunity to participate in such programs or activities that

are not separate or different.

(c) Accommodations and services. (1) Nothing in this part shall be

construed to require an individual with a disability to accept an

accommodation, aid, service, opportunity, or benefit available under this

part that such individual chooses not to accept.

(2) Nothing in the Act or this part authorizes the representative or

guardian of an individual with a disability to decline food, water, medical

treatment, or medical services for that individual.

Section 36.203 Integrated settings.

Section 36.203 addresses the integration of persons with disabilities.

The ADA recognizes that the provision of goods and services in an integrated

manner is a fundamental tenet of nondiscrimination on the basis of

disability. Providing segregated accommodations and services relegates

persons with disabilities to the status of second-class citizens. For

example, it would be a violation of this provision to require persons with

mental disabilities to eat in the back room of a restaurant or to refuse to

allow a person with a disability the full use of a health spa because of

stereotypes about the person's ability to participate. Section 36.203(a)

states that a public accommodation shall afford goods, services, facilities,

privileges, advantages, and accommodations to an individual with a

disability in the most integrated setting appropriate to the needs of the

individual. Section 36.203(b) specifies that, notwithstanding the existence

of separate or different programs or activities provided in accordance with

this section, an individual with a disability shall not be denied the

opportunity to participate in such programs or activities that are not

separate or different. Section 306.203(c), which is derived from section

50l(d) of the Americans with Disabilities Act, states that nothing in this

part shall be construed to require an individual with a disability to accept

an accommodation, aid, service, opportunity, or benefit that he or she

chooses not to accept.

Taken together, these provisions are intended to prohibit exclusion and

segregation of individuals with disabilities and the denial of equal

opportunities enjoyed by others, based on, among other things, presumptions,

patronizing attitudes, fears, and stereotypes about individuals with

disabilities. Consistent with these standards, public accommodations are

required to make decisions based on facts applicable to individuals and not

on the basis of presumptions as to what a class of individuals with

disabilities can or cannot do.

Sections 36.203(b) and (c) make clear that individuals with

disabilities cannot be denied the opportunity to participate in programs

that are not separate or different. This is an important and overarching

principle of the Americans with Disabilities Act. Separate, special, or

different programs that are designed to provide a benefit to persons with

disabilities cannot be used to restrict the participation of persons with

disabilities in general, integrated activities.

For example, a person who is blind may wish to decline participating

in a special museum tour that allows persons to touch sculptures in an

exhibit and instead tour the exhibit at his or her own pace with the

museum's recorded tour. It is not the intent of this section to require the

person who is blind to avail himself or herself of the special tour.

Modified participation for persons with disabilities must be a choice, not

a requirement.

Further, it would not be a violation of this section for an

establishment to offer recreational programs specially designed for children

with mobility impairments in those limited circumstances. However, it would

be a violation of this section if the entity then excluded these children

from other recreational services made available to nondisabled children, or

required children with disabilities to attend only designated programs.

 

Many commenters asked that the Department clarify a public

accommodation's obligations within the integrated program when it offers a

separate program, but an individual with a disability chooses not to

participate in the separate program. It is impossible to make a blanket

statement as to what level of auxiliary aids or modifications are required

in the integrated program. Rather, each situation must be assessed

individually. Assuming the integrated program would be appropriate for a

particular individual, the extent to which that individual must be provided

with modifications will depend not only on what the individual needs but

also on the limitations set forth in subpart C. For example, it may

constitute an undue burden for a particular public accommodation, which

provides a full-time interpreter in its special guided tour for individuals

with hearing impairments, to hire an additional interpreter for those

individuals who choose to attend the integrated program. The Department

cannot identify categorically the level of assistance or aid required in the

integrated program.

The preamble to the proposed rule contained a statement that some

interpreted as encouraging the continuation of separate schools, sheltered

workshops, special recreational programs, and other similar programs. It

is important to emphasize that 36.202(c) only calls for separate programs

when such programs are "necessary" to provide as effective an opportunity

to individuals with disabilities as to other individuals. Likewise,

36.203(a) only permits separate programs when a more integrated setting

would not be "appropriate." Separate programs are permitted, then, in only

limited circumstances. The sentence at issue has been deleted from the

preamble because it was too broadly stated and had been erroneously

interpreted as Departmental encouragement of separate programs without

qualification.

The proposed rule's reference in 36.203(b) to separate programs or

activities provided in accordance with "this section" has been changed to

"this subpart" in recognition of the fact that separate programs or

activities may, in some limited circumstances, be permitted not only by

36.203(a) but also by 36.202(c).

In addition, some commenters suggested that the individual with the

disability is the only one who can decide whether a setting is "appropriate"

and what the "needs" are. Others suggested that only the public

accommodation can make these determinations. The regulation does not give

exclusive responsibility to either party. Rather, the determinations are

to be made based on an objective view, presumably one which would take into

account views of both parties.

Some commenters expressed concern that 36.203(c), which states that

nothing in the rule requires an individual with a disability to accept

special accommodations and services provided under the ADA, could be

interpreted to allow guardians of infants or older people with disabilities

to refuse medical treatment for their wards. Section 36.203(c) has been

revised to make it clear that paragraph (c) is inapplicable to the concern

of the commenters. A new paragraph (c)(2) has been added stating that

nothing in the regulation authorizes the representative or guardian of an

individual with a disability to decline food, water, medical treatment, or

medical services for that individual. New paragraph (c) clarifies that

neither the ADA nor the regulation alters current Federal law ensuring the

rights of incompetent individuals with disabilities to receive food, water,

and medical treatment. See, e.g., Child Abuse Amendments of 1984 (42 U.S.C.

5106a(b)(10), 5106g(10)); Rehabilitation Act of 1973, as amended (29 U.S.C

794); Developmentally Disabled Assistance and Bill of Rights Act (42 U.S.C.

6042).

Sections 36.203(c)(1) and (2) are based on section 501(d) of the ADA.

Section 501(d) was designed to clarify that nothing in the ADA requires

individuals with disabilities to accept special accommodations and services

for individuals with disabilities that may segregate them:

The Committee added this section [501(d)] to clarify that nothing in

the ADA is intended to permit discriminatory treatment on the basis of

disability, even when such treatment is rendered under the guise of

providing an accommodation, service, aid or benefit to the individual with

disability. For example, a blind individual may choose not to avail himself

or herself of the right to go to the front of a line, even if a particular

public accommodation has chosen to offer such a modification of a policy for

blind individuals. Or, a blind individual may choose to decline to

participate in a special museum tour that allows persons to touch sculptures

in an exhibit and instead tour the exhibits at his or her own pace with the

museum's recorded tour.

(Judiciary report at 71-72.) The Act is not to be construed to mean that

an individual with disabilities must accept special accommodations and

services for individuals with disabilities when that individual chooses to

participate in the regular services already offered. Because medical

treatment, including treatment for particular conditions, is not a special

accommodation or service for individuals with disabilities under section

501(d), neither the Act nor this part provides affirmative authority to

suspend such treatment. Section 501(d) is intended to clarify that the Act

is not designed to foster discrimination through mandatory acceptance of

special services when other alternatives are provided; this concern does not

reach to the provision of medical treatment for the disabling condition

itself.

Section 36.213 makes clear that the limitations contained in subpart

C are to be read into subpart B. Thus, the integration requirement is

subject to the various defenses contained in subpart C, such as safety, if

eligibility criteria are at issue (36.30l(b)), or fundamental alteration and

undue burden, if the concern is provision of auxiliary aids (36.303(a)).

36.204 Administrative methods.

A public accommodation shall not, directly or through contractual or

other arrangements, utilize standards or criteria or methods of

administration that have the effect of discrimina-ting on the basis of

disability, or that perpetuate the discrimination of others who are subject

to common administrative control.

Section 36.204 Administrative methods.

Section 36.204 specifies that an individual or entity shall not,

directly, or through contractual or other arrangements, utilize standards

or criteria or methods of administration that have the effect of

discriminating on the basis of disability or that perpetuate the

discrimination of others who are subject to common administrative control.

The preamble discussion of 36.301 addresses eligibility criteria in detail.

Section 36.204 is derived from section 302(b)(1)(D) of the Americans

with Disabilities Act, and it uses the same language used in the employment

section of the ADA (section 102(b)(3)). Both sections incorporate a

disparate impact standard to ensure the effectiveness of the legislative

mandate to end discrimination. This standard is consistent with the

interpretation of section 504 by the U.S. Supreme Court in Alexander v.

Choate, 469 U.S. 287 (1985). The Court in Choate explained that members of

Congress made numerous statements during passage of section 504 regarding

eliminating architectural barriers, providing access to transportation, and

eliminating discriminatory effects of job qualification procedures. The

Court then noted: "These statements would ring hollow if the resulting

legislation could not rectify the harms resulting from action that

discriminated by effect as well as by design." Id at 297 (footnote

omitted).

Of course, 36.204 is subject to the various limitations contained in

subpart C including, for example, necessity (36.301(a)), safety (36.301(b)),

fundamental alteration (36.302(a)), readily achievable (36.304(a)), and

undue burden (36.303(a)).

 

36.205 Association.

A public accommodation shall not exclude or otherwise deny equal goods,

services, facilities, privileges, advantages, accommodations, or other

opportunities to an individual or entity because of the known disability of

an individual with whom the individual or entity is known to have a

relationship or association.

Section 36.205 Association.

Section 36.205 implements section 302(b)(1)(E) of the Act, which

provides that a public accommodation shall not exclude or otherwise deny

equal goods, services, facilities, privileges, advantages, accommodations,

or other opportunities to an individual or entity because of the known

disability of an individual with whom the individual or entity is known to

have a relationship or association. This section is unchanged from the

proposed rule.

The individuals covered under this section include any individuals who

are discriminated against because of their known association with an

individual with a disability. For example, it would be a violation of this

part for a day care center to refuse admission to a child because his or her

brother has HIV disease.

This protection is not limited to those who have a familial

relationship with the individual who has a disability. If a place of public

accommodation refuses admission to a person with cerebral palsy and his or

her companions, the companions have an independent right of action under the

ADA and this section.

During the legislative process, the term "entity" was added to section

302(b)(l)(E) to clarify that the scope of the provision is intended to

encompass not only persons who have a known association with a person with

a disability, but also entities that provide services to or are otherwise

associated with such individuals. This provision was intended to ensure

that entities such as health care providers, employees of social service

agencies, and others who provide professional services to persons with

disabilities are not subjected to discrimination because of their

professional association with persons with disabilities. For example, it

would be a violation of this section to terminate the lease of a entity

operating an independent living center for persons with disabilities, or to

seek to evict a health care provider because that individual or entity

provides services to persons with mental impairments.

 

36.206 Retaliation or coercion.

(a) No private or public entity shall discriminate against any

individual because that individual has opposed any act or practice made

unlawful by this part, or because that individual made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or

hearing under the Act or this part.

(b) No private or public entity shall coerce, intimidate, threaten,

or interfere with any individual in the exercise or enjoyment of, or on

account of his or her having exercised or enjoyed, or on account of his or

her having aided or encouraged any other individual in the exercise or

enjoyment of, any right granted or protected by the Act or this part.

(c) Illustrations of conduct prohibited by this section include, but

are not limited to:

(1) Coercing an individual to deny or limit the benefits, services,

or advantages to which he or she is entitled under the Act or this part;

(2) Threatening, intimidating, or interfering with an individual with

a disability who is seeking to obtain or use the goods, services,

facilities, privileges, advantages, or accommodations of a public

accommodation;

(3) Intimidating or threatening any person because that person is

assisting or encouraging an individual or group entitled to claim the rights

granted or protected by the Act or this part to exercise those rights; or

(4) Retaliating against any person because that person has

participated in any investigation or action to enforce the Act or this part.

 

Section 36.206 Retaliation or coercion.

Section 36.206 implements section 503 of the ADA, which prohibits

retaliation against any individual who exercises his or her rights under the

Act. This section is unchanged from the proposed rule. Paragraph (a) of

36.206 provides that no private entity or public entity shall discriminate

against any individual because that individual has exercised his or her

right to oppose any act or practice made unlawful by this part, or because

that individual made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under the Act or this

part.

Paragraph (b) provides that no private entity or public entity shall

coerce, intimidate, threaten, or interfere with any individual in the

exercise of his or her rights under this part or because that individual

aided or encouraged any other individual in the exercise or enjoyment of any

right granted or protected by the Act or this part.

Illustrations of practices prohibited by this section are contained in

paragraph (c), which is modeled on a similar provision in the regulations

issued by the Department of Housing and Urban Development to implement the

Fair Housing Act (see 24 CFR l00.400(c)(l)). Prohibited actions may

include:

1) Coercing an individual to deny or limit the benefits, services, or

advantages to which he or she is entitled under the Act or this part;

2) Threatening, intimidating, or interfering with an individual who is

seeking to obtain or use the goods, services, facilities, privileges,

advantages, or accommodations of a public accommodation;

3) Intimidating or threatening any person because that person is assisting

or encouraging an individual or group entitled to claim the rights granted

or protected by the Act or this part to exercise those rights; or

4) Retaliating against any person because that person has participated in

any investigation or action to enforce the Act or this part.

This section protects not only individuals who allege a violation of

the Act or this part, but also any individuals who support or assist them.

This section applies to all investigations or proceedings initiated under

the Act or this part without regard to the ultimate resolution of the

underlying allegations. Because this section prohibits any act of

retaliation or coercion in response to an individual's effort to exercise

rights established by the Act and this part (or to support the efforts of

another individual), the section applies not only to public accommodations

that are otherwise subject to this part, but also to individuals other than

public accommodations or to public entities. For example, it would be a

violation of the Act and this part for a private individual, e.g., a

restaurant customer, to harass or intimidate an individual with a disability

in an effort to prevent that individual from patronizing the restaurant.

It would, likewise, be a violation of the Act and this part for a public

entity to take adverse action against an employee who appeared as a witness

on behalf of an indvidual who sought to enforce the Act.

36.207 Places of public accommodation located in private residences.

(a) When a place of public accommodation is located in a private

residence, the portion of the residence used exclusively as a residence is

not covered by this part, but that portion used exclusively in the operation

of the place of public accommodation or that portion used both for the place

of public accommodation and for residential purposes is covered by this

part.

(b) The portion of the residence covered under paragraph (a) of this

section extends to those elements used to enter the place of public

accommodation, including the homeowner's front sidewalk, if any, the door

or entryway, and hallways; and those portions of the residence, interior or

exterior, available to or used by customers or clients, including restrooms.

 

Section 36.207 Places of public accommodation located in private

residences.

A private home used exclusively as a residence is not covered by title

III because it is neither a "commercial facility" nor a "place of public

accommodation." In some situations, however, a private home is not used

exclusively as a residence, but houses a place of public accommodation in

all or part of a home (e.g., an accountant who meets with his or her clients

at his or her residence). Section 36.207(a) provides that those portions

of the private residence used in the operation of the place of public

accommodation are covered by this part.

For instance, a home or a portion of a home may be used as a day care

center during the day and a residence at night. If all parts of the house

are used for the day care center, then the entire residence is a place of

public accommodation because no part of the house is used exclusively as a

residence. If an accountant uses one room in the house solely as his or her

professional office, then a portion of the house is used exclusively as a

place of public accommodation and a portion is used exclusively as a

residence. Section 36.207 provides that when a portion of a residence is

used exclusively as a residence, that portion is not covered by this part.

Thus, the portions of the accountant's house, other than the professional

office and areas and spaces leading to it, are not covered by this part.

All of the requirements of this rule apply to the covered portions,

including requirements to make reasonable modifications in policies,

eliminate discriminatory eligibility criteria, take readily achievable

measures to remove barriers or provide readily achievable alternatives

(e.g., making house calls), provide auxiliary aids and services and

undertake only accessible new construction and alterations.

Paragraph (b) was added in response to comments that sought

clarification on the extent of coverage of the private residence used as the

place of public accommodation. The final rule makes clear that the place

of accommodation extends to all areas of the home used by clients and

customers of the place of public accommodation. Thus, the ADA would apply

to any door or entry way, hallways, a restroom, if used by customers and

clients; and any other portion of the residence, interior or exterior, used

by customers or clients of the public accommodation. This interpretation

is simply an application of the general rule for all public accommodations,

which extends statutory requirements to all portions of the facility used

by customers and clients, including, if applicable, restrooms, hallways, and

approaches to the public accommodation. As with other public

accommodations, barriers at the entrance and on the sidewalk leading up to

the public accommodation, if the sidewalk is under the control of the public

accommodation, must be removed if doing so is readily achievable.

The Department recognizes that many businesses that operate out of

personal residences are quite small, often employing only the homeowner and

having limited total revenues. In these circumstances the effect of ADA

coverage would likely be quite minimal. For example, because the obligation

to remove existing architectural barriers is limited to those that are

easily accomplishable without much difficulty or expense (see 36.304), the

range of required actions would be quite modest. It might not be readily

achievable for such a place of public accommodation to remove any existing

barriers. If it is not readily achievable to remove existing architectural

barriers, a public accommodation located in a private residence may meet its

obligations under the Act and this part by providing its goods or services

to clients or customers with disabilities through the use of alternative

measures, including delivery of goods or services in the home of the

customer or client, to the extent that such alternative measures are readily

achievable (see 36.305).

 

Some commenters asked for clarification as to how the new construction

and alteration standards of subpart D will apply to residences. The new

construction standards only apply to the extent that the residence or

portion of the residence was designed or intended for use as a public

accommodation. Thus, for example, if a portion of a home is designed or

constructed for use exclusively as a lawyer's office or for use both as a

lawyer's office and for residential purposes, then it must be designed in

accordance with the new construction standards in the appendix. Likewise,

if a homeowner is undertaking alterations to convert all or part of his

residence to a place of public accommodation, that work must be done in

compliance with the alterations standards in the appendix.

The preamble to the proposed rule addressed the applicable requirements

when a commercial facility is located in a private residence. That

situation is now addressed in 36.401(b) of subpart D.

36.208 Direct threat.

(a) This part does not require a public accommodation to permit an

individual to participate in or benefit from the goods, services,

facilities, privileges, advantages and accommodations of that public

accommodation when that individual poses a direct threat to the health or

safety of others.

(b) Direct threat means a significant risk to the health or safety of

others that cannot be eliminated by a modification of policies, practices,

or procedures, or by the provision of auxiliary aids or services.

(c) In determining whether an individual poses a direct threat to the

health or safety of others, a public accommodation must make an

individualized assessment, based on reasonable judgment that relies on

current medical knowledge or on the best available objective evidence, to

ascertain: the nature, duration, and severity of the risk; the probability

that the potential injury will actually occur; and whether reasonable

modifications of policies, practices, or procedures will mitigate the risk.

Section 36.208 Direct threat.

Section 36.208(a) implements section 302(b)(3) of the Act by providing

that this part does not require a public accommodation to permit an

individual to participate in or benefit from the goods, services,

facilities, privileges, advantages and accommodations of the public

accommodation, if that individual poses a direct threat to the health or

safety of others. This section is unchanged from the proposed rule.

The Department received a significant number of comments on this

section. Commenters representing individuals with disabilities generally

supported this provision, but suggested revisions to further limit its

application. Commenters representing public accommodations generally

endorsed modifications that would permit a public accommodation to exercise

its own judgment in determining whether an individual poses a direct threat.

The inclusion of this provision is not intended to imply that persons

with disabilities pose risks to others. It is intended to address concerns

that may arise in this area. It establishes a strict standard that must be

met before denying service to an individual with a disability or excluding

that individual from participation.

Paragraph (b) of this section explains that a "direct threat" is a

significant risk to the health or safety of others that cannot be eliminated

by a modification of policies, practices, or procedures, or by the provision

of auxiliary aids and services. This paragraph codifies the standard first

applied by the Supreme Court in School Board of Nassau County v. Arline, 480

U.S. 273 (1987), in which the Court held that an individual with a

contagious disease may be an "individual with handicaps" under section 504

of the Rehabilitation Act. In Arline, the Supreme Court recognized that

there is a need to balance the interests of people with disabilities against

legitimate concerns for public safety. Although persons with disabilities

are generally entitled to the protection of this part, a person who poses

a significant risk to others may be excluded if reasonable modifications to

the public accommodation's policies, practices, or procedures will not

eliminate that risk. The determination that a person poses a direct threat

to the health or safety of others may not be based on generalizations or

stereotypes about the effects of a particular disability; it must be based

on an individual assessment that conforms to the requirements of paragraph

(c) of this section.

 

Paragraph (c) establishes the test to use in determining whether an

individual poses a direct threat to the health or safety of others. A

public accommodation is required to make an individualized assessment, based

on reasonable judgment that relies on current medical evidence or on the

best available objective evidence, to determine: the nature, duration, and

severity of the risk; the probability that the potential injury will

actually occur; and whether reasonable modifications of policies, practices,

or procedures will mitigate the risk. This is the test established by the

Supreme Court in Arline. Such an inquiry is essential if the law is to

achieve its goal of protecting disabled individuals from discrimination

based on prejudice, stereotypes, or unfounded fear, while giving appropriate

weight to legitimate concerns, such as the need to avoid exposing others to

significant health and safety risks. Making this assessment will not

usually require the services of a physician. Sources for medical knowledge

include guidance from public health authorities, such as the U.S. Public

Health Service, the Centers for Disease Control, and the National Institutes

of Health, including the National Institute of Mental Health.

Many of the commenters sought clarification of the inquiry requirement.

Some suggested that public accommodations should be prohibited from making

any inquiries to determine if an individual with a disability would pose a

direct threat to other persons. The Department believes that to preclude

all such inquiries would be inappropriate. Under 36.301 of this part, a

public accommodation is permitted to establish eligibility criteria

necessary for the safe operation of the place of public accommodation.

Implicit in that right is the right to ask if an individual meets the

criteria. However, any eligibility or safety standard established by a

public accommodation must be based on actual risk, not on speculation or

stereotypes; it must be applied to all clients or customers of the place of

public accommodation; and inquiries must be limited to matters necessary to

the application of the standard.

Some commenters suggested that the test established in the Arline

decision, which was developed in the context of an employment case, is too

stringent to apply in a public accommodations context where interaction

between the public accommodation and its client or customer is often very

brief. One suggested alternative was to permit public accommodations to

exercise "good faith" judgment in determining whether an individual poses

a direct threat, particularly when a public accommodation is dealing with

a client or customer engaged in disorderly or disruptive behavior.

