This latter position was also supported in comments received on behalf of the lodging industry; commenters also noted that this is the current practice of many hotels. Some of these commenters acknowledged, however, that this language is drawn directly from the Purposes of the ADA Amendments Act. (4) Mitigating measures include, but are not limited to: (i) Medication, medical supplies, equipment, appliances, low-vision devices (defined as devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aid(s) and cochlear implant(s) or other implantable hearing devices, mobility devices, and oxygen therapy equipment and supplies; (iii) Reasonable modifications or auxiliary aids or services as defined in this regulation; (iv) Learned behavioral or adaptive neurological modifications; or. Also, these commenters noted the progress that has been made in the industry in making cinema more accessible even though there is no mandate to caption or describe movies, and they questioned whether any mandate is necessary. A public entity that determines that it can make reasonable modifications to permit the use of an other power-driven mobility device by an individual with a mobility disability might include in its policy the procedure by which claims that the other power-driven mobility device is being used for a mobility disability will be assessed for legitimacy (i.e., a credible assurance that the device is being used for a mobility disability, including a verbal representation by the person with a disability that is not contradicted by observable fact, or the presentation of a disability parking space placard or card, or State-issued proof of disability); the type or classes of other power-driven mobility devices are permitted to be used by individuals with mobility disabilities; the size, weight, and dimensions of the other power-driven mobility devices that are permitted to be used by individuals with mobility disabilities; the speed limit for the other power-driven mobility devices that are permitted to be used by individuals with mobility disabilities; the places, times, or circumstances under which the use of the other power-driven mobility device is or will be restricted or prohibited; safety, pedestrian, and other rules concerning the use of the other power-driven mobility device; whether, and under which circumstances, storage for the other power-driven mobility device will be made available; and how and where individuals with a mobility disability can obtain a copy of the other power-driven mobility device policy. The changes reflect the Departments analysis and review of complaints or comments from the public, as well as changes in technology. (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and. Commenters disagreed on whether this provision struck an These tasks are based upon input from mental health practitioners, dog trainers, and individuals with a history of working with psychiatric service dogs. Such inquiries are limited to eliciting the information necessary to make a decision without requiring disclosure of confidential disability-related information that a public accommodation does not need. Independent Living Resources v. Oregon Arena Corp., 1 F. Supp. In such cases, if the individual has a family member, friend, or other person willing to take on these responsibilities in the place of the individual with disabilities, the individuals obligation to be responsible for the care and supervision of the service animal would be satisfied. Citing safety concerns, golf organizations recommended that an industry safety standard be developed. Some stadium designers and others argued that captioning should only be required in stadiums built after the effective date of the regulation. The imminent threat exception in 36.303(c)(3) (4) is not intended to apply to typical and foreseeable emergency situations that are part of the normal operations of these institutions. Therefore, even individuals who have no direct use for accessibility features today get a direct benefit from the knowledge of their existence should such individuals need them in the future. Finally, testing entities shall also consider that because private schools are not subject to the IDEA, students at private schools may have a history of receiving accommodations in similar settings that are not pursuant to an IEP or Section 504 Plan. A person with a minor, trivial impairment, such as a simple infected finger, is not impaired in a major life activity. (a) This part does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others. Due to the general element-by-element safe harbor provision in the final rules, no unaltered single-user toilet rooms that comply with the current 1991 Standards will be required to retrofit to meet the revised clearance requirements in the final rules. Therefore, the Department sought public comment regarding its proposed inclusion of a reference to dyslexia in these sections. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. It is our expectation that because this bill makes the definition of disability more generous, some people who were not covered before will now be covered. 154 Cong. If the Department has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by title III or that any person or group of persons has been denied any of the rights granted by title III and such denial raises an issue of general public importance, the Attorney General may commence a civil action in any appropriate United States district court. In choosing among available methods for meeting this requirement, public entities are required to give priority to those methods that offer services, programs, and activities * * * in the most integrated setting appropriate. 28 CFR 35.150(b)(1). 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. It cited the example of a detainee who was held in a hospital because the local jail had no accessible cells. Test C Being regarded as having such an impairment. on Labor and Human Resources, 101st. 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. Va. 1983); United States v. Trustees of Fraternal Order of Eagles, 472 F. Supp. The NPRM proposed requiring that accessible seats be sold through the same methods of distribution as non-accessible seats. It is best left to the public accommodations subject to Sec.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. The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. Others suggested that the standard should be the same to lessen confusion. Therefore, the Department has decided not to return this requirement to the Access Board. A public entity may ask a person using an other power-driven mobility device to provide a credible assurance that the mobility device is required because of the persons disability. [60] Malawi, which would have been making its debut at the Games, and Botswana, were both due to send delegations but withdrew hours before the opening ceremony citing a lack of government funds. Several commenters also argued in favor of a specific exemption for existing spas. Several organizations representing persons with disabilities commented that all facilities must include in safety planning the requirement to caption all aurally-provided information for patrons with communication disabilities. (1) Except as provided in paragraph (b) of this section, this part does not prohibit discrimination against an individual based on that individuals current illegal use of drugs. Commenters generally questioned the feasibility of determining a tipping point. No commenters offered a recommended tipping point. Moreover, most commenters stated that a tipping point is not a valid consideration for various reasons, including that tipping points will vary based upon each entitys budget and other mandates, and costs that are too high will be addressed by the limitations of the undue financial and administrative burdens defense in the program accessibility requirement and that a tipping point must be weighed against quality of life issues, which are difficult to quantify. 