The Department believes that the ADA clearly requires that any

determination to exclude an individual from participation must be based on

an objective standard. A public accommodation may establish neutral

eligibility criteria as a condition of receiving its goods or services. As

long as these criteria are necessary for the safe provision of the public

accommodation's goods and services and applied neutrally to all clients or

customers, regardless of whether they are individuals with disabilities, a

person who is unable to meet the criteria may be excluded from participation

without inquiry into the underlying reason for the inability to comply. In

places of public accommodation such as restaurants, theaters, or hotels,

where the contact between the public accommodation and its clients is

transitory, the uniform application of an eligibility standard precluding

violent or disruptive behavior by any client or customer should be

sufficient to enable a public accommodation to conduct its business in an

orderly manner.

Some other commenters asked for clarification of the application of

this provision to persons, particularly children, who have short-term,

contagious illnesses, such as fevers, influenza, or the common cold. It is

common practice in schools and day care settings to exclude persons with

such illnesses until the symptoms subside. The Department believes that

these commenters misunderstand the scope of this rule. The ADA only

prohibits discrimination against an individual with a disability. Under the

ADA and this part, a "disability" is defined as a physical or mental

impairment that substantially limits one or more major life activities.

Common, short-term illnesses that predictably resolve themselves within a

matter of days do not "substantially limit" a major life activity;

therefore, it is not a violation of this part to exclude an individual from

receiving the services of a public accommodation because of such transitory

illness. However, this part does apply to persons who have long-term

illnesses. Any determination with respect to a person who has a chronic or

long-term illness must be made in compliance with the requirements of this

section.

 

36.209 Illegal use of drugs.

(a) General. (1) Except as provided in paragraph (b) of this section,

this part does not prohibit discrimination against an individual based on

that individual's current illegal use of drugs.

(2) A public accommodation shall not discriminate on the basis of

illegal use of drugs against an individual who is not engaging in current

illegal use of drugs and who--

(i) Has successfully completed a supervised drug rehabilitation

program or has otherwise been rehabilitated successfully;

(ii) Is participating in a supervised rehabilitation

program; or

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

(b) Health and drug rehabilitation services. (1) A public

accommodation shall not deny health services, or services provided in

connection with drug rehabilitation, to an individual on the basis of that

individual's current illegal use of drugs, if the individual is otherwise

entitled to such services.

(2) A drug rehabilitation or treatment program may deny participation

to individuals who engage in illegal use of drugs while they are in the

program.

(c) Drug testing. (1) This part does not prohibit a public

accommodation from adopting or administering reasonable policies or

procedures, including but not limited to drug testing, designed to ensure

that an individual who formerly engaged in the illegal use of drugs is not

now engaging in current illegal use of drugs.

(2) Nothing in this paragraph (c) shall be construed to encourage,

prohibit, restrict, or authorize the conducting of testing for the illegal

use of drugs.

Section 36.209 Illegal use of drugs.

Section 36.209 effectuates section 510 of the ADA, which clarifies the

Act's application to people who use drugs illegally. Paragraph (a) provides

that this part does not prohibit discrimination based on an individual's

current illegal use of drugs.

The Act and the regulation distinguish between illegal use of drugs and

the legal use of substances, whether or not those substances are "controlled

substances," as defined in the Controlled Substances Act (21 U.S.C. 812).

Some controlled substances are prescription drugs that have legitimate

medical uses. Section 36.209 does not affect use of controlled substances

pursuant to a valid prescription, under supervision by a licensed health

care professional, or other use that is authorized by the Controlled

Substances Act or any other provision of Federal law. It does apply to

illegal use of those substances, as well as to illegal use of controlled

substances that are not prescription drugs. The key question is whether the

individual's use of the substance is illegal, not whether the substance has

recognized legal uses. Alcohol is not a controlled substance, so use of

alcohol is not addressed by 36.209. Alcoholics are individuals with

disabilities, subject to the protections of the statute.

A distinction is also made between the use of a substance and the

status of being addicted to that substance. Addiction is a disability, and

addicts are individuals with disabilities protected by the Act. The

protection, however, does not extend to actions based on the illegal use of

the substance. In other words, an addict cannot use the fact of his or her

addiction as a defense to an action based on illegal use of drugs. This

distinction is not artificial. Congress intended to deny protection to

people who engage in the illegal use of drugs, whether or not they are

addicted, but to provide protection to addicts so long as they are not

currently using drugs.

A third distinction is the difficult one between current use and former

use. The definition of "current illegal use of drugs" in 36.104, which is

based on the report of the Conference Committee, H.R. Conf. Rep. No. 596,

101st Cong., 2d Sess. 64 (1990), is "illegal use of drugs that occurred

recently enough to justify a reasonable belief that a person's drug use is

current or that continuing use is a real and ongoing problem."

Paragraph (a)(2)(i) specifies that an individual who has successfully

completed a supervised drug rehabilitation program or has otherwise been

rehabilitated successfully and who is not engaging in current illegal use

of drugs is protected. Paragraph (a)(2)(ii) clarifies that an individual

who is currently participating in a supervised rehabilitation program and

is not engaging in current illegal use of drugs is protected. Paragraph

(a)(2)(iii) provides that a person who is erroneously regarded as engaging

in current illegal use of drugs, but who is not engaging in such use, is

protected.

Paragraph (b) provides a limited exception to the exclusion of current

illegal users of drugs from the protections of the Act. It prohibits denial

of health services, or services provided in connection with drug

rehabilitation, to an individual on the basis of current illegal use of

drugs, if the individual is otherwise entitled to such services. As

explained further in the discussion of 36.302, a health care facility that

specializes in a particular type of treatment, such as care of burn victims,

is not required to provide drug rehabilitation services, but it cannot

refuse to treat an individual's burns on the grounds that the individual is

illegally using drugs.

A commenter argued that health care providers should be permitted to

use their medical judgment to postpone discretionary medical treatment of

individuals under the influence of alcohol or drugs. The regulation permits

a medical practitioner to take into account an individual's use of drugs in

determining appropriate medical treatment. Section 36.209 provides that the

prohibitions on discrimination in this part do not apply when the public

accommodation acts on the basis of current illegal use of drugs. Although

those prohibitions do apply under paragraph (b), the limitations established

under this part also apply. Thus, under 36.208, a health care provider or

other public accommodation covered under 36.209(b) may exclude an individual

whose current illegal use of drugs poses a direct threat to the health or

safety of others, and, under 36.301, a public accommodation may impose or

apply eligibility criteria that are necessary for the provision of the

services being offered, and may impose legitimate safety requirements that

are necessary for safe operation. These same limitations also apply to

individuals with disabilities who use alcohol or prescription drugs. The

Department believes that these provisions address this commenter's concerns.

 

Other commenters pointed out that abstention from the use of drugs is

an essential condition for participation in some drug rehabilitation

programs, and may be a necessary requirement in inpatient or residential

settings. The Department believes that this comment is well-founded.

Congress clearly did not intend to exclude from drug treatment programs the

very individuals who need such programs because of their use of drugs. In

such a situation, however, once an individual has been admitted to a

program, abstention may be a necessary and appropriate condition to

continued participation. The final rule therefore provides that a drug

rehabilitation or treatment program may deny participation to individuals

who use drugs while they are in the program.

Paragraph (c) expresses Congress' intention that the Act be neutral

with respect to testing for illegal use of drugs. This paragraph implements

the provision in section 510(b) of the Act that allows entities "to adopt

or administer reasonable policies or procedures, including but not limited

to drug testing," that ensure an individual who is participating in a

supervised rehabilitation program, or who has completed such a program or

otherwise been rehabilitated successfully, is no longer engaging in the

illegal use of drugs. Paragraph (c) is not to be construed to encourage,

prohibit, restrict, or authorize the conducting of testing for the illegal

use of drugs.

Paragraph (c) of 36.209 clarifies that it is not a violation of this

part to adopt or administer reasonable policies or procedures to ensure that

an individual who formerly engaged in the illegal use of drugs is not

currently engaging in illegal use of drugs. Any such policies or procedures

must, of course, be reasonable, and must be designed to identify accurately

the illegal use of drugs. This paragraph does not authorize inquiries,

tests, or other procedures that would disclose use of substances that are

not controlled substances or are taken under supervision by a licensed

health care professional, or other uses authorized by the Controlled

Substances Act or other provisions of Federal law, because such uses are not

included in the definition of "illegal use of drugs."

One commenter argued that the rule should permit testing for lawful use

of prescription drugs, but most favored the explanation that tests must be

limited to unlawful use in order to avoid revealing the use of prescription

medicine used to treat disabilities. Tests revealing legal use of

prescription drugs might violate the prohibition in 36.301 of attempts to

unnecessarily identify the existence of a disability.

 

36.210 Smoking.

This part does not preclude the prohibition of, or the imposition of

restrictions on, smoking in places of public accommodation.

Section 36.210 Smoking.

Section 36.210 restates the clarification in section 501(b) of the Act

that the Act does not preclude the prohibition of, or imposition of

restrictions on, smoking. Some commenters argued that 36.210 does not go

far enough, and that the regulation should prohibit smoking in all places

of public accommodation. The reference to smoking in section 501 merely

clarifies that the Act does not require public accommodations to accommodate

smokers by permitting them to smoke in places of public accommodations.

 

36.211 Maintenance of accessible features.

(a) A public accommodation shall maintain in operable working

condition those features of facilities and equipment that are required to

be readily accessible to and usable by persons with disabilities by the Act

or this part.

(b) This section does not prohibit isolated or temporary interruptions

in service or access due to maintenance or repairs.

 

Section 36.211 Maintenance of accessible features.

Section 36.211 provides that a public accommodation shall maintain in

operable working condition those features of facilities and equipment that

are required to be readily accessible to and usable by persons with

disabilities by the Act or this part. The Act requires that, to the maximum

extent feasible, facilities must be accessible to, and usable by,

individuals with disabilities. This section recognizes that it is not

sufficient to provide features such as accessible routes, elevators, or

ramps, if those features are not maintained in a manner that enables

individuals with disabilities to use them. Inoperable elevators, locked

accessible doors, or "accessible" routes that are obstructed by furniture,

filing cabinets, or potted plants are neither "accessible to" nor "usable

by" individuals with disabilities.

Some commenters objected that this section appeared to establish an

absolute requirement and suggested that language from the preamble be

included in the text of the regulation. It is, of course, impossible to

guarantee that mechanical devices will never fail to operate. Paragraph (b)

of the final regulation provides that this section does not prohibit

isolated or temporary interruptions in service or access due to maintenance

or repairs. This paragraph is intended to clarify that temporary

obstructions or isolated instances of mechanical failure would not be

considered violations of the Act or this part. However, allowing

obstructions or "out of service" equipment to persist beyond a reasonable

period of time would violate this part, as would repeated mechanical

failures due to improper or inadequate maintenance. Failure of the public

accommodation to ensure that accessible routes are properly maintained and

free of obstructions, or failure to arrange prompt repair of inoperable

elevators or other equipment intended to provide access, would also violate

this part.

Other commenters requested that this section be expanded to include

specific requirements for inspection and maintenance of equipment, for

training staff in the proper operation of equipment, and for maintenance of

specific items. The Department believes that this section properly

establishes the general requirement for maintaining access and that further,

more detailed requirements are not necessary.

 

36.212 Insurance.

(a) This part shall not be construed to prohibit or restrict --

(1) An insurer, hospital or medical service company, health

maintenance organization, or any agent, or entity that administers benefit

plans, or similar organizations from underwriting risks, classifying risks,

or administering such risks that are based on or not inconsistent with State

law; or

(2) A person or organization covered by this part from establishing,

sponsoring, observing or administering the terms of a bona fide benefit plan

that are based on underwriting risks, classifying risks, or administering

such risks that are based on or not inconsistent with State law; or

(3) A person or organization covered by this part from establishing,

sponsoring, observing or administering the terms of a bona fide benefit plan

that is not subject to State laws that regulate insurance.

(b) Paragraphs (a)(1), (2), and (3) of this section shall not be used

as a subterfuge to evade the purposes of the Act or this part.

(c) A public accommodation shall not refuse to serve an individual

with a disability because its insurance company conditions coverage or rates

on the absence of individuals with disabilities.

Section 36.212 Insurance.

The Department received numerous comments on proposed 36.212. Most

supported the proposed regulation but felt that it did not go far enough in

protecting individuals with disabilities and persons associated with them

from discrimination. Many commenters argued that language from the preamble

to the proposed regulation should be included in the text of the final

regulation. Other commenters argued that even that language was not strong

enough, and that more stringent standards should be established. Only a few

commenters argued that the Act does not apply to insurance underwriting

practices or the terms of insurance contracts. These commenters cited

language from the Senate committee report (S. Rep. No. 116, 101st Cong., 1st

Sess., at 84-86 (1989) [hereinafter "Senate report"]), indicating that

Congress did not intend to affect existing insurance practices.

The Department has decided to adopt the language of the proposed rule

without change. Sections 36.212(a) and (b) restate section 501(c) of the

Act, which provides that the Act shall not be construed to restrict certain

insurance practices on the part of insurance companies and employers, as

long as such practices are not used to evade the purposes of the Act.

Section 36.212(c) is a specific application of 36.202(a), which prohibits

denial of participation on the basis of disability. It provides that a

public accommodation may not refuse to serve an individual with a disability

because of limitations on coverage or rates in its insurance policies (see

Judiciary report at 56).

Many commenters supported the requirements of 36.212(c) in the proposed

rule because it addressed an important reason for denial of services by

public accommodations. One commenter argued that services could be denied

if the insurance coverage required exclusion of people whose disabilities

were reasonably related to the risks involved in that particular place of

public accommodation. Sections 36.208 and 36.301 establish criteria for

denial of participation on the basis of legitimate safety concerns. This

paragraph does not prohibit consideration of such concerns in insurance

policies, but provides that any exclusion on the basis of disability must

be based on the permissible criteria, rather than on the terms of the

insurance contract.

Language in the committee reports indicates that Congress intended to

reach insurance practices by prohibiting differential treatment of

individuals with disabilities in insurance offered by public accommodations

unless the differences are justified. "Under the ADA, a person with a

disability cannot be denied insurance or be subject to different terms or

conditions of insurance based on disability alone, if the disability does

not pose increased risks" (Senate report at 84; Education and Labor report

at 136). Section 501(c)(1) of the Act was intended to emphasize that

"insurers may continue to sell to and underwrite individuals applying for

life, health, or other insurance on an individually underwritten basis, or

to service such insurance products, so long as the standards used are based

on sound actuarial data and not on speculation" (Judiciary report at 70

(emphasis added); see also Senate report at 85; Education and Labor report

at 137).

 

The committee reports indicate that underwriting and classification of

risks must be "based on sound actuarial principles or be related to actual

or reasonably anticipated experience" (see, e.g., Judiciary report at 71).

Moreover, "while a plan which limits certain kinds of coverage based on

classification of risk would be allowed . . ., the plan may not refuse to

insure, or refuse to continue to insure, or limit the amount, extent, or

kind of coverage available to an individual, or charge a different rate for

the same coverage solely because of a physical or mental impairment, except

where the refusal, limitation, or rate differential is based on sound

actuarial principles or is related to actual or reasonably anticipated

experience" (Senate report at 85; Education and Labor report at 136-37;

Judiciary report at 71). The ADA, therefore, does not prohibit use of

legitimate actuarial considerations to justify differential treatment of

individuals with disabilities in insurance.

The committee reports provide some guidance on how nondiscrimination

principles in the disability rights area relate to insurance practices. For

example, a person who is blind may not be denied coverage based on blindness

independent of actuarial risk classification. With respect to group health

insurance coverage, an individual with a pre-existing condition may be

denied coverage for that condition for the period specified in the policy,

but cannot be denied coverage for illness or injuries unrelated to the

pre-existing condition. Also, a public accommodation may offer insurance

policies that limit coverage for certain procedures or treatments, but may

not entirely deny coverage to a person with a disability.

The Department requested comment on the extent to which data that would

establish statistically sound correlations are available. Numerous

commenters cited pervasive problems in the availability and cost of

insurance for individuals with disabilities and parents of children with

disabilities. No commenters cited specific data, or sources of data, to

support specific exclusionary practices. Several commenters reported that,

even when statistics are available, they are often outdated and do not

reflect current medical technology and treatment methods. Concern was

expressed that adequate efforts are not made to distinguish those

individuals who are high users of health care from individuals in the same

diagnostic groups who may be low users of health care. One insurer reported

that "hard data and actuarial statistics are not available to provide

precise numerical justifications for every underwriting determination," but

argued that decisions may be based on "logical principles generally accepted

by actuarial science and fully consistent with state insurance laws." The

commenter urged that the Department recognize the validity of information

other than statistical data as a basis for insurance determinations.

The most frequent comment was a recommendation that the final

regulation should require the insurance company to provide a copy of the

actuarial data on which its actions are based when requested by the

applicant. Such a requirement would be beyond anything contemplated by the

Act or by Congress and has therefore not been included in the Department's

final rule. Because the legislative history of the ADA clarifies that

different treatment of individuals with disabilities in insurance may be

justified by sound actuarial data, such actuarial data will be critical to

any potential litigation on this issue. This information would presumably

be obtainable in a court proceeding where the insurer's actuarial data was

the basis for different treatment of persons with disabilities. In

addition, under some State regulatory schemes, insurers may have to file

such actuarial information with the State regulatory agency and this

information may be obtainable at the State level.

A few commenters representing the insurance industry conceded that

underwriting practices in life and health insurance are clearly covered, but

argued that property and casualty insurance are not covered. The Department

sees no reason for this distinction. Although life and health insurance are

the areas where the regulation will have its greatest application, the Act

applies equally to unjustified discrimination in all types of insurance

provided by public accommodations. A number of commenters, for example,

reported difficulties in obtaining automobile insurance because of their

disabilities, despite their having good driving records.

36.213 Relationship of subpart B to subparts C and D of this part.

Subpart B of this part sets forth the general principles of

nondiscrimination applicable to all entities subject to this part. Subparts

C and D of this part provide guidance on the application of the statute to

specific situations. The specific provisions, including the limitations on

those provisions, control over the general provisions in circumstances where

both specific and general provisions apply.

36.214-36.300:

(Reserved)

Section 36.213 Relationship of subpart B to subparts C and D.

This section explains that subpart B sets forth the general principles

of nondiscrimination applicable to all entities subject to this regulation,

while subparts C and D provide guidance on the application of this part to

specific situations. The specific provisions in subparts C and D, including

the limitations on those provisions, control over the general provisions in

circumstances where both specific and general provisions apply. Resort to

the general provisions of subpart B is only appropriate where there are no

applicable specific rules of guidance in subparts C or D. This interaction

between the specific requirements and the general requirements operates with

regard to contractual obligations as well.

One illustration of this principle is its application to the obligation

of a public accommodation to provide access to services by removal of

architectural barriers or by alternatives to barrier removal. The general

requirement, established in subpart B by 36.203, is that a public

accommodation must provide its services to individuals with disabilities in

the most integrated setting appropriate. This general requirement would

appear to categorically prohibit "segregated" seating for persons in

wheelchairs. Section 36.304, however, only requires removal of

architectural barriers to the extent that removal is "readily achievable."

If providing access to all areas of a restaurant, for example, would not be

"readily achievable," a public accommodation may provide access to selected

areas only. Also, 36.305 provides that, where barrier removal is not

readily achievable, a public accommodation may use alternative, readily

achievable methods of making services available, such as curbside service

or home delivery. Thus, in this manner, the specific requirements of 36.304

and 36.305 control over the general requirement of 36.203.

 

Subpart C -- Specific Requirements

Subpart C -- Specific Requirements

In general, subpart C implements the "specific prohibitions" that

comprise section 302(b)(2) of the ADA. It also addresses the requirements

of section 309 of the ADA regarding examinations and courses.

 

36.301 Eligibility criteria.

(a) General. A public accommodation shall not impose or apply

eligibility criteria that screen out or tend to screen out an individual

with a disability or any class of individuals with disabilities from fully

and equally enjoying any goods, services, facilities, privileges,

advantages, or accommodations, unless such criteria can be shown to be

necessary for the provision of the goods, services, facilities, privileges,

advantages, or accommodations being offered.

(b) Safety. A public accommodation may impose legitimate safety

requirements that are necessary for safe operation. Safety requirements

must be based on actual risks and not on mere speculation, stereotypes, or

generalizations about individuals with disabilities.

(c) Charges. A public accommodation may not impose a surcharge on a

particular individual with a disability or any group of individuals with

disabilities to cover the costs of measures, such as the provision of

auxiliary aids, barrier removal, alternatives to barrier removal, and

reasonable modifications in policies, practices, or procedures, that are

required to provide that individual or group with the nondiscriminatory

treatment required by the Act or this part.

Section 36.301 Eligibility criteria.

Section 36.301 of the rule prohibits the imposition or application of

eligibility criteria that screen out or tend to screen out an individual

with a disability or any class of individuals with disabilities from fully

and equally enjoying any goods, services, facilities, privileges,

advantages, and accommodations, unless such criteria can be shown to be

necessary for the provision of the goods, services, facilities, privileges,

advantages, or accommodations being offered. This prohibition is based on

section 302(b)(2)(A)(i) of the ADA.

It would violate this section to establish exclusive or segregative

eligibility criteria that would bar, for example, all persons who are deaf

from playing on a golf course or all individuals with cerebral palsy from

attending a movie theater, or limit the seating of individuals with Down's

syndrome to only particular areas of a restaurant. The wishes, tastes, or

preferences of other customers may not be asserted to justify criteria that

would exclude or segregate individuals with disabilities.

Section 36.301 also prohibits attempts by a public accommodation to

unnecessarily identify the existence of a disability; for example, it would

be a violation of this section for a retail store to require an individual

to state on a credit application whether the applicant has epilepsy, mental

illness, or any other disability, or to inquire unnecessarily whether an

individual has HIV disease.

Section 36.301 also prohibits policies that unnecessarily impose

requirements or burdens on individuals with disabilities that are not placed

on others. For example, public accommodations may not require that an

individual with a disability be accompanied by an attendant. As provided

by 36.306, however, a public accommodation is not required to provide

services of a personal nature including assistance in toileting, eating, or

dressing.

Paragraph (c) of 36.301 provides that public accommodations may not

place a surcharge on a particular individual with a disability or any group

of individuals with disabilities to cover the costs of measures, such as the

provision of auxiliary aids and services, barrier removal, alternatives to

barrier removal, and reasonable modifications in policies, practices, and

procedures, that are required to provide that individual or group with the

nondiscriminatory treatment required by the Act or this part.

A number of commenters inquired as to whether deposits required for the

use of auxiliary aids, such as assistive listening devices, are prohibited

surcharges. It is the Department's view that reasonable, completely

refundable, deposits are not to be considered surcharges prohibited by this

section. Requiring deposits is an important means of ensuring the

availability of equipment necessary to ensure compliance with the ADA.

Other commenters sought clarification as to whether 36.301(c) prohibits

professionals from charging for the additional time that it may take in

certain cases to provide services to an individual with disabilities. The

Department does not intend 36.301(c) to prohibit professionals who bill on

the basis of time from charging individuals with disabilities on that basis.

However, fees may not be charged for the provision of auxiliary aids and

services, barrier removal, alternatives to barrier removal, reasonable

modifications in policies, practices, and procedures, or any other measures

necessary to ensure compliance with the ADA.

Other commenters inquired as to whether day care centers may charge for

extra services provided to individuals with disabilities. As stated above,

36.302(c) is intended only to prohibit charges for measures necessary to

achieve compliance with the ADA.

Another commenter asserted that charges may be assessed for home

delivery provided as an alternative to barrier removal under 36.305, when

home delivery is provided to all customers for a fee. Charges for home

delivery are permissible if home delivery is not considered an alternative

to barrier removal. If the public accommodation offers an alternative, such

as curb, carry-out, or sidewalk service for which no surcharge is assessed,

then it may charge for home delivery in accordance with its standard pricing

for home delivery.

In addition, 36.301 prohibits the imposition of criteria that "tend

to" screen out an individual with a disability. This concept, which is

derived from current regulations under section 504 (see, e.g., 45 CFR

84.13), makes it discriminatory to impose policies or criteria that, while

not creating a direct bar to individuals with disabilities, indirectly

prevent or limit their ability to participate. For example, requiring

presentation of a driver's license as the sole means of identification for

purposes of paying by check would violate this section in situations where,

for example, individuals with severe vision impairments or developmental

disabilities or epilepsy are ineligible to receive a driver's license and

the use of an alternative means of identification, such as another photo

I.D. or credit card, is feasible.

A public accommodation may, however, impose neutral rules and criteria

that screen out, or tend to screen out, individuals with disabilities, if

the criteria are necessary for the safe operation of the public

accommodation. Examples of safety qualifications that would be justifiable

in appropriate circumstances would include height requirements for certain

amusement park rides or a requirement that all participants in a

recreational rafting expedition be able to meet a necessary level of

swimming proficiency. Safety requirements must be based on actual risks and

not on speculation, stereotypes, or generalizations about individuals with

disabilities.

36.302 Modifications in policies, practices, or procedures.

(a) General. A public accommodation shall make reasonable

modifications in policies, practices, or procedures, when the modifications

are necessary to afford goods, services, facilities, privileges, advantages,

or accommodations to individuals with disabilities, unless the public

accommodation can demonstrate that making the modifications would

fundamentally alter the nature of the goods, services, facilities,

privileges, advantages, or accommodations.

(b) Specialties. (1) General. A public accommodation may refer an

individual with a disability to another public accommodation, if that

individual is seeking, or requires, treatment or services outside of the

referring public accommodation's area of specialization, and if, in the

normal course of its operations, the referring public accommodation would

make a similar referral for an individual without a disability who seeks or

requires the same treatment or services.

(2) Illustration--medical specialties. A health care provider may

refer an individual with a disability to another provider, if that

individual is seeking, or requires, treatment or services outside of the

referring provider's area of specialization, and if the referring provider

would make a similar referral for an individual without a disability who

seeks or requires the same treatment or services. A physician who

specializes in treating only a particular condition cannot refuse to treat

an individual with a disability for that condition, but is not required to

treat the individual for a different condition.

(c) Service animals. (1) General. Generally, a public accommodation

shall modify policies, practices, or procedures to permit the use of a

service animal by an individual with a disability.

(2) Care or supervision of service animals. Nothing in this part

requires a public accommodation to supervise or care for a service animal.

(d) Check-out aisles. A store with check-out aisles shall ensure that

an adequate number of accessible check-out aisles is kept open during store

hours, or shall otherwise modify its policies and practices, in order to

ensure that an equivalent level of convenient service is provided to

individuals with disabilities as is provided to others. If only one

check-out aisle is accessible, and it is generally used for express service,

one way of providing equivalent service is to allow persons with mobility

impairments to make all their purchases at that aisle.

Section 36.302 Modifications in policies, practices, or procedures.

Section 36.302 of the rule prohibits the failure to make reasonable

modifications in policies, practices, and procedures when such modifications

may be necessary to afford any goods, services, facilities, privileges,

advantages, or accommodations, unless the entity can demonstrate that making

such modifications would fundamentally alter the nature of such goods,

services, facilities, privileges, advantages, or accommodations. This

prohibition is based on section 302(b)(2)(A)(ii) of the ADA.

For example, a parking facility would be required to modify a rule

barring all vans or all vans with raised roofs, if an individual who uses

a wheelchair-accessible van wishes to park in that facility, and if overhead

structures are high enough to accommodate the height of the van. A

department store may need to modify a policy of only permitting one person

at a time in a dressing room, if an individual with mental retardation needs

and requests assistance in dressing from a companion. Public accommodations

may need to revise operational policies to ensure that services are

available to individuals with disabilities. For instance, a hotel may need

to adopt a policy of keeping an accessible room unoccupied until an

individual with a disability arrives at the hotel, assuming the individual

has properly reserved the room.

One example of application of this principle is specifically included

in a new 36.302(d) on check-out aisles. That paragraph provides that a

store with check-out aisles must ensure that an adequate number of

accessible check-out aisles is kept open during store hours, or must

otherwise modify its policies and practices, in order to ensure that an

equivalent level of convenient service is provided to individuals with

disabilities as is provided to others. For example, if only one check-out

aisle is accessible, and it is generally used for express service, one way

of providing equivalent service is to allow persons with mobility

impairments to make all of their purchases at that aisle. This principle

also applies with respect to other accessible elements and services. For

example, a particular bank may be in compliance with the accessibility

guidelines for new construction incorporated in Appendix A with respect to

automated teller machines (ATM) at a new branch office by providing one

accessible walk-up machine at that location, even though an adjacent walk-up

ATM is not accessible and the drive-up ATM is not accessible. However, the

bank would be in violation of this section if the accessible ATM was located

in a lobby that was locked during evening hours while the drive-up ATM was

available to customers without disabilities during those same hours. The

bank would need to ensure that the accessible ATM was available to customers

during the hours that any of the other ATM's was available.

A number of commenters inquired as to the relationship between this

section and 36.307, "Accessible or special goods." Under 36.307, a public

accommodation is not required to alter its inventory to include accessible

or special goods that are designed for, or facilitate use by, individuals

with disabilities. The rule enunciated in 36.307 is consistent with the

"fundamental alteration" defense to the reasonable modifications requirement

of 36.302. Therefore, 36.302 would not require the inventory of goods

provided by a public accommodation to be altered to include goods with

accessibility features. For example, 36.302 would not require a bookstore

to stock brailled books or order brailled books, if it does not do so in the

normal course of its business.

The rule does not require modifications to the legitimate areas of

specialization of service providers. Section 36.302(b) provides that a

public accommodation may refer an individual with a disability to another

public accommodation, if that individual is seeking, or requires, treatment

or services outside of the referring public accommodation's area of

specialization, and if, in the normal course of its operations, the

referring public accommodation would make a similar referral for an

individual without a disability who seeks or requires the same treatment or

services.

For example, it would not be discriminatory for a physician who

specializes only in burn treatment to refer an individual who is deaf to

another physician for treatment of an injury other than a burn injury. To

require a physician to accept patients outside of his or her specialty would

fundamentally alter the nature of the medical practice and, therefore, not

be required by this section.

A clinic specializing exclusively in drug rehabilitation could

similarly refuse to treat a person who is not a drug addict, but could not

refuse to treat a person who is a drug addict simply because the patient

tests positive for HIV. Conversely, a clinic that specializes in the

treatment of individuals with HIV could refuse to treat an individual that

does not have HIV, but could not refuse to treat a person for HIV infection

simply because that person is also a drug addict.

Some commenters requested clarification as to how this provision would

apply to situations where manifestations of the disability in question,

itself, would raise complications requiring the expertise of a different

practitioner. It is not the Department's intention in 36.302(b) to prohibit

a physician from referring an individual with a disability to another

physician, if the disability itself creates specialized complications for

the patient's health that the physician lacks the experience or knowledge

to address (see Education and Labor report at 106).

Section 36.302(c)(1) requires that a public accommodation modify its

policies, practices, or procedures to permit the use of a service animal by

an individual with a disability in any area open to the general public. The

term "service animal" is defined in 36.104 to include guide dogs, signal

dogs, or any other animal individually trained to provide assistance to an

individual with a disability.

A number of commenters pointed to the difficulty of making the

distinction required by the proposed rule between areas open to the general

public and those that are not. The ambiguity and uncertainty surrounding

these provisions has led the Department to adopt a single standard for all

public accommodations.

Section 36.302(c)(1) of the final rule now provides that "[g]enerally,

a public accommodation shall modify policies, practices, and procedures to

permit the use of a service animal by an individual with a disability."

This formulation reflects the general intent of Congress that public

accommodations take the necessary steps to accommodate service animals and

to ensure that individuals with disabilities are not separated from their

service animals. It is intended that the broadest feasible access be

provided to service animals in all places of public accommodation, including

movie theaters, restaurants, hotels, retail stores, hospitals, and nursing

homes (see Education and Labor report at 106; Judiciary report at 59). The

section also acknowledges, however, that, in rare circumstances,

accommodation of service animals may not be required because a fundamental

alteration would result in the nature of the goods, services, facilities,

privileges, or accommodations offered or provided, or the safe operation of

the public accommodation would be jeopardized.

As specified in 36.302(c)(2), the rule does not require a public

accommodation to supervise or care for any service animal. If a service

animal must be separated from an individual with a disability in order to

avoid a fundamental alteration or a threat to safety, it is the

responsibility of the individual with the disability to arrange for the care

and supervision of the animal during the period of separation.

A museum would not be required by 36.302 to modify a policy barring the

touching of delicate works of art in order to enhance the participation of

individuals who are blind, if the touching threatened the integrity of the

work. Damage to a museum piece would clearly be a fundamental alteration

that is not required by this section.

36.303 Auxiliary aids and services.

 

(a) General. A public accommodation shall take those steps that may

be necessary to ensure that no individual with a disability is excluded,

denied services, segregated or otherwise treated differently than other

individuals because of the absence of auxiliary aids and services, unless

the public accommodation can demonstrate that taking those steps would

fundamentally alter the nature of the goods, services, facilities,

privileges, advantages, or accommodations being offered or would result in

an undue burden, i.e., significant difficulty or expense.

(b) Examples. The term "auxiliary aids and services" includes--

(1) Qualified interpreters, notetakers, computer-aided transcription

services, written materials, telephone handset amplifiers, assistive

listening devices, assistive listening systems, telephones compatible with

hearing aids, closed caption decoders, open and closed captioning,

telecommunications devices for deaf persons (TDD's), videotext displays, or

other effective methods of making aurally delivered materials available to

individuals with hearing impairments;

(2) Qualified readers, taped texts, audio recordings, Brailled

materials, large print materials, or other effective methods of making

visually delivered materials available to individuals with visual

impairments;

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

(4) Other similar services and actions.

(c) Effective communication. A public accommodation shall furnish

appropriate auxiliary aids and services where necessary to ensure effective

communication with individuals with disabilities.

(d) Telecommunication devices for the deaf (TDD's). (1) A public

accommodation that offers a customer, client, patient, or participant the

opportunity to make outgoing telephone calls on more than an incidental

convenience basis shall make available, upon request, a TDD for the use of

an individual who has impaired hearing or a communication disorder.

(2) This part does not require a public accommodation to use a TDD for

receiving or making telephone calls incident to its operations.

 

(e) Closed caption decoders. Places of lodging that provide

televisions in five or more guest rooms and hospitals that provide

televisions for patient use shall provide, upon request, a means for

decoding captions for use by an individual with impaired hearing.

(f) Alternatives. If provision of a particular auxiliary aid or

service by a public accommodation would result in a fundamental alteration

in the nature of the goods, services, facilities, privileges, advantages,

or accommodations being offered or in an undue burden, i.e., significant

difficulty or expense, the public accommodation shall provide an alternative

auxiliary aid or service, if one exists, that would not result in such an

alteration or such burden but would nevertheless ensure that, to the maximum

extent possible, individuals with disabilities receive the goods, services,

facilities, privileges, advantages, or accommodations offered by the public

accommodation.

Section 36.303 Auxiliary aids and services.

Section 36.303 of the final rule requires a public accommodation to

take such steps as may be necessary to ensure that no individual with a

disability is excluded, denied services, segregated or otherwise treated

differently than other individuals because of the absence of auxiliary aids

and services, unless the public accommodation can demonstrate that taking

such steps would fundamentally alter the nature of the goods, services,

facilities, advantages, or accommodations being offered or would result in

an undue burden. This requirement is based on section 302(b)(2)(A)(iii) of

the ADA.

Implicit in this duty to provide auxiliary aids and services is the

underlying obligation of a public accommodation to communicate effectively

with its customers, clients, patients, or participants who have disabilities

affecting hearing, vision, or speech. To give emphasis to this underlying

obligation, 36.303(c) of the rule incorporates language derived

from section 504 regulations for federally conducted programs (see e.g., 28

CFR 39.160(a)) that requires that appropriate auxiliary aids and services

be furnished to ensure that communication with persons with disabilities is

as effective as communication with others.

Auxiliary aids and services include a wide range of services and

devices for ensuring effective communication. Use of the most advanced

technology is not required so long as effective communication is ensured.

The Department's proposed 36.303(b) provided a list of examples of auxiliary

aids and services that was taken from the definition of auxiliary aids and

services in section 3(1) of the ADA and was supplemented by examples from

regulations implementing section 504 in federally conducted programs (see

e.g., 28 CFR 39.103). A substantial number of commenters suggested that

additional examples be added to this list. The Department has added several

items to this list but wishes to clarify that the list is not an

all-inclusive or exhaustive catalogue of possible or available auxiliary

aids or services. It is not possible to provide an exhaustive list, and

such an attempt would omit new devices that will become available with

emerging technology.

The Department has added videotext displays, computer-aided

transcription services, and open and closed captioning to the list of

examples. Videotext displays have become an important means of accessing

auditory communications through a public address system. Transcription

services are used to relay aurally delivered material almost simultaneously

in written form to persons who are deaf or hard of hearing. This technology

is often used at conferences, conventions, and hearings. While the proposed

rule expressly included television decoder equipment as an auxiliary aid or

service, it did not mention captioning itself. The final rule rectifies

this omission by mentioning both closed and open captioning.

In this section, the Department has changed the proposed rule's phrase,

"orally delivered materials," to the phrase, "aurally delivered materials."

This new phrase tracks the language in the definition of "auxiliary aids and

services" in section 3 of the ADA and is meant to include nonverbal sounds

and alarms and computer-generated speech.

Several persons and organizations requested that the Department replace

the term "telecommunications devices for deaf persons" or "TDD's" with the

term "text telephone." The Department has declined to do so. The

Department is aware that the Architectural and Transportation Barriers

Compliance Board has used the phrase "text telephone" in lieu of the

statutory term "TDD" in its final accessibility guidelines. Title IV of the

ADA, however, uses the term "Telecommunications Device for the Deaf," and

the Department believes it would be inappropriate to abandon this statutory

term at this time.

 

Paragraph (b)(2) lists examples of aids and services for making

visually delivered materials accessible to persons with visual impairments.

Many commenters proposed additional examples such as signage or mapping,

audio description services, secondary auditory programs (SAP),

telebraillers, and reading machines. While the Department declines to add

these items to the list in the regulation, they may be considered

appropriate auxiliary aids and services.

Paragraph (b)(3) refers to the acquisition or modification of equipment

or devices. For example, tape players used for an audio-guided tour of a

museum exhibit may require the addition of brailled adhesive labels to the

buttons on a reasonable number of the tape players to facilitate their use

by individuals who are blind. Similarly, permanent or portable assistive

listening systems for persons with hearing impairments may be required at

a hotel conference center.

Several commenters suggested the addition of current technological

innovations in microelectronics and computerized control systems (e.g.,

voice recognition systems, automatic dialing telephones, and infrared

elevator and light control systems) to the list of auxiliary aids and

services. The Department interprets auxiliary aids and services as those

aids and services designed to provide effective communications, i.e., making

aurally and visually delivered information available to persons with

hearing, speech, and vision impairments. Methods of making services,

programs, or activities accessible to, or usable by, individuals with

mobility or manual dexterity impairments are addressed by other sections of

this part, including the requirements for modifications in policies,

practices, or procedures (36.302), the elimination of existing architectural

barriers (36.304), and the provision of alternatives to barriers removal

(36.305).

Paragraph (b)(4) refers to other similar services and actions. Several

commenters asked for clarification that "similar services and actions"

include retrieving items from shelves, assistance in reaching a marginally

accessible seat, pushing a barrier aside in order to provide an accessible

route, or assistance in removing a sweater or coat. While retrieving an

item from a shelf might be an "auxiliary aid or service" for a blind person

who could not locate the item without assistance, it might be a readily

achievable alternative to barrier removal for a person using a wheelchair

who could not reach the shelf, or a reasonable modification to a

self-service policy for an individual who lacked the ability to grasp the

item. (Of course, a store would not be required to provide a personal

shopper.) As explained above, auxiliary aids and services are those aids

and services required to provide effective communications. Other forms of

assistance are more appropriately addressed by other provisions of the final

rule.

The auxiliary aid requirement is a flexible one. A public

accommodation can choose among various alternatives as long as the result

is effective communication. For example, a restaurant would not be required

to provide menus in braille for patrons who are blind, if the waiters in the

restaurant are made available to read the menu. Similarly, a clothing

boutique would not be required to have brailled price tags if sales

personnel provide price information orally upon request; and a bookstore

would not be required to make available a sign language interpreter, because

effective communication can be conducted by notepad.

 

A critical determination is what constitutes an effective auxiliary aid

or service. The Department's proposed rule recommended that, in determining

what auxiliary aid to use, the public accommodation consult with an

individual before providing him or her with a particular auxiliary aid or

service. This suggestion sparked a significant volume of public comment.

Many persons with disabilities, particularly persons who are deaf or hard

of hearing, recommended that the rule should require that public

accommodations give "primary consideration" to the "expressed choice" of an

individual with a disability. These commenters asserted that the proposed

rule was inconsistent with congressional intent of the ADA, with the

Department's proposed rule implementing title II of the ADA, and with

longstanding interpretations of section 504 of the Rehabilitation Act.

Based upon a careful review of the ADA legislative history, the

Department believes that Congress did not intend under title III to impose

upon a public accommodation the requirement that it give primary

consideration to the request of the individual with a disability. To the

contrary, the legislative history demonstrates congressional intent to

strongly encourage consulting with persons with disabilities. In its

analysis of the ADA's auxiliary aids requirement for public accommodations,

the House Education and Labor Committee stated that it "expects" that

"public accommodation[s] will consult with the individual with a disability

before providing a particular auxiliary aid or service" (Education and Labor

report at 107). Some commenters also cited a different committee statement

that used mandatory language as evidence of legislative intent to require

primary consideration. However, this statement was made in the context of

reasonable accommodations required by Title I with respect to employment

(Education and Labor report at 67). Thus, the Department finds that

strongly encouraging consultation with persons with disabilities, in lieu

of mandating primary consideration of their expressed choice, is consistent

with congressional intent.

The Department wishes to emphasize that public accommodations must take

steps necessary to ensure that an individual with a disability will not be

excluded, denied services, segregated or otherwise treated differently from

other individuals because of the use of inappropriate or ineffective

auxiliary aids. In those situations requiring an interpreter, the public

accommodations must secure the services of a qualified interpreter, unless

an undue burden would result.

 

In the analysis of 36.303(c) in the proposed rule, the Department gave

as an example the situation where a note pad and written materials were

insufficient to permit effective communication in a doctor's office when the

matter to be decided was whether major surgery was necessary. Many

commenters objected to this statement, asserting that it gave the impression

that only decisions about major surgery would merit the provision of a sign

language interpreter. The statement would, as the commenters also claimed,

convey the impression to other public accommodations that written

communications would meet the regulatory requirements in all but the most

extreme situations. The Department, when using the example of major

surgery, did not intent to limit the provision of interpreter services to

the most extreme situations.

Other situations may also require the use of interpreters to ensure

effective communication depending on the facts of the particular case. It

is not difficult to imagine a wide range of communications involving areas

such as health, legal matters, and finances that would be sufficiently

lengthy or complex to require an interpreter for effective communication.

In some situations, an effective alternative to use of a notepad or an

interpreter may be the use of a computer terminal upon which the

representative of the public accommodation and the customer or client can

exchange typewritten messages.

Section 36.303(d) specifically addresses requirements for TDD's.

Partly because of the availability of telecommunications relay services to

be established under title IV of the ADA, 36.303(d)(2) provides that a

public accommodation is not required to use a telecommunication device for

the deaf (TDD) in receiving or making telephone calls incident to its

operations. Several commenters were concerned that relay services would not

be sufficient to provide effective access in a number of situations.

Commenters argued that relay systems (1) do not provide effective access to

the automated systems that require the caller to respond by pushing a button

on a touch tone phone, (2) cannot operate fast enough to convey messages on

answering machines, or to permit a TDD user to leave a recorded message, and

(3) are not appropriate for calling crisis lines relating to such matters

as rape, domestic violence, child abuse, and drugs where confidentiality is

a concern. The Department believes that it is more appropriate for the

Federal Communications Commission to address these issues in its rulemaking

under title IV.

 

A public accommodation is, however, required to make a TDD available

to an individual with impaired hearing or speech, if it customarily offers

telephone service to its customers, clients, patients, or participants on

more than an incidental convenience basis. Where entry to a place of public

accommodation requires use of a security entrance telephone, a TDD or other

effective means of communication must be provided for use by an individual

with impaired hearing or speech.

In other words, individual retail stores, doctors' offices,

restaurants, or similar establishments are not required by this section to

have TDD's, because TDD users will be able to make inquiries, appointments,

or reservations with such establishments through the relay system

established under title IV of the ADA. The public accommodation will

likewise be able to contact TDD users through the relay system. On the

other hand, hotels, hospitals, and other similar establishments that offer

nondisabled individuals the opportunity to make outgoing telephone calls on

more than an incidental convenience basis must provide a TDD on request.

Section 36.303(e) requires places of lodging that provide televisions

in five or more guest rooms and hospitals to provide, upon request, a means

for decoding closed captions for use by an individual with impaired hearing.

Hotels should also provide a TDD or similar device at the front desk in

order to take calls from guests who use TDD's in their rooms. In this way

guests with hearing impairments can avail themselves of such hotel services

as making inquiries of the front desk and ordering room service. The term

"hospital" is used in its general sense and should be interpreted broadly.

Movie theaters are not required by 36.303 to present open-captioned

films. However, other public accommodations that impart verbal information

through soundtracks on films, video tapes, or slide shows are required to

make such information accessible to persons with hearing impairments.

Captioning is one means to make the information accessible to individuals

with disabilities.

The rule specifies that auxiliary aids and services include the

acquisition or modification of equipment or devices. For example, tape

players used for an audio-guided tour of a museum exhibit may require the

addition of brailled adhesive labels to the buttons on a reasonable number

of the tape players to facilitate their use by individuals who are blind.

Similarly, a hotel conference center may need to provide permanent or

portable assistive listening systems for persons with hearing impairments.

As provided in 36.303(f), a public accommodation is not required to

provide any particular aid or service that would result either in a

fundamental alteration in the nature of the goods, services, facilities,

privileges, advantages, or accommodations offered or in an undue burden.

Both of these statutory limitations are derived from existing regulations

and caselaw under section 504 and are to be applied on a case-by-case basis

(see, e.g., 28 CFR 39.160(d) and Southeastern Community College v. Davis,

442 U.S. 397 (1979)). Congress intended that "undue burden" under 36.303

and "undue hardship," which is used in the employment provisions of title

I of the ADA, should be determined on a case-by-case basis under the same

standards and in light of the same factors (Judiciary report at 59). The

rule, therefore, in accordance with the definition of undue hardship in

section 101(10) of the ADA, defines undue burden as "significant difficulty

or expense" (see 36.104 and 36.303(a)) and requires that undue burden be

determined in light of the factors listed in the definition in 36.104.

Consistent with regulations implementing section 504 in federally

conducted programs (see, e.g., 28 CFR 39.160(d)), 36.303(f) provides that

the fact that the provision of a particular auxiliary aid or service would

result in an undue burden does not relieve a public accommodation from the

duty to furnish an alternative auxiliary aid or service, if available, that

would not result in such a burden.

Section 36.303(g) of the proposed rule has been deleted from this

section and included in a new 36.306. That new section continues to make

clear that the auxiliary aids requirement does not mandate the provision of

individually prescribed devices, such as prescription eyeglasses or hearing

aids.

The costs of compliance with the requirements of this section may not

be financed by surcharges limited to particular individuals with

disabilities or any group of individuals with disabilities (36.301(c)).

 

36.304 Removal of barriers.

(a) General. A public accommodation shall remove architectural

barriers in existing facilities, including communication barriers that are

structural in nature, where such removal is readily achievable, i.e., easily

accomplishable and able to be carried out without much difficulty or

expense.

(b) Examples. Examples of steps to remove barriers include, but are

not limited to, the following actions--

(1) Installing ramps;

(2) Making curb cuts in sidewalks and entrances;

(3) Repositioning shelves;

(4) Rearranging tables, chairs, vending machines, display racks, and

other furniture;

(5) Repositioning telephones;

(6) Adding raised markings on elevator control buttons;

(7) Installing flashing alarm lights;

(8) Widening doors;

(9) Installing offset hinges to widen doorways;

(10) Eliminating a turnstile or providing an alternative accessible

path;

(11) Installing accessible door hardware;

(12) Installing grab bars in toilet stalls;

(13) Rearranging toilet partitions to increase maneuvering space;

(14) Insulating lavatory pipes under sinks to prevent burns;

(15) Installing a raised toilet seat;

(16) Installing a full-length bathroom mirror;

(17) Repositioning the paper towel dispenser in a bathroom;

(18) Creating designated accessible parking spaces;

(19) Installing an accessible paper cup dispenser at an existing

inaccessible water fountain;

(20) Removing high pile, low density carpeting; or

(21) Installing vehicle hand controls.

(c) Priorities. A public accommodation is urged to take measures to

comply with the barrier removal requirements of this section in accordance

with the following order of priorities.

(1) First, a public accommodation should take measures to provide

access to a place of public accommodation from public sidewalks, parking,

or public transportation. These measures include, for example, installing

an entrance ramp, widening entrances, and providing accessible parking

spaces.

(2) Second, a public accommodation should take measures to provide

access to those areas of a place of public accommodation where goods and

services are made available to the public. These measures include, for

example, adjusting the layout of display racks, rearranging tables,

providing brailled and raised character signage, widening doors, providing

visual alarms, and installing ramps.

(3) Third, a public accommodation should take measures to provide

access to restroom facilities. These measures include, for example, removal

of obstructing furniture or vending machines, widening of doors,

installation of ramps, providing accessible signage, widening of toilet

stalls, and installation of grab bars.

(4) Fourth, a public accommodation should take any other measures

necessary to provide access to the goods, services, facilities, privileges,

advantages, or accommodations of a place of public accommodation.

(d) Relationship to alterations requirements of subpart D of this

part. (1) Except as provided in paragraph (d)(2) of this section, measures

taken to comply with the barrier removal requirements of this section shall

comply with the applicable requirements for alterations in 36.402 and

36.404-36.406 of this part for the element being altered. The path of

travel requirements of 36.403 shall not apply to measures taken solely to

comply with the barrier removal requirements of this section.

(2) If, as a result of compliance with the alterations requirements

specified in paragraph (d)(1) of this section, the measures required to

remove a barrier would not be readily achievable, a public accommodation may

take other readily achievable measures to remove the barrier that do not

fully comply with the specified requirements. Such measures include, for

example, providing a ramp with a steeper slope or widening a doorway to a

narrower width than that mandated by the alterations requirements. No

measure shall be taken, however, that poses a significant risk to the health

or safety of individuals with disabilities or others.

(e) Portable ramps. Portable ramps should be used to comply with this

section only when installation of a permanent ramp is not readily

achievable. In order to avoid any significant risk to the health or safety

of individuals with disabilities or others in using portable ramps, due

consideration shall be given to safety features such as nonslip surfaces,

railings, anchoring, and strength of materials.

(f) Selling or serving space. The rearrangement of temporary or

movable structures, such as furniture, equipment, and display racks is not

readily achievable to the extent that it results in a significant loss of

selling or serving space.

(g) Limitation on barrier removal obligations. (1) The requirements

for barrier removal under 36.304 shall not be interpreted to exceed the

standards for alterations in subpart D of this part.

(2) To the extent that relevant standards for alterations are not

provided in subpart D of this part, then the requirements of 36.304 shall

not be interpreted to exceed the standards for new construction in subpart

D of this part.

(3) This section does not apply to rolling stock and other conveyances

to the extent that 36.310 applies to rolling stock and other conveyances.

Section 36.304 Removal of barriers.

Section 36.304 requires the removal of architectural barriers and

communication barriers that are structural in nature in existing facilities,

where such removal is readily achievable, i.e., easily accomplishable and

able to be carried out without much difficulty or expense. This requirement

is based on section 302(b)(2)(A)(iv) of the ADA.

A number of commenters interpreted the phrase "communication barriers

that are structural in nature" broadly to encompass the provision of

communications devices such as TDD's, telephone handset amplifiers,

assistive listening devices, and digital check-out displays. The statute,

however, as read by the Department, limits the application of the phrase

"communications barriers that are structural in nature" to those barriers

that are an integral part of the physical structure of a facility. In

addition to the communications barriers posed by permanent signage and alarm

systems noted by Congress (see Education and Labor report at 110), the

Department would also include among the communications barriers covered by

36.304 the failure to provide adequate sound buffers, and the presence of

physical partitions that hamper the passage of sound waves between employees

and customers. Given that 36.304's proper focus is on the removal of

physical barriers, the Department believes that the obligation to provide

communications equipment and devices such as TDD's, telephone handset

amplifiers, assistive listening devices, and digital check-out displays is

more appropriately determined by the requirements for auxiliary aids and

services under 36.303 (see Education and Labor report at 107-108). The

obligation to remove communications barriers that are structural in nature

under 36.304, of course, is independent of any obligation to provide

auxiliary aids and services under 36.303.

The statutory provision also requires the readily achievable removal

of certain barriers in existing vehicles and rail passenger cars. This

transportation requirement is not included in 36.304, but rather in

36.310(b) of the rule.

In striking a balance between guaranteeing access to individuals with

disabilities and recognizing the legitimate cost concerns of businesses and

other private entities, the ADA establishes different standards for existing

facilities and new construction. In existing facilities, which are the

subject of 36.304, where retrofitting may prove costly, a less rigorous

degree of accessibility is required than in the case of new construction and

alterations (see 36.401-36.406) where accessibility can be more conveniently

and economically incorporated in the initial stages of design and

construction.

For example, a bank with existing automatic teller machines (ATM's)

would have to remove barriers to the use of the ATM's, if it is readily

achievable to do so. Whether or not it is necessary to take actions such

as ramping a few steps or raising or lowering an ATM would be determined by

whether the actions can be accomplished easily and without much difficulty

or expense.

On the other hand, a newly constructed bank with ATM's would be

required by 36.401 to have an ATM that is "readily accessible to and usable

by" persons with disabilities in accordance with accessibility guidelines

incorporated under 36.406.

The requirement to remove architectural barriers includes the removal

of physical barriers of any kind. For example, 36.304 requires the removal,

when readily achievable, of barriers caused by the location of temporary or

movable structures, such as furniture, equipment, and display racks. In

order to provide access to individuals who use wheelchairs, for example,

restaurants may need to rearrange tables and chairs, and department stores

may need to reconfigure display racks and shelves. As stated in 36.304(f),

such actions are not readily achievable to the extent that they would result

in a significant loss of selling or serving space. If the widening of all

aisles in selling or serving areas is not readily achievable, then selected

widening should be undertaken to maximize the amount of merchandise or the

number of tables accessible to individuals who use wheelchairs. Access to

goods and services provided in any remaining inaccessible areas must be made

available through alternative methods to barrier removal, as required by

36.305.

Because the purpose of title III of the ADA is to ensure that public

accommodations are accessible to their customers, clients, or patrons (as

opposed to their employees, who are the focus of title I), the obligation

to remove barriers under 36.304 does not extend to areas of a facility that

are used exclusively as employee work areas.

Section 36.304(b) provides a wide-ranging list of the types of modest

measures that may be taken to remove barriers and that are likely to be

readily achievable. The list includes examples of measures, such as adding

raised letter markings on elevator control buttons and installing flashing

alarm lights, that would be used to remove communications barriers that are

structural in nature. It is not an exhaustive list, but merely an

illustrative one. Moreover, the inclusion of a measure on this list does

not mean that it is readily achievable in all cases. Whether or not any of

these measures is readily achievable is to be determined on a case-by-case

basis in light of the particular circumstances presented and the factors

listed in the definition of readily achievable (36.104).

A public accommodation generally would not be required to remove a

barrier to physical access posed by a flight of steps, if removal would

require extensive ramping or an elevator. Ramping a single step, however,

will likely be readily achievable, and ramping several steps will in many

circumstances also be readily achievable. The readily achievable standard

does not require barrier removal that requires extensive restructuring or

burdensome expense. Thus, where it is not readily achievable to do, the ADA

would not require a restaurant to provide access to a restroom reachable

only by a flight of stairs.

Like 36.405, this section permits deference to the national interest

in preserving significant historic structures. Barrier removal would not

be considered "readily achievable" if it would threaten or destroy the

historic significance of a building or facility that is eligible for listing

in the National Register of Historic Places under the National Historic

Preservation Act (16 U.S.C. 470, et seq.), or is designated as historic

under State or local law.

The readily achievable defense requires a less demanding level of

exertion by a public accommodation than does the undue burden defense to the

auxiliary aids requirements of 36.303. In that sense, it can be

characterized as a "lower" standard than the undue burden standard. The

readily achievable defense is also less demanding than the undue hardship

defense in section 102(b)(5) of the ADA, which limits the obligation to make

reasonable accommodation in employment. Barrier removal measures that are

not easily accomplishable and are not able to be carried out without much

difficulty or expense are not required under the readily achievable

standard, even if they do not impose an undue burden or an undue hardship.

 

Section 36.304(f)(1) of the proposed rule, which stated that "barrier

removal is not readily achievable if it would result in significant loss of

profit or significant loss of efficiency of operation," has been deleted

from the final rule. Many commenters objected to this provision because it

impermissibly introduced the notion of profit into a statutory standard that

did not include it. Concern was expressed that, in order for an action not

to be considered readily achievable, a public accommodation would

inappropriately have to show, for example, not only that the action could

not be done without "much difficulty or expense", but that a significant

loss of profit would result as well. In addition, some commenters asserted

use of the word "significant," which is used in the definition of undue

hardship under title I (the standard for interpreting the meaning of undue

burden as a defense to title III's auxiliary aids requirements) (see 36.104,

36.303(f)), blurs the fact that the readily achievable standard requires a

lower level of effort on the part of a public accommodation than does the

undue burden standard.

The obligation to engage in readily achievable barrier removal is a

continuing one. Over time, barrier removal that initially was not readily

achievable may later be required because of changed circumstances. Many

commenters expressed support for the Department's position that the

obligation to comply with 36.304 is continuing in nature. Some urged that

the rule require public accommodations to assess their compliance on at

least an annual basis in light of changes in resources and other factors

that would be relevant to determining what barrier removal measures would

be readily achievable.

Although the obligation to engage in readily achievable barrier removal

is clearly a continuing duty, the Department has declined to establish any

independent requirement for an annual assessment or self-evaluation. It is

best left to the public accommodations subject to 36.304 to establish

policies to assess compliance that are appropriate to the particular

circumstances faced by the wide range of public accommodations covered by

the ADA. However, even in the absence of an explicit regulatory requirement

for periodic self-evaluations, the Department still urges public

accommodations to establish procedures for an ongoing assessment of their

compliance with the ADA's barrier removal requirements. The Department

recommends that this process include appropriate consultation with

individuals with disabilities or organizations representing them. A serious

effort at self-assessment and consultation can diminish the threat of

litigation and save resources by identifying the most efficient means of

providing required access.

The Department has been asked for guidance on the best means for public

accommodations to comply voluntarily with this section. Such information

is more appropriately part of the Department's technical assistance effort

and will be forthcoming over the next several months. The Department

recommends, however, the development of an implementation plan designed to

achieve compliance with the ADA's barrier removal requirements before they

become effective on January 26, 1992. Such a plan, if appropriately

designed and diligently executed, could serve as evidence of a good faith

effort to comply with the requirements of 36.104. In developing an

implementation plan for readily achievable barrier removal, a public

accommodation should consult with local organizations representing persons

with disabilities and solicit their suggestions for cost-effective means of

making individual places of public accommodation accessible. Such

organizations may also be helpful in allocating scarce resources and

establishing priorities. Local associations of businesses may want to

encourage this process and serve as the forum for discussions on the local

level between disability rights organizations and local businesses.

 

Section 36.304(c) recommends priorities for public accommodations in

removing barriers in existing facilities. Because the resources available

for barrier removal may not be adequate to remove all existing barriers at

any given time, 36.304(c) suggests priorities for determining which types

of barriers should be mitigated or eliminated first. The purpose of these

priorities is to facilitate long-term business planning and to maximize, in

light of limited resources, the degree of effective access that will result

from any given level of expenditure.

Although many commenters expressed support for the concept of

establishing priorities, a significant number objected to their mandatory

nature in the proposed rule. The Department shares the concern of these

commenters that mandatory priorities would increase the likelihood of

litigation and inappropriately reduce the discretion of public

accommodations to determine the most effective mix of barrier removal

measures to undertake in particular circumstances. Therefore, in the final

rule the priorities are no longer mandatory.

 

In response to comments that the priorities failed to address

communications issues, the Department wishes to emphasize that the

priorities encompass the removal of communications barriers that are

structural in nature. It would be counter to the ADA's carefully wrought

statutory scheme to include in this provision the wide range of

communication devices that are required by the ADA's provisions on auxiliary

aids and services. The final rule explicitly includes brailled and raised

letter signage and visual alarms among the examples of steps to remove

barriers provided in 36.304(c)(2).

Section 36.304(c)(1) places the highest priority on measures that will

enable individuals with disabilities to physically enter a place of public

accommodation. This priority on "getting through the door" recognizes that

providing actual physical access to a facility from public sidewalks, public

transportation, or parking is generally preferable to any alternative

arrangements in terms of both business efficiency and the dignity of

individuals with disabilities.

The next priority, which is established in 36.304(c)(2), is for

measures that provide access to those areas of a place of public

accommodation where goods and services are made available to the public.

For example, in a hardware store, to the extent that it is readily

achievable to do so, individuals with disabilities should be given access

not only to assistance at the front desk, but also access, like that

available to other customers, to the retail display areas of the store.

The Department agrees with those commenters who argued that access to

the areas where goods and services are provided is generally more important

than the provision of restrooms. Therefore, the final rule reverses

priorities two and three of the proposed rule in order to give lower

priority to accessible restrooms. Consequently, the third priority in the

final rule (36.304(c)(3)) is for measures to provide access to restroom

facilities and the last priority is placed on any remaining measures

required to remove barriers.

Section 36.304(d) requires that measures taken to remove barriers under

36.304 be subject to subpart D's requirements for alterations (except for

the path of travel requirements in 36.403). It only permits deviations from

the subpart D requirements when compliance with those requirements is not

readily achievable. In such cases, 36.304(d) permits measures to be taken

that do not fully comply with the subpart D requirements, so long as the

measures do not pose a significant risk to the health or safety of

individuals with disabilities or others.

 

This approach represents a change from the proposed rule which stated

that "readily achievable" measures taken solely to remove barriers under

36.304 are exempt from the alterations requirements of subpart D. The

intent of the proposed rule was to maximize the flexibility of public

accommodations in undertaking barrier removal by allowing deviations from

the technical standards of subpart D. It was thought that allowing slight

deviations would provide access and release additional resources for

expanding the amount of barrier removal that could be obtained under the

readily achievable standard.

Many commenters, however, representing both businesses and individuals

with disabilities, questioned this approach because of the likelihood that

unsafe or ineffective measures would be taken in the absence of the subpart

D standards for alterations as a reference point. Some advocated a rule

requiring strict compliance with the subpart D standard.

The Department in the final rule has adopted the view of many

commenters that (1) public accommodations should in the first instance be

required to comply with the subpart D standards for alterations where it is

readily achievable to do so and (2) safe, readily achievable measures must

be taken when compliance with the subpart D standards is not readily

achievable. Reference to the subpart D standards in this manner will

promote certainty and good design at the same time that permitting slight

deviations will expand the amount of barrier removal that may be achieved

under 36.304.

Because of the inconvenience to individuals with disabilities and the

safety problems involved in the use of portable ramps, 36.304(e) permits the

use of a portable ramp to comply with 36.304(a) only when installation of

a permanent ramp is not readily achievable. In order to promote safety,

36.304(e) requires that due consideration be given to the incorporation of

features such as nonslip surfaces, railings, anchoring, and strength of

materials in any portable ramp that is used.

Temporary facilities brought in for use at the site of a natural

disaster are subject to the barrier removal requirements of 36.304.

A number of commenters requested clarification regarding how to

determine when a public accommodation has discharged its obligation to

remove barriers in existing facilities. For example, is a hotel required

by 36.304 to remove barriers in all of its guest rooms? Or is some lesser

percentage adequate? A new paragraph (g) has been added to 36.304 to

address this issue. The Department believes that the degree of barrier

removal required under 36.304 may be less, but certainly would not be

required to exceed, the standards for alterations under the ADA

Accessibility Guidelines incorporated by subpart D of this part (ADAAG).

The ADA's requirements for readily achievable barrier removal in existing

facilities are intended to be substantially less rigorous than those for new

construction and alterations. It, therefore, would be obviously

inappropriate to require actions under 36.304 that would exceed the ADAAG

requirements. Hotels, then, in order to satisfy the requirements of 36.304,

would not be required to remove barriers in a higher percentage of rooms

than required by ADAAG. If relevant standards for alterations are not

provided in ADAAG, then reference should be made to the standards for new

construction.

 

36.305 Alternatives to barrier removal.

(a) General. Where a public accommodation can demonstrate that

barrier removal is not readily achievable, the public accommodation shall

not fail to make its goods, services, facilities, privileges, advantages,

or accommodations available through alternative methods, if those methods

are readily achievable.

(b) Examples. Examples of alternatives to barrier removal include,

but are not limited to, the following actions--

(1) Providing curb service or home delivery;

(2) Retrieving merchandise from inaccessible shelves or racks;

(3) Relocating activities to accessible locations;

(c) Multiscreen cinemas. If it is not readily achievable to remove

barriers to provide access by persons with mobility impairments to all of

the theaters of a multiscreen cinema, the cinema shall establish a film

rotation schedule that provides reasonable access for individuals who use

wheelchairs to all films. Reasonable notice shall be provided to the public

as to the location and time of accessible showings.

Section 36.305 Alternatives to barrier removal.

Section 36.305 specifies that where a public accommodation can

demonstrate that removal of a barrier is not readily achievable, the public

accommodation must make its goods, services, facilities, privileges,

advantages, or accommodations available through alternative methods, if such

methods are readily achievable. This requirement is based on section

302(b)(2)(A)(v) of the ADA.

For example, if it is not readily achievable for a retail store to

raise, lower, or remove shelves or to rearrange display racks to provide

accessible aisles, the store must, if readily achievable, provide a clerk

or take other alternative measures to retrieve inaccessible merchandise.

Similarly, if it is not readily achievable to ramp a long flight of stairs

leading to the front door of a restaurant or a pharmacy, the restaurant or

the pharmacy must take alternative measures, if readily achievable, such as

providing curb service or home delivery. If, within a restaurant, it is not

readily achievable to remove physical barriers to a certain section of a

restaurant, the restaurant must, where it is readily achievable to do so,

offer the same menu in an accessible area of the restaurant.

Where alternative methods are used to provide access, a public

accommodation may not charge an individual with a disability for the costs

associated with the alternative method (see 36.301(c)). Further analysis

of the issue of charging for alternative measures may be found in the

preamble discussion of 36.301(c).

In some circumstances, because of security considerations, some

alternative methods may not be readily achievable. The rule does not

require a cashier to leave his or her post to retrieve items for individuals

with disabilities, if there are no other employees on duty.

Section 36.305(c) of the proposed rule has been deleted and the

requirements have been included in a new 36.306. That section makes clear

that the alternative methods requirement does not mandate the provision of

personal devices, such as wheelchairs, or services of a personal nature.

In the final rule, 36.305(c) provides specific requirements regarding

alternatives to barrier removal in multiscreen cinemas. In some situations,

it may not be readily achievable to remove enough barriers to provide access

to all of the theaters of a multiscreen cinema. If that is the case,

36.305(c) requires the cinema to establish a film rotation schedule that

provides reasonable access for individuals who use wheelchairs to films

being presented by the cinema. It further requires that reasonable notice

be provided to the public as to the location and time of accessible

showings. Methods for providing notice include appropriate use of the

international accessibility symbol in a cinema's print advertising and the

addition of accessibility information to a cinema's recorded telephone

information line.

 

36.306 Personal devices and services.

This part does not require a public accommodation to provide its

customers, clients, or participants with personal devices, such as

wheelchairs; individually prescribed devices, such as prescription

eyeglasses or hearing aids; or services of a personal nature including

assistance in eating, toileting, or dressing.

 

Section 36.306 Personal devices and services.

The final rule includes a new 36.306, entitled "Personal devices and

services." Section 36.306 of the proposed rule, "Readily achievable and

undue burden: Factors to be considered," was deleted for the reasons

described in the preamble discussion of the definition of the term "readily

achievable" in 36.104. In place of 36.303(g) and 36.305(c) of the proposed

rule, which addressed the issue of personal devices and services in the

contexts of auxiliary aids and alternatives to barrier removal, 36.306

provides a general statement that the regulation does not require the

provision of personal devices and services. This section states that a

public accommodation is not required to provide its customers, clients, or

participants with personal devices, such as wheelchairs; individually

prescribed devices, such as prescription eyeglasses or hearing aids; or

services of a personal nature including assistance in eating, toileting, or

dressing.

This statement serves as a limitation on all the requirements of the

regulation. The personal devices and services limitation was intended to

have general application in the proposed rule in all contexts where it was

relevant. The final rule, therefore, clarifies this point by including a

general provision that will explicitly apply not just to auxiliary aids and

services and alternatives to barrier removal, but across-the-board to

include such relevant areas as modifications in policies, practices, and

procedures (36.302) and examinations and courses (36.309), as well.

The Department wishes to clarify that measures taken as alternatives

to barrier removal, such as retrieving items from shelves or providing curb

service or home delivery, are not to be considered personal services.

Similarly, minimal actions that may be required as modifications in

policies, practices, or procedures under 36.302, such as a waiter's removing

the cover from a customer's straw, a kitchen's cutting up food into smaller

pieces, or a bank's filling out a deposit slip, are not services of a

personal nature within the meaning of 36.306. (Of course, such

modifications may be required under 36.302 only if they are "reasonable.")

Similarly, this section does not preclude the short-term loan of personal

receivers that are part of an assistive listening system.

Of course, if personal services are customarily provided to the

customers or clients of a public accommodation, e.g., in a hospital or

senior citizen center, then these personal services should also be provided

to persons with disabilities using the public accommodation.

36.307 Accessible or special goods.

 

(a) This part does not require a public accommodation to alter its

inventory to include accessible or special goods that are designed for, or

facilitate use by, individuals with disabilities.

(b) A public accommodation shall order accessible or special goods at

the request of an individual with disabilities, if, in the normal course of

its operation, it makes special orders on request for unstocked goods, and

if the accessible or special goods can be obtained from a supplier with whom

the public accommodation customarily does business.

(c) Examples of accessible or special goods include items such as

brailled versions of books, books on audio cassettes, closed-captioned video

tapes, special sizes or lines of clothing, and special foods to meet

particular dietary needs.

Section 36.307 Accessible or special goods.

Section 36.307 establishes that the rule does not require a public

accommodation to alter its inventory to include accessible or special goods

with accessibility features that are designed for, or facilitate use by,

individuals with disabilities. As specified in 36.307(c), accessible or

special goods include such items as brailled versions of books, books on

audio-cassettes, closed captioned video tapes, special sizes or lines of

clothing, and special foods to meet particular dietary needs.

The purpose of the ADA's public accommodations requirements is to

ensure accessibility to the goods offered by a public accommodation, not to

alter the nature or mix of goods that the public accommodation has typically

provided. In other words, a bookstore, for example, must make its

facilities and sales operations accessible to individuals with disabilities,

but is not required to stock brailled or large print books. Similarly, a

video store must make its facilities and rental operations accessible, but

is not required to stock closed-captioned video tapes. The Department has

been made aware, however, that the most recent titles in video-tape rental

establishments are, in fact, closed captioned.

Although a public accommodation is not required by 36.307(a) to modify

its inventory, it is required by 36.307(b), at the request of an individual

with disabilities, to order accessible or special goods that it does not

customarily maintain in stock if, in the normal course of its operation, it

makes special orders for unstocked goods, and if the accessible or special

goods can be obtained from a supplier with whom the public accommodation

customarily does business. For example, a clothing store would be required

to order specially-sized clothing at the request of an individual with a

disability, if it customarily makes special orders for clothing that it does

not keep in stock, and if the clothing can be obtained from one of the

store's customary suppliers.

One commenter asserted that the proposed rule could be interpreted to

require a store to special order accessible or special goods of all types,

even if only one type is specially ordered in the normal course of its

business. The Department, however, intends for 36.307(b) to require special

orders only of those particular types of goods for which a public

accommodation normally makes special orders. For example, a book and

recording store would not have to specially order brailled books if, in the

normal course of its business, it only specially orders recordings and not

books.

 

36.308 Seating in assembly areas.

(a) Existing facilities. (1) To the extent that it is readily

achievable, a public accommodation in assembly areas shall--

(i) Provide a reasonable number of wheelchair seating spaces and seats

with removable aisle-side arm rests; and

(ii) Locate the wheelchair seating spaces so that they--

(A) Are dispersed throughout the seating area;

(B) Provide lines of sight and choice of admission prices comparable

to those for members of the general public;

(C) Adjoin an accessible route that also serves as a means of egress

in case of emergency; and

(D) Permit individuals who use wheelchairs to sit with family members

or other companions.

(2) If removal of seats is not readily achievable, a public

accommodation shall provide, to the extent that it is readily achievable to

do so, a portable chair or other means to permit a family member or other

companion to sit with an individual who uses a wheelchair.

 

(3) The requirements of paragraph (a) of this section shall not be

interpreted to exceed the standards for alterations in subpart D of this

part.

(b) New construction and alterations. The provision and location of

wheelchair seating spaces in newly constructed or altered assembly areas

shall be governed by the standards for new construction and alterations in

subpart D of this part.

Section 36.308 Seating in assembly areas.

Section 36.308 establishes specific requirements for removing barriers

to physical access in assembly areas, which include such facilities as

theaters, concert halls, auditoriums, lecture halls, and conference rooms.

This section does not address the provision of auxiliary aids or the removal

of communications barriers that are structural in nature. These

communications requirements are the focus of other provisions of the

regulation (see 36.303-36.304).

Individuals who use wheelchairs historically have been relegated to

inferior seating in the back of assembly areas separate from accompanying

family members and friends. The provisions of 36.308 are intended to

promote integration and equality in seating.

In some instances it may not be readily achievable for auditoriums or

theaters to remove seats to allow individuals with wheelchairs to sit next

to accompanying family members or friends. In these situations, the final

rule retains the requirement that the public accommodation provide portable

chairs or other means to allow the accompanying individuals to sit with the

persons in wheelchairs. Persons in wheelchairs should have the same

opportunity to enjoy movies, plays, and similar events with their families

and friends, just as other patrons do. The final rule specifies that

portable chairs or other means to permit family members or companions to sit

with individuals who use wheelchairs must be provided only when it is

readily achievable to do so.

In order to facilitate seating of wheelchair users who wish to transfer

to existing seating, paragraph (a)(1) of the final rule adds a requirement

that, to the extent readily achievable, a reasonable number of seats with

removable aisle-side armrests must be provided. Many persons in wheelchairs

are able to transfer to existing seating with this relatively minor

modification. This solution avoids the potential safety hazard created by

the use of portable chairs and fosters integration. The final ADA

Accessibility Guidelines incorporated by subpart D (ADAAG) also add a

requirement regarding aisle seating that was not in the proposed guidelines.

In situations when a person in a wheelchair transfers to existing seating,

the public accommodation shall provide assistance in handling the wheelchair

of the patron with the disability.

Likewise, consistent with ADAAG, the final rule adds in

36.308(a)(1)(ii)(B) a requirement that, to the extent readily achievable,

wheelchair seating provide lines of sight and choice of admission prices

comparable to those for members of the general public.

Finally, because Congress intended that the requirements for barrier

removal in existing facilities be substantially less rigorous than those

required for new construction and alterations, the final rule clarifies in

36.308(a)(3) that in no event can the requirements for existing facilities

be interpreted to exceed the standards for alterations under ADAAG. For

example, 4.33 of ADAAG only requires wheelchair spaces to be provided in

more than one location when the seating capacity of the assembly area

exceeds 300. Therefore, paragraph (a) of 36.308 may not be interpreted to

require readily achievable dispersal of wheelchair seating in assembly areas

with 300 or fewer seats. Similarly, 4.l.3(19) of ADAAG requires six

accessible wheelchair locations in an assembly area with 301 to 500 seats.

The reasonable number of wheelchair locations required by paragraph (a),

therefore, may be less than six, but may not be interpreted to exceed six.

Proposed Section 36.309 Purchase of furniture and equipment.

Section 36.309 of the proposed rule would have required that newly

purchased furniture or equipment made available for use at a place of public

accommodation be accessible, to the extent such furniture or equipment is

available, unless this requirement would fundamentally alter the goods,

services, facilities, privileges, advantages, or accommodations offered, or

would not be readily achievable. Proposed 36.309 has been omitted from the

final rule because the Department has determined that its requirements are

more properly addressed under other sections, and because there are

currently no appropriate accessibility standards addressing many types of

furniture and equipment.

Some types of equipment will be required to meet the accessibility

requirements of subpart D. For example, ADAAG establishes technical and

scoping requirements in new construction and alterations for automated

teller machines and telephones. Purchase or modification of equipment is

required in certain instances by the provisions in 36.201 and 36.202. For

example, an arcade may need to provide accessible video machines in order

to ensure full and equal enjoyment of the facilities and to provide an

opportunity to participate in the services and facilities it provides. The

barrier removal requirements of 36.304 will apply as well to furniture and

equipment (lowering shelves, rearranging furniture, adding braille labels

to a vending machine).

 

36.309 Examinations and courses.

(a) General. Any private entity that offers examinations or courses

related to applications, licensing, certification, or credentialing for

secondary or postsecondary education, professional, or trade purposes shall

offer such examinations or courses in a place and manner accessible to

persons with disabilities or offer alternative accessible arrangements for

such individuals.

(b) Examinations. (1) Any private entity offering an examination

covered by this section must assure that --

(i) The examination is selected and administered so as to best ensure

that, when the examination is administered to an individual with a

disability that impairs sensory, manual, or speaking skills, the examination

results accurately reflect the individual's aptitude or achievement level

or whatever other factor the examination purports to measure, rather than

reflecting the individual's impaired sensory, manual, or speaking skills

(except where those skills are the factors that the examination purports to

measure);

(ii) An examination that is designed for individuals with impaired

sensory, manual, or speaking skills is offered at equally convenient

locations, as often, and in as timely a manner as are other examinations;

and

(iii) The examination is administered in facilities that are

accessible to individuals with disabilities or alternative accessible

arrangements are made.

(2) Required modifications to an examination may include changes in

the length of time permitted for completion of the examination and

adaptation of the manner in which the examination is given.

(3) A private entity offering an examination covered by this section

shall provide appropriate auxiliary aids for persons with impaired sensory,

manual, or speaking skills, unless that private entity can demonstrate that

offering a particular auxiliary aid would fundamentally alter the

measurement of the skills or knowledge the examination is intended to test

or would result in an undue burden. Auxiliary aids and services required

by this section may include taped examinations, interpreters or other

effective methods of making orally delivered materials available to

individuals with hearing impairments, brailled or large print examinations

and answer sheets or qualified readers for individuals with visual

impairments or learning disabilities, transcribers for individuals with

manual impairments, and other similar services and actions.

(4) Alternative accessible arrangements may include, for example,

provision of an examination at an individual's home with a proctor if

accessible facilities or equipment are unavailable. Alternative

arrangements must provide comparable conditions to those provided for

nondisabled individuals.

(c) Courses. (1) Any private entity that offers a course covered by

this section must make such modifications to that course as are necessary

to ensure that the place and manner in which the course is given are

accessible to individuals with disabilities.

(2) Required modifications may include changes in the length of time

permitted for the completion of the course, substitution of specific

requirements, or adaptation of the manner in which the course is conducted

or course materials are distributed.

(3) A private entity that offers a course covered by this section

shall provide appropriate auxiliary aids and services for persons with

impaired sensory, manual, or speaking skills, unless the private entity can

demonstrate that offering a particular auxiliary aid or service would

fundamentally alter the course or would result in an undue burden.

Auxiliary aids and services required by this section may include taped

texts, interpreters or other effective methods of making orally delivered

materials available to individuals with hearing impairments, brailled or

large print texts or qualified readers for individuals with visual

impairments and learning disabilities, classroom equipment adapted for use

by individuals with manual impairments, and other similar services and

actions.

(4) Courses must be administered in facilities that are accessible to

individuals with disabilities or alternative accessible arrangements must

be made.

(5) Alternative accessible arrangements may include, for example,

provision of the course through videotape, cassettes, or prepared notes.

Alternative arrangements must provide comparable conditions to those

provided for nondisabled individuals.

Section 36.309 Examinations and courses.

Section 36.309(a) sets forth the general rule that any private entity

that offers examinations or courses related to applications, licensing,

certification, or credentialing for secondary or postsecondary education,

professional, or trade purposes shall offer such examinations or courses in

a place

and manner accessible to persons with disabilities or offer alternative

accessible arrangements for such individuals.

Paragraph (a) restates section 309 of the Americans with Disabilities

Act. Section 309 is intended to fill the gap that is created when

licensing, certification, and other testing authorities are not covered by

section 504 of the Rehabilitation Act or title II of the ADA. Any such

authority that is covered by section 504, because of the receipt of Federal

money, or by title II, because it is a function of a State or local

government, must make all of its programs accessible to persons with

disabilities, which includes physical access as well as modifications in the

way the test is administered, e.g., extended time, written instructions, or

assistance of a reader.

Many licensing, certification, and testing authorities are not covered

by section 504, because no Federal money is received; nor are they covered

by title II of the ADA because they are not State or local agencies.

However, States often require the licenses provided by such authorities in

order for an individual to practice a particular profession or trade. Thus,

the provision was included in the ADA in order to assure that persons with

disabilities are not foreclosed from educational, professional, or trade

opportunities because an examination or course is conducted in an

inaccessible site or without needed modifications.

As indicated in the "Application" section of this part (36.102),

36.309 applies to any private entity that offers the specified types of

examinations or courses. This is consistent with section 309 of the

Americans with Disabilities Act, which states that the requirements apply

to "any person" offering examinations or courses.

The Department received a large number of comments on this section,

reflecting the importance of ensuring that the key gateways to education and

employment are open to individuals with disabilities. The most frequent

comments were objections to the fundamental alteration and undue burden

provisions in 36.309 (b)(3) and (c)(3) and to allowing courses and

examinations to be provided through alternative accessible arrangements,

rather than in an integrated setting.

Although section 309 of the Act does not refer to a fundamental

alteration or undue burden limitation, those limitations do appear in

section 302(b)(2)(A)(iii) of the Act, which establishes the obligation of

public accommodations to provide auxiliary aids and services. The

Department, therefore, included it in the paragraphs of 36.309 requiring the

provision of auxiliary aids. One commenter argued that similar limitations

should apply to all of the requirements of 36.309, but the Department did

not consider this extension appropriate.

Commenters who objected to permitting "alternative accessible

arrangements" argued that such arrangements allow segregation and should not

be permitted, unless they are the least restrictive available alternative,

for example, for someone who cannot leave home. Some commenters made a

distinction between courses, where interaction is an important part of the

educational experience, and examinations, where it may be less important.

Because the statute specifically authorizes alternative accessible

arrangements as a method of meeting the requirements of section 309, the

Department has not adopted this suggestion. The Department notes, however,

that, while examinations of the type covered by 36.309 may not be covered

elsewhere in the regulation, courses will generally be offered in a "place

of education," which is included in the definition of "place of public

accommodation" in 36.104, and, therefore, will be subject to the integrated

setting requirement of 36.203.

Section 36.309(b) sets forth specific requirements for examinations.

Examinations covered by this section would include a bar exam or the

Scholastic Aptitude Test prepared by the Educational Testing Service.

Paragraph (b)(l) is adopted from the Department of Education's section 504

regulation on admission tests to postsecondary educational programs (34 CFR

104.42(b)(3)). Paragraph (b)(1)(i) requires that a private entity offering

an examination covered by the section must assure that the examination is

selected and administered so as to best ensure that the examination

accurately reflects an individual's aptitude or achievement level or other

factor the examination purports to measure, rather than reflecting the

individual's impaired sensory, manual, or speaking skills (except where

those skills are the factors that the examination purports to measure).

 

Paragraph (b)(1)(ii) requires that any examination specially designed for

individuals with disabilities be offered as often and in as timely a manner

as other examinations. Some commenters noted that persons with disabilities

may be required to travel long distances when the locations for examinations

for individuals with disabilities are limited, for example, to only one city

in a State instead of a variety of cities. The Department has therefore

revised this paragraph to add a requirement that such examinations be

offered at locations that are as convenient as the location of other

examinations.

Commenters representing organizations that administer tests wanted to

be able to require individuals with disabilities to provide advance notice

and appropriate documentation, at the applicants' expense, of their

disabilities and of any modifications or aids that would be required. The

Department agrees that such requirements are permissible, provided that they

are not unreasonable and that the deadline for such notice is no earlier

than the deadline for others applying to take the examination. Requiring

individuals with disabilities to file earlier applications would violate the

requirement that examinations designed for individuals with disabilities be

offered in as timely a manner as other examinations.

Examiners may require evidence that an applicant is entitled to

modifications or aids as required by this section, but requests for

documentation must be reasonable and must be limited to the need for the

modification or aid requested. Appropriate documentation might include a

letter from a physician or other professional, or evidence of a prior

diagnosis or accommodation, such as eligibility for a special education

program. The applicant may be required to bear the cost of providing such

documentation, but the entity administering the examination cannot charge

the applicant for the cost of any modifications or auxiliary aids, such as

interpreters, provided for the examination.

Paragraph (b)(1)(iii) requires that examinations be administered in

facilities that are accessible to individuals with disabilities or

alternative accessible arrangements are made.

Paragraph (b)(2) gives examples of modifications to examinations that

may be necessary in order to comply with this section. These may include

providing more time for completion of the examination or a change in the

manner of giving the examination, e.g., reading the examination to the

individual.

Paragraph (b)(3) requires the provision of auxiliary aids and

services, unless the private entity offering the examination can demonstrate

that offering a particular auxiliary aid would fundamentally alter the

examination or result in an undue burden. Examples of auxiliary aids

include taped examinations, interpreters or other effective methods of

making aurally delivered materials available to individuals with hearing

impairments, readers for individuals with visual impairments or learning

disabilities, and other similar services and actions. The suggestion that

individuals with learning disabilities may need readers is included,

although it does not appear in the Department of Education regulation,

because, in fact, some individuals with learning disabilities have visual

perception problems and would benefit from a reader.

Many commenters pointed out the importance of ensuring that

modifications provide the individual with a disability an equal opportunity

to demonstrate his or her knowledge or ability. For example, a reader who

is unskilled or lacks knowledge of specific terminology used in the

examination may be unable to convey the information in the questions or to

follow the applicant's instructions effectively. Commenters pointed out

that, for persons with visual impairments who read braille, braille provides

the closest functional equivalent to a printed test. The Department has,

therefore, added Brailled examinations to the examples of auxiliary aids and

services that may be required. For similar reasons, the Department also

added to the list of examples of auxiliary aids and services large print

examinations and answer sheets; "qualified" readers; and transcribers to

write answers.

A commenter suggested that the phrase "fundamentally alter the

examination" in this paragraph of the proposed rule be revised to more

accurately reflect the function affected. In the final rule the Department

has substituted the phrase "fundamentally alter the measurement of the

skills or knowledge the examination is intended to test."

 

Paragraph (b)(4) gives examples of alternative accessible arrangements.

For instance, the private entity might be required to provide the

examination at an individual's home with a proctor. Alternative

arrangements must provide conditions for individuals with disabilities that

are comparable to the conditions under which other individuals take the

examinations. In other words, an examination cannot be offered to an

individual with a disability in a cold, poorly lit basement, if other

individuals are given the examination in a warm, well lit classroom.

Some commenters who provide examinations for licensing or certification

for particular occupations or professions urged that they be permitted to

refuse to provide modifications or aids for persons seeking to take the

examinations if those individuals, because of their disabilities, would be

unable to perform the essential functions of the profession or occupation

for which the examination is given, or unless the disability is reasonably

determined in advance as not being an obstacle to certification. The

Department has not changed its rule based on this comment. An examination

is one stage of a licensing or certification process. An individual should

not be barred from attempting to pass that stage of the process merely

because he or she might be unable to meet other requirements of the process.

If the examination is not the first stage of the qualification process, an

applicant may be required to complete the earlier stages prior to being

admitted to the examination. On the other hand, the applicant may not be

denied admission to the examination on the basis of doubts about his or her

abilities to meet requirements that the examination is not designed to test.

 

Paragraph (c) sets forth specific requirements for courses. Paragraph

(c)(1) contains the general rule that any course covered by this section

must be modified to ensure that the place and manner in which the course is

given is accessible. Paragraph (c)(2) gives examples of possible

modifications that might be required, including extending the time permitted

for completion of the course, permitting oral rather than written delivery

of an assignment by a person with a visual impairment, or adapting the

manner in which the course is conducted (i.e., providing cassettes of class

handouts to an individual with a visual impairment). In response to

comments, the Department has added to the examples in paragraph (c)(2)

specific reference to distribution of course materials. If course materials

are published and available from other sources, the entity offering the

course may give advance notice of what materials will be used so as to allow

an individual to obtain them in braille or on tape, but materials provided

by the course offerer must be made available in alternative formats for

individuals with disabilities.

 

In language similar to that of paragraph (b), paragraph (c)(3) requires

auxiliary aids and services, unless a fundamental alteration or undue burden

would result, and paragraph (c)(4) requires that courses be administered in

accessible facilities. Paragraph (c)(5) gives examples of alternative

accessible arrangements. These may include provision of the course through

videotape, cassettes, or prepared notes. Alternative arrangements must

provide comparable conditions to those provided to others, including similar

lighting, room temperature, and the like. An entity offering a variety of

courses, to fulfill continuing education requirements for a profession, for

example, may not limit the selection or choice of courses available to

individuals with disabilities.

36.310 Transportation provided by public accommodations.

(a) General. (1) A public accommodation that provides transportation

services, but that is not primarily engaged in the business of transporting

people, is subject to the general and specific provisions in subparts B, C,

and D of this part for its transportation operations, except as provided in

this section.

(2) Examples. Transportation services subject to this section

include, but are not limited to, shuttle services operated between

transportation terminals and places of public accommodation, customer

shuttle bus services operated by private companies and shopping centers,

student transportation systems, and transportation provided within

recreational facilities such as stadiums, zoos, amusement parks, and ski

resorts.

(b) Barrier removal. A public accommodation subject to this section

shall remove transportation barriers in existing vehicles and rail passenger

cars used for transporting individuals (not including barriers that can only

be removed through the retrofitting of vehicles or rail passenger cars by

the installation of a hydraulic or other lift) where such removal is readily

achievable.

(c) Requirements for vehicles and systems. A public accommodation

subject to this section shall comply with the requirements pertaining to

vehicles and transportation systems in the regulations issued by the

Secretary of Transportation pursuant to section 306 of the Act.

Section 36.310 Transportation provided by public accommodations.

Section 36.310 contains specific provisions relating to public

accommodations that provide transportation to their clients or customers.

This section has been substantially revised in order to coordinate the

requirements of this section with the requirements applicable to these

transportation systems that will be contained in the regulations issued by

the Secretary of Transportation pursuant to section 306 of the ADA, to be

codified at 49 CFR part 37. The Department notes that, although the

responsibility for issuing regulations applicable to transportation systems

operated by public accommodations is divided between this Department and the

Department of Transportation, enforcement authority is assigned only to the

Department of Justice.

The Department received relatively few comments on this section of the

proposed rule. Most of the comments addressed issues that are not

specifically addressed in this part, such as the standards for accessible

vehicles and the procedure for determining whether equivalent service is

provided. Those standards will be contained in the regulation issued by the

Department of Transportation. Other commenters raised questions about the

types of transportation that will be subject to this section. In response

to these inquiries, the Department has revised the list of examples

contained in the regulation.

Paragraph (a)(1) states the general rule that covered public

accommodations are subject to all of the specific provisions of subparts B,

C, and D, except as provided in 36.310. Examples of operations covered by

the requirements are listed in paragraph (a)(2). The stated examples

include hotel and motel airport shuttle services, customer shuttle bus

services operated by private companies and shopping centers, student

transportation, and shuttle operations of recreational facilities such as

stadiums, zoos, amusement parks, and ski resorts. This brief list is not

exhaustive. The section applies to any fixed route or demand responsive

transportation system operated by a public accommodation for the benefit of

its clients or customers. The section does not apply to transportation

services provided only to employees. Employee transportation will be

subject to the regulations issued by the Equal Employment Opportunity

Commission to implement title I of the Act. However, if employees and

customers or clients are served by the same transportation system, the

provisions of this section will apply.

 

Paragraph (b) specifically provides that a public accommodation shall

remove transportation barriers in existing vehicles to the extent that it

is readily achievable to do so,

but that the installation of hydraulic or other lifts is not required.

Paragraph (c) provides that public accommodations subject to this

section shall comply with the requirements for transportation vehicles and

systems contained in the regulations issued by the Secretary of

Transportation.

 

36.311-36.400 [Reserved]

Subpart D--New Construction and Alterations

 

Subpart D -- New Construction and Alterations.

Subpart D implements section 303 of the Act, which requires that newly

constructed or altered places of public accommodation or commercial

facilities be readily accessible to and usable by individuals with

disabilities. This requirement contemplates a high degree of convenient

access. It is intended to ensure that patrons and employees of places of

public accommodation and employees of commercial facilities are able to get

to, enter, and use the facility.

Potential patrons of places of public accommodation, such as retail

establishments, should be able to get to a store, get into the store, and

get to the areas where goods are being provided. Employees should have the

same types of access, although those individuals require access to and

around the employment area as well as to the area in which goods and

services are provided.

The ADA is geared to the future -- its goal being that, over time,

access will be the rule, rather than the exception. Thus, the Act only

requires modest expenditures, of the type addressed in 36.304 of this part,

to provide access to existing facilities not otherwise being altered, but

requires all new construction and alterations to be accessible.

The Act does not require new construction or alterations; it simply

requires that, when a public accommodation or other private entity

undertakes the construction or alteration of a facility subject to the Act,

the newly constructed or altered facility must be made accessible. This

subpart establishes the requirements for new construction and alterations.

As explained under the discussion of the definition of "facility,"

36.104, pending development of specific requirements, the Department will

not apply this subpart to places of public accommodation located in mobile

units, boats, or other conveyances.

 

36.401 New construction.

(a) General. (1) Except as provided in paragraphs (b) and (c) of

this section, discrimination for purposes of this part includes a failure

to design and construct facilities for first occupancy after January 26,

l993, that are readily accessible to and usable by individuals with

disabilities.

(2) For purposes of this section, a facility is designed and

constructed for first occupancy after January 26, l993, only--

(i) If the last application for a building permit or permit extension

for the facility is certified to be complete, by a State, County, or local

government after January 26, l992 (or, in those jurisdictions where the

government does not certify completion of applications, if the last

application for a building permit or permit extension for the facility is

received by the State, County, or local government after January 26, 1992);

and

(ii) If the first certificate of occupancy for the facility is issued

after January 26, l993.

(b) Commercial facilities located in private residences.

(1) When a commercial facility is located in a private residence, the

portion of the residence used exclusively as a residence is not covered by

this subpart, but that portion used exclusively in the operation of the

commercial facility or that portion used both for the commercial facility

and for residential purposes is covered by the new construction and

alterations requirements of this subpart.

(2) The portion of the residence covered under paragraph (b)(1) of

this section extends to those elements used to enter the commercial

facility, including the homeowner's front sidewalk, if any, the door or

entryway, and hallways; and those portions of the residence, interior or

exterior, available to or used by employees or visitors of the commercial

facility, including restrooms.

(c) Exception for structural impracticability. (1) Full compliance

with the requirements of this section is not required where an entity can

demonstrate that it is structurally impracticable to meet the requirements.

Full compliance will be considered structurally impracticable only in those

rare circumstances when the unique characteristics of terrain prevent the

incorporation of accessibility features.

(2) If full compliance with this section would be structurally

impracticable, compliance with this section is required to the extent that

it is not structurally impracticable. In that case, any portion of the

facility that can be made accessible shall be made accessible to the extent

that it is not structurally impracticable.

(3) 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.

(d) Elevator exemption. (1) For purposes of this

paragraph (d) --

(i) Professional office of a health care provider means a location

where a person or entity regulated by a State to provide professional

services related to the physical or mental health of an individual makes

such services available to the public. The facility housing the

"professional office of a health care provider" only includes floor levels

housing at least one health care provider, or any floor level designed or

intended for use by at least one health care provider.

(ii) Shopping center or shopping mall means--

(A) A building housing five or more sales or rental establishments;

or

(B) A series of buildings on a common site, either under common

ownership or common control or developed either as one project or as a

series of related projects, housing five or more sales or rental

establishments. For purposes of this section, places of public

accommodation of the types listed in paragraph (5) of the definition of

"place of public accommodation" in section 36.104 are considered sales or

rental establishments. The facility housing a "shopping center or shopping

mall" only includes floor levels housing at least one sales or rental

establishment, or any floor level designed or intended for use by at least

one sales or rental establishment.

(2) This section does not require the installation of an elevator in

a facility that is less than three stories or has less than 3000 square feet

per story, except with respect to any facility that houses one or more of

the following:

(i) A shopping center or shopping mall, or a professional office of

a health care provider.

(ii) A terminal, depot, or other station used for specified public

transportation, or an airport passenger terminal. In such a facility, any

area housing passenger services, including boarding and debarking, loading

and unloading, baggage claim, dining facilities, and other common areas open

to the public, must be on an accessible route from an accessible entrance.

(3) The elevator exemption set forth in this paragraph (d) does not

obviate or limit in any way the obligation to comply with the other

accessibility requirements established in paragraph (a) of this section.

For example, in a facility that houses a shopping center or shopping mall,

or a professional office of a health care provider, the floors that are

above or below an accessible ground floor and that do not house sales or

rental establishments or a professional office of a health care provider,

must meet the requirements of this section but for the elevator.

Section 36.401 New construction.

General

Section 36.401 implements the new construction requirements of the ADA.

Section 303(a)(l) of the Act provides that discrimination for purposes of

section 302(a) of the Act includes a failure to design and construct

facilities for first occupancy later than 30 months after the date of

enactment (i.e., after January 26, 1993) that are readily accessible to and

usable by individuals with disabilities.

Paragraph 36.40l(a)(l) restates the general requirement for accessible

new construction. The proposed rule stated that "any public accommodation

or other private entity responsible for design and construction" must ensure

that facilities conform to this requirement. Various commenters suggested

that the proposed language was not consistent with the statute because it

substituted "private entity responsible for design and construction" for the

statutory language; because it did not address liability on the part of

architects, contractors, developers, tenants, owners, and other entities;

and because it limited the liability of entities responsible for commercial

facilities. In response, the Department has revised this paragraph to

repeat the language of section 303(a) of the ADA. The Department will

interpret this section in a manner consistent with the intent of the statute

and with the nature of the responsibilities of the various entities for

design, for construction, or for both.

Designed and constructed for first occupancy

According to paragraph (a)(2), a facility is subject to the new

construction requirements only if a completed application for a building

permit or permit extension is filed after January 26, 1992, and the facility

is occupied after January 26, 1993.

The proposed rule set forth for comment two alternative ways by which

to determine what facilities are subject to the Act and what standards

apply. Paragraph (a)(2) of the final rule is a slight variation on Option

One in the proposed rule. The reasons for the Department's choice of

Option One are discussed later in this section.

Paragraph (a)(2) acknowledges that Congress did not contemplate having

actual occupancy be the sole trigger for the accessibility requirements,

because the statute prohibits a failure to "design and construct for first

occupancy," rather than requiring accessibility in facilities actually

occupied after a particular date.

The commenters overwhelmingly agreed with the Department's proposal to

use a date certain; many cited the reasons given in the preamble to the

proposed rule. First, it is helpful for designers and builders to have a

fixed date for accessible design, so that they can determine accessibility

requirements early in the planning and design stage. It is difficult to

determine accessibility requirements in anticipation of the actual date of

first occupancy because of unpredictable and uncontrollable events (e.g.,

strikes affecting suppliers or labor, or natural disasters) that may delay

occupancy. To redesign or reconstruct portions of a facility if it begins

to appear that occupancy will be later than anticipated would be quite

costly. A fixed date also assists those responsible for enforcing, or

monitoring compliance with, the statute, and those protected by it.

 

The Department considered using as a trigger date for application of

the accessibility standards the date on which a permit is granted. The

Department chose instead the date on which a complete permit application is

certified as received by the appropriate government entity. Almost all

commenters agreed with this choice of a trigger date. This decision is

based partly on information that several months or even years can pass

between application for a permit and receipt of a permit. Design is

virtually complete at the time an application is complete (i.e., certified

to contain all the information required by the State, county, or local

government). After an application is filed, delays may occur before the

permit is granted due to numerous factors (not necessarily relating to

accessibility): for example, hazardous waste discovered on the property,

flood plain requirements, zoning disputes, or opposition to the project from

various groups. These factors should not require redesign for accessibility

if the application was completed before January 26, 1992. However, if the

facility must be redesigned for other reasons, such as a change in density

or environmental preservation, and the final permit is based on a new

application, the rule would require accessibility if that application was

certified complete after January 26, 1992.

The certification of receipt of a complete application for a building

permit is an appropriate point in the process because certifications are

issued in writing by governmental authorities. In addition, this approach

presents a clear and objective standard.

However, a few commenters pointed out that in some jurisdictions it is

not possible to receive a "certification" that an application is complete,

and suggested that in those cases the fixed date should be the date on which

an application for a permit is received by the government agency. The

Department has included such a provision in 36.401(a)(2)(i).

The date of January 26, 1992, is relevant only with respect to the last

application for a permit or permit extension for a facility. Thus, if an

entity has applied for only a "foundation" permit, the date of that permit

application has no effect, because the entity must also apply for and

receive a permit at a later date for the actual superstructure. In this

case, it is the date of the later application that would control, unless

construction is not completed within the time allowed by the permit, in

which case a third permit would be issued and the date of the application

for that permit would be determinative for purposes of the rule.

Choice of Option One for defining "designed and constructed for first

occupancy"

Under the option the Department has chosen for determining

applicability of the new construction standards, a building would be

considered to be "for first occupancy" after January 26, 1993, only (1) if

the last application for a building permit or permit extension for the

facility is certified to be complete (or, in some jurisdictions, received)

by a State, county, or local government after January 26, 1992, and (2) if

the first certificate of occupancy is issued after January 26, 1993. The

Department also asked for comment on an Option Two, which would have imposed

new construction requirements if a completed application for a building

permit or permit extension was filed after the enactment of the ADA (July

26, 1990), and the facility was occupied after January 26, 1993.

The request for comment on this issue drew a large number of comments

expressing a wide range of views. Most business groups and some disability

rights groups favored Option One, and some business groups and most

disability rights groups favored Option Two. Individuals and government

entities were equally divided; several commenters proposed other options.

 

Those favoring Option One pointed out that it is more reasonable in that it

allows time for those subject to the new construction requirements to

anticipate those requirements and to receive technical assistance pursuant

to the Act. Numerous commenters said that time frames for designing and

constructing some types of facilities (for example, health care facilities)

can range from two to four years or more. They expressed concerns that

Option Two, which would apply to some facilities already under design or

construction as of the date the Act was signed, and to some on which

construction began shortly after enactment, could result in costly redesign

or reconstruction of those facilities. In the same vein, some Option One

supporters found Option Two objectionable on due process grounds. In their

view, Option Two would mean that in July 1991 (upon issuance of the final

DOJ rule) the responsible entities would learn that ADA standards had been

in effect since July 26, 1990, and this would amount to retroactive

application of standards. Numerous commenters characterized Option Two as

having no support in the statute and Option One as being more consistent

with congressional intent.

Those who favored Option Two pointed out that it would include more

facilities within the coverage of the new construction standards. They

argued that because similar accessibility requirements are in effect under

State laws, no hardship would be imposed by this option. Numerous

commenters said that hardship would also be eliminated in light of their

view that the ADA requires compliance with the Uniform Federal Accessibility

Standards (UFAS) until issuance of DOJ standards. Those supporting Option

Two claimed that it was more consistent with the statute and its legislative

history.

The Department has chosen Option One rather than Option Two, primarily

on the basis of the language of three relevant sections of the statute.

First, section 303(a) requires compliance with accessibility standards set

forth, or incorporated by reference in, regulations to be issued by the

Department of Justice. Standing alone, this section cannot be read to

require compliance with the Department's standards before those standards

are issued (through this rulemaking). Second, according to section 310 of

the statute, section 303 becomes effective on January 26, 1992. Thus,

section 303 cannot impose requirements on the design of buildings before

that date. Third, while section 306(d) of the Act requires compliance with

UFAS if final regulations have not been issued, that provision cannot

reasonably be read to take effect until July 26, 1991, the date by which the

Department of Justice must issue final regulations under title III.

Option Two was based on the premise that the interim standards in

section 306(d) take effect as of the ADA's enactment (July 26, 1990), rather

than on the date by which the Department of Justice regulations are due to

be issued (July 26, 1991). The initial clause of section 306(d)(1) itself

is silent on this question:

If final regulations have not been issued pursuant to this section, for new

construction for which a . . . building permit is obtained prior to the

issuance of final regulations . . . [interim standards apply].

The approach in Option Two relies partly on the language of section 310

of the Act, which provides that section 306, the interim standards

provision, takes effect on the date of enactment. Under this interpretation

the interim standards provision would prevail over the operative provision,

section 303, which requires that new construction be accessible and which

becomes effective January 26, 1992. This approach would also require

construing the language of section 306(d)(1) to take effect before the

Department's standards are due to be issued. The preferred reading of

section 306 is that it would require that, if the Department's final

standards had not been issued by July 26, 1991, UFAS would apply to certain

buildings until such time as the Department's standards were issued.

 

General Substantive Requirements of the New Construction Provisions

The rule requires, as does the statute, that covered newly constructed

facilities be readily accessible to and usable by individuals with

disabilities. The phrase "readily accessible to and usable by individuals

with disabilities" is a term that, in slightly varied formulations, has been

used in the Architectural Barriers Act of 1968, the Fair Housing Act, the

regulations implementing section 504 of the Rehabilitation Act of 1973, and

current accessibility standards. It means, with respect to a facility or

a portion of a facility, that it can be approached, entered, and used by

individuals with disabilities (including mobility, sensory, and cognitive

impairments) easily and conveniently. A facility that is constructed to

meet the requirements of the rule's accessibility standards will be

considered readily accessible and usable with respect to construction. To

the extent that a particular type or element of a facility is not

specifically addressed by the standards, the language of this section is the

safest guide.

A private entity that renders an "accessible" building inaccessible in

its operation, through policies or practices, may be in violation of section

302 of the Act. For example, a private entity can render an entrance to a

facility inaccessible by keeping an accessible entrance open only during

certain hours (whereas the facility is available to others for a greater

length of time). A facility could similarly be rendered inaccessible if a

person with disabilities is significantly limited in her or his choice of

a range of accommodations.

Ensuring access to a newly constructed facility will include providing

access to the facility from the street or parking lot, to the extent the

responsible entity has control over the route from those locations. In some

cases, the private entity will have no control over access at the point

where streets, curbs, or sidewalks already exist, and in those instances the

entity is encouraged to request modifications to a sidewalk, including

installation of curb cuts, from a public entity responsible for them.

However, as some commenters pointed out, there is no obligation for a

private entity subject to title III of the ADA to seek or ensure compliance

by a public entity with title II. Thus, although a locality may have an

obligation under title II of the Act to install curb cuts at a particular

location, that responsibility is separate from the private entity's title

III obligation, and any involvement by a private entity in seeking

cooperation from a public entity is purely voluntary in this context.

Work Areas

Proposed paragraph 36.401(b) addressed access to employment areas,

rather than to the areas where goods or services are being provided. The

preamble noted that the proposed paragraph provided guidance for new

construction and alterations until more specific guidance was issued by the

ATBCB and reflected in this Department's regulation. The entire paragraph

has been deleted from this section in the final rule. The concepts of

paragraphs (b) (1), (2), and (5) of the proposed rule are included, with

modifications and expansion, in ADAAG. Paragraphs (3) and (4) of the

proposed rule, concerning fixtures and equipment, are not included in the

rule or in ADAAG.

Some commenters asserted that questions relating to new construction

and alterations of work areas should be addressed by the EEOC under title

I, as employment concerns. However, the legislative history of the statute

clearly indicates that the new construction and alterations requirements of

title III were intended to ensure accessibility of new facilities to all

individuals, including employees. The language of section 303 sweeps

broadly in its application to all public accommodations and commercial

facilities. EEOC's title I regulations will address accessibility

requirements that come into play when "reasonable accommodation" to

individual employees or applicants with disabilities is mandated under title

I.

 

The issues dealt with in proposed 36.401(b)(1) and (2) are now

addressed in ADAAG section 4.1.1(3). The Department's proposed paragraphs

would have required that areas that will be used only by employees as work

stations be constructed so that individuals with disabilities could

approach, enter, and exit the areas. They would not have required that all

individual work stations be constructed or equipped (for example, with

shelves that are accessible or adaptable) to be accessible. This approach

was based on the theory that, as long as an employee with disabilities could

enter the building and get to and around the employment area, modifications

in a particular work station could be instituted as a "reasonable

accommodation" to that employee if the modifications were necessary and they

did not constitute an undue hardship.

Almost all of the commenters agreed with the proposal to require access

to a work area but not to require accessibility of each individual work

station. This principle is included in ADAAG 4.1.1(3). Several of the

comments related to the requirements of the proposed ADAAG and have been

addressed in the accessibility standards.

Proposed paragraphs (b)(3) and (4) would have required that

consideration be given to placing fixtures and equipment at accessible

heights in the first instance, and to purchasing new equipment and fixtures

that are adjustable. These paragraphs have not been included in the final

rule because the rule in most instances does not establish accessibility

standards for purchased equipment. (See discussion elsewhere in the

preamble of proposed 36.309.) While the Department encourages entities to

consider providing accessible or adjustable fixtures and equipment for

employees, this rule does not require them to do so.

Paragraph (b)(5) of proposed 36.40l clarified that proposed paragraph

(b) did not limit the requirement that employee areas other than individual

work stations must be accessible. For example, areas that are employee

"common use" areas and are not solely used as work stations (e.g., employee

lounges, cafeterias, health units, exercise facilities) are treated no

differently under this regulation than other parts of a building; they must

be constructed or altered in compliance with the accessibility standards.

This principle is not stated in 36.401 but is implicit in the requirements

of this section and ADAAG.

Commercial Facilities in Private Residences

Section 36.401(b) of the final rule is a new provision relating to

commercial facilities located in private residences. The proposed rule

addressed these requirements in the preamble to 36.207, "Places of public

accommodation located in private residences." The preamble stated that the

approach for commercial facilities would be the same as that for places of

public accommodation, i.e., those portions used exclusively as a commercial

facility or used as both a commercial facility and for residential purposes

would be covered. Because commercial facilities are only subject to new

construction and alterations requirements, however, the covered portions

would only be subject to subpart D. This approach is reflected in

36.401(b)(1).

The Department is aware that the statutory definition of "commercial

facility" excludes private residences because they are "expressly exempted

from coverage under the Fair Housing Act of 1968, as amended." However, the

Department interprets that exemption as applying only to facilities that are

exclusively residential. When a facility is used as both a residence and

a commercial facility, the exemption does not apply.

Paragraph (b)(2) is similar to the new paragraph (b) under 36.207,

"Places of public accommodation located in private residences." The

paragraph clarifies that the covered portion includes not only the space

used as a commercial facility, but also the elements used to enter the

commercial facility, e.g., the homeowner's front sidewalk, if any; the

doorway; the hallways; the restroom, if used by employees or visitors of the

commercial facility; and any other portion of the residence, interior or

exterior, used by employees or visitors of the commercial facility.

As in the case of public accommodations located in private residences,

the new construction standards only apply to the extent that a portion of

the residence is designed or intended for use as a commercial facility.

Likewise, if a homeowner alters a portion of his home to convert it to a

commercial facility, that work must be done in compliance with the

alterations standards in the appendix A.

Structural Impracticability

Proposed 36.401(c) is included in the final rule with minor changes.

It details a statutory exception to the new construction requirement: the

requirement that new construction be accessible does not apply where an

entity can demonstrate that it is structurally impracticable to meet the

requirements of the regulation. This provision is also included in ADAAG,

at section 4.1.1(5)(a).

Consistent with the legislative history of the ADA, this narrow

exception will apply only in rare and unusual circumstances where unique

characteristics of terrain make accessibility unusually difficult. Such

limitations for topographical problems are analogous to an acknowledged

limitation in the application of the accessibility requirements of the Fair

Housing Amendments Act (FHAA) of 1988.

Almost all commenters supported this interpretation. Two commenters

argued that the DOJ requirement is too limiting and would not exempt some

buildings that should be exempted because of soil conditions, terrain, and

other unusual site conditions. These commenters suggested consistency with

HUD's Fair Housing Accessibility Guidelines (56 FR 9472 (1991)), which

generally would allow exceptions from accessibility requirements, or allow

compliance with less stringent requirements, on sites with slopes exceeding

10%.

The Department is aware of the provisions in HUD's guidelines, which

were issued on March 6, 1991, after passage of the ADA and publication of

the Department's proposed rule. The approach taken in these guidelines,

which apply to different types of construction and implement different

statutory requirements for new construction, does not bind this Department

in regulating under the ADA. The Department has included in the final rule

the substance of the proposed provision, which is faithful to the intent of

the statute, as expressed in the legislative history. (See Senate report

at 70-71; Education and Labor report at 120.)

The limited structural impracticability exception means that it is

acceptable to deviate from accessibility requirements only where unique

characteristics of terrain prevent the incorporation of accessibility

features and where providing accessibility would destroy the physical

integrity of a facility. A situation in which a building must be built on

stilts because of its location in marshlands or over water is an example of

one of the few situations in which the exception for structural

impracticability would apply.

 

This exception to accessibility requirements should not be applied to

situations in which a facility is located in "hilly" terrain or on a plot

of land upon which there are steep grades. In such circumstances,

accessibility can be achieved without destroying the physical integrity of

a structure, and is required in the construction of new facilities.

Some commenters asked for clarification concerning when and how to

apply the ADA rules or the Fair Housing Accessibility Guidelines, especially

when a facility may be subject to both because of mixed use. Guidance on

this question is provided in the discussion of the definitions of place of

public accommodation and commercial facility. With respect to the

structural impracticability exception, a mixed-use facility could not take

advantage of the Fair Housing exemption, to the extent that it is less

stringent than the ADA exemption, except for those portions of the facility

that are subject only to the Fair Housing Act.

As explained in the preamble to the proposed rule, in those rare

circumstances in which it is structurally impracticable to achieve full

compliance with accessibility requirements under the ADA, places of public

accommodation and commercial facilities should still be designed and

constructed to incorporate accessibility features to the extent that the

features are structurally practicable. The accessibility requirements

should not be viewed as an all-or-nothing proposition in such circumstances.

 

 

 

If it is structurally impracticable for a facility in its entirety to

be readily accessible to and usable by people with disabilities, then those

portions that can be made accessible should be made accessible. If a

building cannot be constructed in compliance with the full range of

accessibility requirements because of structural impracticability, then it

should still incorporate those features that are structurally practicable.

If it is structurally impracticable to make a particular facility accessible

to persons who have particular types of disabilities, it is still

appropriate to require it to be made accessible to persons with other types

of disabilities. For example, a facility that is of necessity built on

stilts and cannot be made accessible to persons who use wheelchairs because

it is structurally impracticable to do so, must be made accessible for

individuals with vision or hearing impairments or other kinds of

disabilities.

Elevator Exemption

Section 36.401(d) implements the "elevator exemption" for new

construction in section 303(b) of the ADA. The elevator exemption is an

exception to the general requirement that new facilities be readily

accessible to and usable by individuals with disabilities. Generally, an

elevator is the most common way to provide individuals who use wheelchairs

"ready access" to floor levels above or below the ground floor of a

multi-story building. Congress, however, chose not to require elevators in

new small buildings, that is, those with less than three stories or less

that 3000 square feet per story. In buildings eligible for the exemption,

therefore, "ready access" from the building entrance to a floor above or

below the ground floor is not required, because the statute does not require

that an elevator be installed in such buildings. The elevator exemption

does not apply, however, to a facility housing a shopping center, a shopping

mall, or the professional office of a health care provider, or other

categories of facilities as determined by the Attorney General. For

example, a new office building that will have only two stories, with no

elevator planned, will not be required to have an elevator, even if each

story has 20,000 square feet. In other words, having either less than 3000

square feet per story or less than three stories qualifies a facility for

the exemption; it need not qualify for the exemption on both counts.

Similarly, a facility that has five stories of 2800 square feet each

qualifies for the exemption. If a facility has three or more stories at any

point, it is not eligible for the elevator exemption unless all the stories

are less than 3000 square feet.

 

The terms "shopping center or shopping mall" and "professional office

of a health care provider" are defined in this section. They are

substantively identical to the definitions included in the proposed rule in

36.104, "Definitions." They have been moved to this section because, as

commenters pointed out, they are relevant only for the purposes of the

elevator exemption, and inclusion in the general definitions section could

give the incorrect impression that an office of a health care provider is

not covered as a place of public accommodation under other sections of the

rule, unless the office falls within the definition.

For purposes of 36.401, a "shopping center or shopping mall" is (1) a

building housing five or more sales or rental establishments, or (2) a

series of buildings on a common site, either under common ownership or

common control or developed either as one project or as a series of related

projects, housing five or more sales or rental establishments. The term

"shopping center or shopping mall" only includes floor levels containing at

least one sales or rental establishment, or any floor level that was

designed or intended for use by at least one sales or rental establishment.

Any sales or rental establishment of the type that is included in

paragraph (5) of the definition of "place of public accommodation" (for

example, a bakery, grocery store, clothing store, or hardware store) is

considered a sales or rental establishment for purposes of this definition;

the other types of public accommodations (e.g., restaurants, laundromats,

banks, travel services, health spas) are not.

In the preamble to the proposed rule, the Department sought comment on

whether the definition of "shopping center or mall" should be expanded to

include any of these other types of public accommodations. The Department

also sought comment on whether a series of buildings should fall within the

definition only if they are physically connected.

Most of those responding to the first question (overwhelmingly groups

representing people with disabilities, or individual commenters) urged that

the definition encompass more places of public accommodation, such as

restaurants, motion picture houses, laundromats, dry cleaners, and banks.

They pointed out that often it is not known what types of establishments

will be tenants in a new facility. In addition, they noted that malls are

advertised as entities, that their appeal is in the "package" of services

offered to the public, and that this package often includes the additional

types of establishments mentioned.

Commenters representing business groups sought to exempt banks, travel

services, grocery stores, drug stores, and freestanding retail stores from

the elevator requirement. They based this request on the desire to continue

the practice in some locations of incorporating mezzanines housing

administrative offices, raised pharmacist areas, and raised areas in the

front of supermarkets that house safes and are used by managers to oversee

operations of check-out aisles and other functions. Many of these concerns

are adequately addressed by ADAAG. Apart from those addressed by ADAAG, the

Department sees no reason to treat a particular type of sales or rental

establishment differently from any other. Although banks and travel

services are not included as "sales or rental establishments," because they

do not fall under paragraph (5) of the definition of place of public

accommodation, grocery stores and drug stores are included.

The Department has declined to include places of public accommodation

other than sales or rental establishments in the definition. The statutory

definition of "public accommodation" (section 301(7)) lists 12 types of

establishments that are considered public accommodations. Category (E)

includes "a bakery, grocery store, clothing store, hardware store, shopping

center, or other sales or rental establishment." This arrangement suggests

that it is only these types of establishments that would make up a shopping

center for purposes of the statute. To include all types of places of

public accommodation, or those from 6 or 7 of the categories, as commenters

suggest, would overly limit the elevator exemption; the universe of

facilities covered by the definition of "shopping center" could well exceed

the number of multitenant facilities not covered, which would render the

exemption almost meaningless.

For similar reasons, the Department is retaining the requirement that

a building or series of buildings must house five or more sales or rental

establishments before it falls within the definition of "shopping center."

Numerous commenters objected to the number and requested that the number be

lowered from five to three or four. Lowering the number in this manner

would include an inordinately large number of two-story multitenant

buildings within the category of those required to have elevators.

 

The responses to the question concerning whether a series of buildings

should be connected in order to be covered were varied. Generally,

disability rights groups and some government agencies said a series of

buildings should not have to be connected, and pointed to a trend in some

areas to build shopping centers in a garden or village setting. The

Department agrees that this design choice should not negate the elevator

requirement for new construction. Some business groups answered the

question in the affirmative, and some suggested a different definition of

shopping center. For example, one commenter recommended the addition of a

requirement that the five or more establishments be physically connected on

the non-ground floors by a common pedestrian walkway or pathway, because

otherwise a series of stand-alone facilities would have to comply with the

elevator requirement, which would be unduly burdensome and perhaps

infeasible. Another suggested use of what it characterized as the standard

industry definition: "a group of retail stores and related business

facilities, the whole planned, developed, operated and managed as a unit."

While the rule's definition would reach a series of related projects that

are under common control but were not developed as a single project, the

Department considers such a facility to be a shopping center within the

meaning of the statute. However, in light of the hardship that could

confront a series of existing small stand-alone buildings if elevators were

required in alterations, the Department has included a common access route

in the definition of shopping center or shopping mall for purposes of

36.404.

Some commenters suggested that access to restrooms and other shared

facilities open to the public should be required even if those facilities

were not on a shopping floor. Such a provision with respect to toilet or

bathing facilities is included in the elevator exception in final ADAAG

4.1.3(5).

For purposes of this subpart, the rule does not distinguish between a

"shopping mall" (usually a building with a roofed-over common pedestrian

area serving more than one tenant in which a majority of the tenants have

a main entrance from the common pedestrian area) and a "shopping center"

(e.g., a "shopping strip"). Any facility housing five or more of the types

of sales or rental establishments described, regardless of the number of

other types of places of public accommodation housed there (e.g., offices,

movie theatres, restaurants), is a shopping center or shopping mall.

 

For example, a two-story facility built for mixed-use occupancy on both

floors (e.g., by sales and rental establishments, a movie theater,

restaurants, and general office space) is a shopping center or shopping mall

if it houses five or more sales or rental establishments. If none of these

establishments is located on the second floor, then only the ground floor,

which contains the sales or rental establishments, would be a "shopping

center or shopping mall," unless the second floor was designed or intended

for use by at least one sales or rental establishment. In determining

whether a floor was intended for such use, factors to be considered include

the types of establishments that first occupied the floor, the nature of the

developer's marketing strategy, i.e., what types of establishments were

sought, and inclusion of any design features particular to rental and sales

establishments.

A "professional office of a health care provider" is defined as a

location where a person or entity regulated by a State to provide

professional services related to the physical or mental health of an

individual makes such services available to the public. In a two-story

development that houses health care providers only on the ground floor, the

"professional office of a health care provider" is limited to the ground

floor unless the second floor was designed or intended for use by a health

care provider. In determining if a floor was intended for such use, factors

to be considered include whether the facility was constructed with special

plumbing, electrical, or other features needed by health care providers,

whether the developer marketed the facility as a medical office center, and

whether any of the establishments that first occupied the floor was, in

fact, a health care provider.

In addition to requiring that a building that is a shopping center,

shopping mall, or the professional office of a health care provider have an

elevator regardless of square footage or number of floors, the ADA (section

303(b)) provides that the Attorney General may determine that a particular

category of facilities requires the installation of elevators based on the

usage of the facilities. The Department, as it proposed to do, has added

to the nonexempt categories terminals, depots, or other stations used for

specified public transportation, and airport passenger terminals. Numerous

commenters in all categories endorsed this proposal; none opposed it. It

is not uncommon for an airport passenger terminal or train station, for

example, to have only two floors, with gates on both floors. Because of the

significance of transportation, because a person with disabilities could be

arriving or departing at any gate, and because inaccessible facilities could

result in a total denial of transportation services, it is reasonable to

require that newly constructed transit facilities be accessible, regardless

of square footage or number of floors. One comment suggested an amendment

that would treat terminals and stations similarly to shopping centers, by

requiring an accessible route only to those areas used for passenger loading

and unloading and for other passenger services. Paragraph (d)(2)(ii) has

been modified accordingly.

Some commenters suggested that other types of facilities (e.g.,

educational facilities, libraries, museums, commercial facilities, and

social service facilities) should be included in the category of nonexempt

facilities. The Department has not found adequate justification for

including any other types of facilities in the nonexempt category at this

time.

 

Section 36.401(d)(2) establishes the operative requirements concerning

the elevator exemption and its application to shopping centers and malls,

professional offices of health care providers, transit stations, and airport

passenger terminals. Under the rule's framework, it is necessary first to

determine if a new facility (including one or more buildings) houses places

of public accommodation or commercial facilities that are in the categories

for which elevators are required. If so, and the facility is a shopping

center or shopping mall, or a professional office of a health care provider,

then any area housing such an office or a sales or rental establishment or

the professional office of a health care provider is not entitled to the

elevator exemption.

The following examples illustrate the application of these principles:

1. A shopping mall has an upper and a lower level. There are two

"anchor stores" (in this case, major department stores at either end of the

mall, both with exterior entrances and an entrance on each level from the

common area). In addition, there are 30 stores (sales or rental

establishments) on the upper level, all of which have entrances from a

common central area. There are 30 stores on the lower level, all of which

have entrances from a common central area. According to the rule, elevator

access must be provided to each store and to each level of the anchor

stores. This requirement could be satisfied with respect to the 60 stores

through elevators connecting the two pedestrian levels, provided that an

individual could travel from the elevator to any other point on that level

(i.e., into any store through a common pedestrian area) on an accessible

path.

2. A commercial (nonresidential) "townhouse" development is composed

of 20 two-story attached buildings. The facility is developed as one

project, with common ownership, and the space will be leased to retailers.

Each building has one accessible entrance from a pedestrian walk to the

first floor. From that point, one can enter a store on the first floor, or

walk up a flight of stairs to a store on the second floor. All 40 stores

must be accessible at ground floor level or by accessible vertical access

from that level. This does not mean, however, that 20 elevators must be

installed. Access could be provided to the second floor by an elevator from

the pedestrian area on the lower level to an upper walkway connecting all

the areas on the second floor.

3. In the same type of development, it is planned that retail stores

will be housed exclusively on the ground floor, with only office space (not

professional offices of health care providers) on the second. Elevator

access need not be provided to the second floor because all the sales or

rental establishments (the entities that make the facility a shopping

center) are located on an accessible ground floor.

4. In the same type of development, the space is designed and marketed

as medical or office suites, or as a medical office facility. Accessible

vertical access must be provided to all areas, as described in example 2.

Some commenters suggested that building owners who knowingly lease or

rent space to nonexempt places of public accommodation would violate 36.401.

However, the Department does not consider leasing or renting inaccessible

space in itself to constitute a violation of this part. Nor does a change

in use of a facility, with no accompanying alterations (e.g., if a

psychiatrist replaces an attorney as a tenant in a second-floor office, but

no alterations are made to the office) trigger accessibility

requirements.

Entities cannot evade the requirements of this section by constructing

facilities in such a way that no story is intended to constitute a "ground

floor." For example, if a private entity constructs a building whose main

entrance leads only to stairways or escalators that connect with upper or

lower floors, the Department would consider at least one level of the

facility a ground story.

The rule requires in 36.401(d)(3), consistent with the proposed rule,

that, even if a building falls within the elevator exemption, the floor or

floors other than the ground floor must nonetheless be accessible, except

for elevator access, to individuals with disabilities, including people who

use wheelchairs. This requirement applies to buildings that do not house

sales or rental establishments or the professional offices of a health care

provider as well as to those in which such establishments or offices are all

located on the ground floor. In such a situation, little added cost is

entailed in making the second floor accessible, because it is similar in

structure and floor plan to the ground floor.

There are several reasons for this provision. First, some individuals

who are mobility impaired may work on a building's second floor, which they

can reach by stairs and the use of crutches; however, the same individuals,

once they reach the second floor, may then use a wheelchair that is kept in

the office. Secondly, because the first floor will be accessible, there

will be little additional cost entailed in making the second floor, with the

same structure and generally the same floor plan, accessible. In addition,

the second floor must be accessible to those persons with disabilities who

do not need elevators for level changes (for example, persons with sight or

hearing impairments and those with certain mobility impairments). Finally,

if an elevator is installed in the future for any reason, full access to the

floor will be facilitated.

One commenter asserted that this provision goes beyond the Department's

authority under the Act, and disagreed with the Department's claim that

little additional cost would be entailed in compliance. However, the

provision is taken directly from the legislative history (see Education and

Labor report at 114).

One commenter said that where an elevator is not required, platform

lifts should be required. Two commenters pointed out that the elevator

exemption is really an exemption from the requirement for providing an

accessible route to a second floor not served by an elevator. The

Department agrees with the latter comment. Lifts to provide access between

floors are not required in buildings that are not required to have

elevators. This point is specifically addressed in the appendix to ADAAG

( 4.1.3(5)). ADAAG also addresses in detail the situations in which lifts

are permitted or required.

 

36.402 Alterations.

(a) General. (1) Any alteration to a place of public accommodation

or a commercial facility, after January 26, 1992, shall be made so as to

ensure that, to the maximum extent feasible, the altered portions of the

facility are readily accessible to and usable by individuals with

disabilities, including individuals who use wheelchairs.

(2) An alteration is deemed to be undertaken after January 26, 1992,

if the physical alteration of the property begins after that date.

(b) Alteration. For the purposes of this part, an alteration is a

change to a place of public accommodation or a commercial facility that

affects or could affect the usability of the building or facility or any

part thereof.

(1) Alterations include, but are not limited to, remodeling,

renovation, rehabilitation, reconstruction, historic restoration, changes

or rearrangement in structural parts or elements, and changes or

rearrangement in the plan configuration of walls and full-height partitions.

Normal maintenance, reroofing, painting or wallpapering, asbestos removal,

or changes to mechanical and electrical systems are not alterations unless

they affect the usability of the building or facility.

(2) If existing elements, spaces, or common areas are altered, then

each such altered element, space, or area shall comply with the applicable

provisions of appendix A to this part.

(c) To the maximum extent feasible. The phrase "to the maximum extent

feasible," as used in this section, applies to the occasional case where the

nature of an existing facility makes it virtually impossible to comply fully

with applicable accessibility standards through a planned alteration. In

these circumstances, the alteration shall provide the maximum physical

accessibility feasible. Any altered features of the facility that can be

made accessible shall be made accessible. If providing accessibility in

conformance with this section to individuals with certain disabilities

(e.g., those who use wheelchairs) would not be feasible, the facility shall

be made accessible to persons with other types of disabilities (e.g., those

who use crutches, those who have impaired vision or hearing, or those who

have other impairments).

 

Section 36.402 Alterations.

Sections 36.402-36.405 implement section 303(a)(2) of the Act, which

requires that alterations to existing facilities be made in a way that

ensures that the altered portion is readily accessible to and usable by

individuals with disabilities. This part does not require alterations; it

simply provides that when alterations are undertaken, they must be made in

a manner that provides access.

Section 36.402(a)(1) provides that any alteration to a place of public

accommodation or a commercial facility, after January 26, 1992, shall be

made so as to ensure that, to the maximum extent feasible, the altered

portions of the facility are readily accessible to and usable by individuals

with disabilities, including individuals who use wheelchairs.

The proposed rule provided that an alteration would be deemed to be

undertaken after January 26, 1992, if the physical alteration of the

property is in progress after that date. Commenters pointed out that this

provision would, in some cases, produce an unjust result by requiring the

redesign or retrofitting of projects initiated before this part established

the ADA accessibility standards. The Department agrees that the proposed

rule would, in some instances, unfairly penalize projects that were

substantially completed before the effective date. Therefore, paragraph

(a)(2) has been revised to specify that an alteration will be deemed to be

undertaken after January 26, 1992, if the physical alteration of the

property begins after that date. As a matter of interpretation, the

Department will construe this provision to apply to alterations that require

a permit from a State, County or local government, if physical alterations

pursuant to the terms of the permit begin after January 26, 1992. The

Department recognizes that this application of the effective date may

require redesign of some facilities that were planned prior to the

publication of this part, but no retrofitting will be required of facilities

on which the physical alterations were initiated prior to the effective date

of the Act. Of course, nothing in this section in any way alters the

obligation of any facility to remove architectural barriers in existing

facilities to the extent that such barrier removal is readily achievable.

Paragraph (b) provides that, for the purposes of this part, an

"alteration" is a change to a place of public accommodation or a commercial

facility that affects or could affect the usability of the building or

facility or any part thereof. One commenter suggested that the concept of

usability should apply only to those changes that affect access by persons

with disabilities. The Department remains convinced that the Act requires

the concept of "usability" to be read broadly to include any change that

affects the usability of the facility, not simply changes that relate

directly to access by individuals with disabilities.

 

The Department received a significant number of comments on the

examples provided in paragraphs (b)(1) and (b)(2) of the proposed rule.

Some commenters urged the Department to limit the application of this

provision to major structural modifications, while others asserted that it

should be expanded to include cosmetic changes such as painting and

wallpapering. The Department believes that neither approach is consistent

with the legislative history, which requires this Department's regulation

to be consistent with the accessibility guidelines (ADAAG) developed by the

Architectural and Transportation Barriers Compliance Board (ATBCB).

Although the legislative history contemplates that, in some instances, the

ADA accessibility standards will exceed the current MGRAD requirements, it

also clearly indicates the view of the drafters that "minor changes such as

painting or papering walls . . . do not affect usability" (Education and

Labor report at 111, Judiciary report at 64), and, therefore, are not

alterations. The proposed rule was based on the existing MGRAD definition

of "alteration." The language of the final rule has been revised to be

consistent with ADAAG, incorporated as Appendix A to this part.

Some commenters sought clarification of the intended scope of this

section. The proposed rule contained illustrations of changes that affect

usability and those that do not. The intent of the illustrations was to

explain the scope of the alterations requirement; the effect was to obscure

it. As a result of the illustrations, some commenters concluded that any

alteration to a facility, even a minor alteration such as relocating an

electrical outlet, would trigger an extensive obligation to provide access

throughout an entire facility. That result was never contemplated.

Therefore, in this final rule paragraph (b)(1) has been revised to

include the major provisions of paragraphs (b)(1) and (b)(2) of the proposed

rule. The examples in the proposed rule have been deleted. Paragraph

(b)(1) now provides that alterations include, but are not limited to,

remodeling, renovation, rehabilitation, reconstruction, historic

restoration, changes or rearrangement in structural parts or elements, and

changes or rearrangement in the plan configuration of walls and full-height

partitions. Normal maintenance, reroofing, painting or wallpapering,

asbestos removal, or changes to mechanical and electrical systems are not

alterations unless they affect the usability of building or facility.

Paragraph (b)(2) of this final rule was added to clarify the scope of

the alterations requirement. Paragraph (b)(2) provides that if existing

elements, spaces, or common areas are altered, then each such altered

element, space, or area shall comply with the applicable provisions of

Appendix A (ADAAG). As provided in 36.403, if an altered space or area is

an area of the facility that contains a primary function, then the

requirements of that section apply.

Therefore, when an entity undertakes a minor alteration to a place of

public accommodation or commercial facility, such as moving an electrical

outlet, the new outlet must be installed in compliance with ADAAG.

(Alteration of the elements listed in 36.403(c)(2) cannot trigger a path of

travel obligation.) If the alteration is to an area, such as an employee

lounge or locker room, that is not an area of the facility that contains a

primary function, that area must comply with ADAAG. It is only when an

alteration affects access to or usability of an area containing a primary

function, as opposed to other areas or the elements listed in 36.403(c)(2),

that the path of travel to the altered area must be made accessible.

 

The Department received relatively few comments on paragraph (c), which

explains the statutory phrase "to the maximum extent feasible." Some

commenters suggested that the regulation should specify that cost is a

factor in determining whether it is feasible to make an altered area

accessible. The legislative history of the ADA indicates that the concept

of feasibility only reaches the question of whether it is possible to make

the alteration accessible in compliance with this part. Costs are to be

considered only when an alteration to an area containing a primary function

triggers an additional requirement to make the path of travel to the altered

area accessible.

Section 36.402(c) is, therefore, essentially unchanged from the

proposed rule. At the recommendation of a commenter, the Department has

inserted the word "virtually" to modify "impossible" to conform to the

language of the legislative history. It explains that the phrase "to the

maximum extent feasible" as used in this section applies to the occasional

case where the nature of an existing facility makes it virtually impossible

to comply fully with applicable accessibility standards through a planned

alteration. In the occasional cases in which full compliance is impossible,

alterations shall provide the maximum physical accessibility feasible. Any

features of the facility that are being altered shall be made accessible

unless it is technically infeasible to do so. If providing accessibility

in conformance with this section to individuals with certain disabilities

(e.g., those who use wheelchairs) would not be feasible, the facility shall

be made accessible to persons with other types of disabilities (e.g., those

who use crutches or who have impaired vision or hearing, or those who have

other types of impairments).

36.403 Alterations: Path of travel.

(a) General. An alteration that affects or could affect the usability

of or access to an area of a facility that contains a primary function shall

be made so as to ensure that, to the maximum extent feasible, the path of

travel to the altered area and the restrooms, telephones, and drinking

fountains serving the altered area, are readily accessible to and usable by

individuals with disabilities, including individuals who use wheelchairs,

unless the cost and scope of such alterations is disproportionate to the

cost of the overall alteration.

(b) Primary function. A "primary function" is a major activity for

which the facility is intended. Areas that contain a primary function

include, but are not limited to, the customer services lobby of a bank, the

dining area of a cafeteria, the meeting rooms in a conference center, as

well as offices and other work areas in which the activities of the public

accommodation or other private entity using the facility are carried out.

Mechanical rooms, boiler rooms, supply storage rooms, employee lounges or

locker rooms, janitorial closets, entrances, corridors, and restrooms are

not areas containing a primary function.

 

(c) Alterations to an area containing a primary function. (1)

Alterations that affect the usability of or access to an area containing a

primary function include, but are not limited to --

(i) Remodeling merchandise display areas or employee work areas in a

department store;

(ii) Replacing an inaccessible floor surface in the customer service

or employee work areas of a bank;

(iii) Redesigning the assembly line area of a factory; or

(iv) Installing a computer center in an accounting firm.

(2) For the purposes of this section, alterations to windows,

hardware, controls, electrical outlets, and signage shall not be deemed to

be alterations that affect the usability of or access to an area containing

a primary function.

(d) Landlord/tenant: If a tenant is making alterations as defined in

36.402 that would trigger the requirements of this section, those

alterations by the tenant in areas that only the tenant occupies do not

trigger a path of travel obligation upon the landlord with respect to areas

of the facility under the landlord's authority, if those areas are not

otherwise being altered.

(e) Path of travel. (1) A "path of travel" includes a continuous,

unobstructed way of pedestrian passage by means of which the altered area

may be approached, entered, and exited, and which connects the altered area

with an exterior approach (including sidewalks, streets, and parking areas),

an entrance to the facility, and other parts of the facility.

(2) An accessible path of travel may consist of walks and sidewalks,

curb ramps and other interior or exterior pedestrian ramps; clear floor

paths through lobbies, corridors, rooms, and other improved areas; parking

access aisles; elevators and lifts; or a combination of these elements.

(3) For the purposes of this part, the term "path of travel" also

includes the restrooms, telephones, and drinking fountains serving the

altered area.

(f) Disproportionality. (1) Alterations made to provide an

accessible path of travel to the altered area will be deemed

disproportionate to the overall alteration when the cost exceeds 20% of the

cost of the alteration to the primary function area.

(2) Costs that may be counted as expenditures required to provide an

accessible path of travel may include:

(i) Costs associated with providing an accessible entrance and an

accessible route to the altered area, for example, the cost of widening

doorways or installing ramps;

(ii) Costs associated with making restrooms accessible, such as

installing grab bars, enlarging toilet stalls, insulating pipes, or

installing accessible faucet controls;

(iii) Costs associated with providing accessible telephones, such as

relocating the telephone to an accessible height, installing amplification

devices, or installing a telecommunications device for deaf persons (TDD);

(iv) Costs associated with relocating an inaccessible drinking

fountain.

(g) Duty to provide accessible features in the event of

disproportionality. (1) When the cost of alterations necessary to make the

path of travel to the altered area fully accessible is disproportionate to

the cost of the overall alteration, the path of travel shall be made

accessible to the extent that it can be made accessible without incurring

disproportionate costs.

(2) In choosing which accessible elements to provide, priority should

be given to those elements that will provide the greatest access, in the

following order:

(i) An accessible entrance;

(ii) An accessible route to the altered area;

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

restroom;

(iv) Accessible telephones;

(v) Accessible drinking fountains; and

(vi) When possible, additional accessible elements such as parking,

storage, and alarms.

(h) Series of smaller alterations. (1) The obligation to provide an

accessible path of travel may not be evaded by performing a series of small

alterations to the area served by a single path of travel if those

alterations could have been performed as a single undertaking.

(2) (i) If an area containing a primary function has been altered

without providing an accessible path of travel to that area, and subsequent

alterations of that area, or a different

area on the same path of travel, are undertaken within three years of the

original alteration, the total cost of alterations to the primary function

areas on that path of travel during the preceding three year period shall

be considered in determining whether the cost of making that path of travel

accessible is disproportionate.

(ii) Only alterations undertaken after January 26, 1992, shall be

considered in determining if the cost of providing an accessible path of

travel is disproportionate to the overall cost of the alterations.

Section 36.403 Alterations: Path of travel.

Section 36.403 implements the statutory requirement that any alteration

that affects or could affect the usability of or access to an area of a

facility that contains a primary function shall be made so as to ensure

that, to the maximum extent feasible, the path of travel to the altered

area, and the restrooms, telephones, and drinking fountains serving the

altered area, are readily accessible to and usable by individuals with

disabilities, including individuals who use wheelchairs, unless the cost and

scope of such alterations is disproportionate to the cost of the overall

alteration. Paragraph (a) restates this statutory requirement.

Paragraph (b) defines a "primary function" as a major activity for

which the facility is intended. This paragraph is unchanged from the

proposed rule. Areas that contain a primary function include, but are not

limited to, the customer services lobby of a bank, the dining area of a

cafeteria, the meeting rooms in a conference center, as well as offices and

all other work areas in which the activities of the public accommodation or

other private entities using the facility are carried out. The concept of

"areas containing a primary function" is analogous to the concept of

"functional spaces" in 3.5 of the existing Uniform Federal Accessibility

Standards, which defines "functional spaces" as "[t]he rooms and spaces in

a building or facility that house the major activities for which the

building or facility is intended."

Paragraph (b) provides that areas such as mechanical rooms, boiler

rooms, supply storage rooms, employee lounges and locker rooms, janitorial

closets, entrances, corridors, and restrooms are not areas containing a

primary function. There may be exceptions to this general rule. For

example, the availability of public restrooms at a place of public

accommodation at a roadside rest stop may be a major factor affecting

customers' decisions to patronize the public accommodation. In that case,

a restroom would be considered to be an "area containing a primary function"

of the facility.

Most of the commenters who addressed this issue supported the approach

taken by the Department; but a few commenters suggested that areas not open

to the general public or those used exclusively by employees should be

excluded from the definition of primary function. The preamble to the

proposed rule noted that the Department considered an alternative approach

to the definition of "primary function," under which a primary function of

a commercial facility would be defined as a major activity for which the

facility was intended, while a primary function of a place of public

accommodation would be defined as an activity which involves providing

significant goods, services, facilities, privileges, advantages, or

accommodations. However, the Department concluded that, although portions

of the legislative history of the ADA support this alternative, the better

view is that the language now contained in 36.403(b) most accurately

reflects congressional intent. No commenter made a persuasive argument that

the Department's interpretation of the legislative history is incorrect.

When the ADA was introduced, the requirement to make alterations

accessible was included in section 302 of the Act, which identifies the

practices that constitute discrimination by a public accommodation. Because

section 302 applies only to the operation of a place of public

accommodation, the alterations requirement was intended only to provide

access to clients and customers of a public accommodation. It was

anticipated that access would be provided to employees with disabilities

under the "reasonable accommodation" requirements of title I. However,

during its consideration of the ADA, the House Judiciary Committee amended

the bill to move the alterations provision from section 302 to section 303,

which applies to commercial facilities as well as public accommodations.

The Committee report accompanying the bill explains that:

New construction and alterations of both public accommodations and

commercial facilities must be made readily accessible to and usable by

individuals with disabilities . . . . Essentially, [this requirement] is

designed to ensure that patrons and employees of public accommodations and

commercial facilities are able to get to, enter and use the facility. . .

. The rationale for making new construction accessible applies with equal

force to alterations.

Judiciary report at 62-63 (emphasis added).

The ADA, as enacted, contains the language of section 303 as it was

reported out of the Judiciary Committee. Therefore, the Department has

concluded that the concept of "primary function" should be applied in the

same manner to places of public accommodation and to commercial facilities,

thereby including employee work areas in places of public accommodation

within the scope of this section.

Paragraph (c) provides examples of alterations that affect the

usability of or access to an area containing a primary function. The

examples include: remodeling a merchandise display area or employee work

areas in a department store; installing a new floor surface to replace an

inaccessible surface in the customer service area or employee work areas of

a bank; redesigning the assembly line area of a factory; and installing a

computer center in an accounting firm. This list is illustrative, not

exhaustive. Any change that affects the usability of or access to an area

containing a primary function triggers the statutory obligation to make the

path of travel to the altered area accessible.

When the proposed rule was drafted, the Department believed that the

rule made it clear that the ADA would require alterations to the path of

travel only when such alterations are not disproportionate to the alteration

to the primary function area. However, the comments that the Department

received indicated that many commenters believe that even minor alterations

to individual elements would require additional alterations to the path of

travel. To address the concern of these commenters, a new paragraph (c)(2)

has been added to the final rule to provide that alterations to such

elements as windows, hardware, controls (e.g. light switches or

thermostats), electrical outlets, or signage will not be deemed to be

alterations that affect the usability of or access to an area containing a

primary function. Of course, each element that is altered must comply with

ADAAG (Appendix A). The cost of alterations to individual elements would

be included in the overall cost of an alteration for purposes of determining

disproportionality and would be counted when determining the aggregate cost

of a series of small alterations in accordance with 36.403(h) if the area

is altered in a manner that affects access to or usability of an area

containing a primary function.

Paragraph (d) concerns the respective obligations of landlords and

tenants in the cases of alterations that trigger the path of travel

requirement under 36.403. This paragraph was contained in the

landlord/tenant section of the proposed rule, 36.201(b). If a tenant is

making alterations upon its premises pursuant to terms of a lease that grant

it the authority to do so (even if they constitute alterations that trigger

the path of travel requirement), and the landlord is not making alterations

to other parts of the facility, then the alterations by the tenant on its

own premises do not trigger a path of travel obligation upon the landlord

in areas of the facility under the landlord's authority that are not

otherwise being altered. The legislative history makes clear that the path

of travel requirement applies only to the entity that is already making the

alteration, and thus the Department has not changed the final rule despite

numerous comments suggesting that the tenant be required to provide a path

of travel.

Paragraph (e) defines a "path of travel" as a continuous, unobstructed

way of pedestrian passage by means of which an altered area may be

approached, entered, and exited; and which connects the altered area with

an exterior approach (including sidewalks, streets, and parking areas), an

entrance to the facility, and other parts of the facility. This concept of

an accessible path of travel is analogous to the concepts of "accessible

route" and "circulation path" contained in section 3.5 of the current UFAS.

Some commenters suggested that this paragraph should address emergency

egress. The Department disagrees. "Path of travel" as it is used in this

section is a term of art under the ADA that relates only to the obligation

of the public accommodation or commercial facility to provide additional

accessible elements when an area containing a primary function is altered.

The Department recognizes that emergency egress is an important issue, but

believes that it is appropriately addressed in ADAAG (appendix A), not in

this paragraph. Furthermore, ADAAG does not require changes to emergency

egress areas in alterations.

Paragraph (e)(2) is drawn from section 3.5 of UFAS. It provides that

an accessible path of travel may consist of walks and sidewalks, curb ramps

and other interior or exterior pedestrian ramps; clear floor paths through

lobbies, corridors, rooms, and other improved areas; parking access aisles;

elevators and lifts; or a combination of such elements. Paragraph (e)(3)

provides that, for the purposes of this part, the term "path of travel" also

includes the restrooms, telephones, and drinking fountains serving an

altered area.

Although the Act establishes an expectation that an accessible path of

travel should generally be included when alterations are made to an area

containing a primary function, Congress recognized that, in some

circumstances, providing an accessible path of travel to an altered area may

be sufficiently burdensome in comparison to the alteration being undertaken

to the area containing a primary function as to render this requirement

unreasonable. Therefore, Congress provided, in section 303(a)(2) of the

Act, that alterations to the path of travel that are disproportionate in

cost and scope to the overall alteration are not required.

The Act requires the Attorney General to determine at what point the

cost of providing an accessible path of travel becomes disproportionate.

The proposed rule provided three options for making this determination.

Paragraph (h) (paragraph (g) in the proposed rule) provides that the

obligation to provide an accessible path of travel may not be evaded by

performing a series of small alterations to the area served by a single path

of travel if those alterations could have been performed as a single

undertaking. If an area containing a primary function has been altered

without providing an accessible path of travel to serve that area, and

subsequent alterations of that area, or a different area on the same path

of travel, are undertaken within three years of the original alteration, the

total cost of alterations to primary function areas on that path of travel

during the preceding three year period shall be considered in determining

whether the cost of making the path of travel serving that area accessible

is disproportionate. Only alterations undertaken after January 26, 1992,

shall be considered in determining if the cost of providing accessible

features is disproportionate to the overall cost of the alterations.

 

36.404 Alterations: Elevator exemption.

(a) This section does not require the installation of an elevator in

an altered facility that is less than three stories or has less than 3,000

square feet per story, except with respect to any facility that houses a

shopping center, a shopping mall, the professional office of a health care

provider, a terminal, depot, or other station used for specified public

transportation, or an airport passenger terminal.

(1) For the purposes of this section, "professional office of a health

care provider" means a location where a person or entity regulated by a

State to provide professional services related to the physical or mental

health of an individual makes such services available to the public. The

facility that houses a "professional office of a health care provider" only

includes floor levels housing by at least one health care provider, or any

floor level designed or intended for use by at least one health care

provider.

(2) For the purposes of this section, shopping center or shopping mall

means--

(i) A building housing five or more sales or rental establishments;

or

(ii) A series of buildings on a common site, connected by a common

pedestrian access route above or below the ground floor, that is either

under common ownership or common control or developed either as one project

or as a series of related projects, housing five or more sales or rental

establishments. For purposes of this section, places of public

accommodation of the types listed in paragraph (5) of the definition of

"place of public accommodation" in 36.104 are considered sales or rental

establishments. The facility housing a "shopping center or shopping mall"

only includes floor levels housing at least one sales or rental

establishment, or any floor level designed or intended for use by at least

one sales or rental establishment.

(b) The exemption provided in paragraph (a) of this section does not

obviate or limit in any way the obligation to comply with the other

accessibility requirements established in this subpart. For example,

alterations to floors above or below the accessible ground floor must be

accessible regardless of whether the altered facility has an elevator.

Section 36.404 Alterations: Elevator Exemption.

Section 36.404 implements the elevator exemption in section 303(b) of

the Act as it applies to altered facilities. The provisions of section

303(b) are discussed in the preamble to 36.401(d) above. The statute

applies the same exemption to both new construction and alterations. The

principal difference between the requirements of 36.401(d) and 36.404 is

that, in altering an existing facility that is not eligible for the

statutory exemption, the public accommodation or other private entity

responsible for the alteration is not required to install an elevator if the

installation of an elevator would be disproportionate in cost and scope to

the cost of the overall alteration as provided in 36.403(f)(1). In

addition, the standards referenced in 36.406 (ADAAG) provide that

installation of an elevator in an altered facility is not required if it is

"technically infeasible."

This section has been revised to define the terms "professional office

of a health care provider" and "shopping center or shopping mall" for the

purposes of this section. The definition of "professional office of a

health care provider" is identical to the definition included in 36.401(d).

It has been brought to the attention of the Department that there is

some misunderstanding about the scope of the elevator exemption as it

applies to the professional office of a health care provider. A public

accommodation, such as the professional office of a health care provider,

is required to remove architectural barriers to its facility to the extent

that such barrier removal is readily achievable (see 36.304), but it is not

otherwise required by this part to undertake new construction or

alterations. This part does not require that an existing two story building

that houses the professional office of a health care provider be altered for

the purpose of providing elevator access. If, however, alterations to the

area housing the office of the health care provider are undertaken for other

purposes, the installation of an elevator might be required, but only if the

cost of the elevator is not disproportionate to the cost of the overall

alteration. Neither the Act nor this part prohibits a health care provider

from locating his or her professional office in an existing facility that

does not have an elevator.

Because of the unique challenges presented in altering existing

facilities, the Department has adopted a definition of "shopping center or

shopping mall" for the purposes of this section that is slightly different

from the definition adopted under 36.401(d). For the purposes of this

section, a "shopping center or shopping mall" is (1) a building housing five

or more sales or rental establishments, or (2) a series of buildings on a

common site, connected by a common pedestrian access route above or below

the ground floor, either under common ownership or common control or

developed either as one project or as a series of related projects, housing

five or more sales or rental establishments. As is the case with new

construction, the term "shopping center or shopping mall" only includes

floor levels housing at least one sales or rental establishment, or any

floor level that was designed or intended for use by at least one sales or

rental establishment.

The Department believes that it is appropriate to use a different

definition of "shopping center or shopping mall" for this section than for

36.401, in order to make it clear that a series of existing buildings on a

common site that is altered for the use of sales or rental establishments

does not become a "shopping center or shopping mall" required to install an

elevator, unless there is a common means of pedestrian access above or below

the ground floor. Without this exemption, separate, but adjacent, buildings

that were initially designed and constructed independently of each other

could be required to be retrofitted with elevators, if they were later

renovated for a purpose not contemplated at the time of construction.

Like 36.401(d), 36.404 provides that the exemptions in this paragraph

do not obviate or limit in any way the obligation to comply with the other

accessibility requirements established in this subpart. For example,

alterations to floors above or below the ground floor must be accessible

regardless of whether the altered facility has an elevator. If a facility

that is not required to install an elevator nonetheless has an elevator,

that elevator shall meet, to the maximum extent feasible, the accessibility

requirements of this section.

 

36.405 Alterations: Historic preservation.

(a) Alterations to buildings or facilities that are eligible for

listing in the National Register of Historic Places under the National

Historic Preservation Act (16 U.S.C. 470 et seq.), or are designated as

historic under State or local law, shall comply to the maximum extent

feasible with section 4.1.7 of appendix A to this Part.

(b) If it is determined under the procedures set out in section 4.1.7

of appendix A that it is not feasible to provide physical access to an

historic property that is a place of public accommodation in a manner that

will not threaten or destroy the historic significance of the building or

facility, alternative methods of access shall be provided pursuant to the

requirements of subpart C of this part.

Section 36.405 Alterations: Historic preservation.

Section 36.405 gives effect to the intent of Congress, expressed in

section 504(c) of the Act, that this part recognize the national interest

in preserving significant historic s