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. Forty-five individuals testified in person or by phone. Congress clearly intended to prohibit exclusion from drug treatment programs of the very individuals who need such programs because of their use of drugs, but, once an individual has been admitted to a program, abstention may be a necessary and appropriate condition to continued participation. The Department is also amending its title II regulation, which prohibits discrimination on the basis of disability in State and local government services, concurrently with the publication of this rule in this issue of the Federal Register. 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. Some commenters argued that Sec.36.210 does not go far enough, and that the regulation should prohibit smoking in all places of public accommodation. (c) Other laws. (g) Movie theater captioning and audio description. 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. The regulation does not give exclusive responsibility to either party. Program accessibility has proven to be a useful approach and was adopted in the regulations issued for programs and activities conducted by Federal Executive agencies. They also asserted that it would be difficult technologically to provide accessible seating for sale in real time over the Internet, or that to do so would require simplifying the rules concerning the purchase of multiple additional accompanying seats. The Department is aware that this rule may require some administrative changes but believes that this process will not create undue financial and administrative burdens. All accessible areas in a homeless shelter in an altered facility may be located on one level. Consequently a separate exemption for saunas and steam rooms would have been superfluous. The Department did not issue proposed regulations as part of its NPRM, and thus is unable to issue specific regulatory language on Web site accessibility at this time. Each year the Department receives many complaints concerning failed reservations. The result of the review will take the form of guidance from the Assistant Attorney General as to whether and in what respects the model code is consistent with the ADAs requirements. Several of the testing entities expressed concern that the Departments preamble language might require testing companies to accept documentation from persons with temporary or questionable disabilities, making test scores less reliable, harming persons with legitimate entitlements, and resulting in additional expense for testing companies to accommodate more test takers. Consequently, individuals who bring their own lift to transfer onto the bed cannot independently get themselves onto the bed. The Department asked in the NPRM whether this rule was sufficient to effectuate the integration of individuals with disabilities. While the proposed rule expressly included television decoder equipment as an auxiliary aid or service, it did not mention captioning itself. Individuals who use wheelchairs historically have been relegated to inferior seating in the back of assembly areas separate from accompanying family members and friends. legislative history as indicating congressional intent that the ADA did not In addition to title III of the ADA, universities and schools that are recipients of Federal financial assistance also are subject to section 504, which contains its own accessibility requirements currently through the application of UFAS. Subsequently, when the Department published its NPRM in June 2008, several regulatory proposals were included to address concerns raised by the small business community in ANPRM comments. facilities, and doctors offices) and requires newly constructed or altered places of public accommodationas well as commercial facilities (privately Finally, the Joint Comment recommended that the Department require every movie Therefore, the Department will retain the examples that involve less apparent disabilities on the list of predictable assessments. Another comment in opposition to the lower reach range requirement was submitted on behalf of a chain of convenience stores with fuel stops. In addition to suppressing the story, Twitter locked out The Post from its main Twitter account after demanding the removal of six tweets which The Post refused. 106; AG Order No. This part does not preclude the prohibition of, or the imposition of restrictions on, smoking in transportation covered by this part. See 76FR16978, 17009 (Mar. ADAAG consists of nine main sections and a separate appendix. A substantial number of commenters suggested that additional examples be added to this list. Advocates for persons with disabilities and individuals commented that they appreciated the improvements in the 2004 ADAAG standards for ALS, including specifications for the ALS systems and performance standards. Id. The Department recognizes that such devices or technology may provide effective communication and in some circumstances may be effective for some persons, but the Department does not intend to require that every entity covered by title II provide every device or all new technology at all times as long as the communication that is provided is as effective as communication with others. Additionally, movie studios are supporting those efforts by providing accessibility tracks (captioning and video description) in many digital cinema content packages. It is not uncommon for an airport passenger terminal or train station, for example, to have only two floors, with gates on both floors. By maintaining the two-tiered approach to mobility devices and defining wheelchair separately from other power-driven mobility device, the Department is able to preserve the protection users of traditional wheelchairs and other manually powered mobility aids have had since the ADA was enacted, while also recognizing that human ingenuity, personal choice, and new technologies have led to the use of devices that may be more beneficial for individuals with certain mobility disabilities. Additional guidance on this issue can be found in a number of agreements entered into with health care providers and hospitals that are available on the Departments Web site at http://www.ada.gov. Sections 35.108(d)(1)(v) and 36.105(d)(1)(v)Comparisons to most people in the population, and impairment need not prevent or significantly or severely restrict a major life activity. Finally, a separate exemption would have created confusion as to whether, or when, to apply the exemption or the readily achievable standard. Such seats may include wheelchair spaces. It is important to note, however, that the inclusion of this weight does not suggest that individuals without IEPs or Section 504 Plans are not also entitled to receive testing accommodations. One must also evaluate the degree to which any parent entity has resources that may be allocated to the local facility. Although one commenter noted that wild animals bred in captivity should be permitted to be service animals, the Department has decided to make clear that all wild animals, whether born or bred in captivity or in the wild, are eliminated from coverage as service animals. Notion does offer a free plan, but its only for personal use. Based on our scan system, we have determined that these flags are possibly false positives. Many commenters asked that "traumatic brain injury be added to the list in paragraph (1)(i). Saunas and steam rooms. As discussed below, the Department has revised both the regulatory text at 35.108(f) and 36.105(f) and its guidance on the application of the transitory and minor exception to the regarded as prong. Thus, with respect to supplemental requirements, the existing readily achievable standard best maximizes accessibility in the built environment without imposing unnecessary burdens on public accommodations. The second installment of Elon Musks Twitter Files dropped Thursday night and reveals how the social media giant was secretly blacklisting conservative tweets and users. The final rule, therefore, does not impose any new obligation in this area. Titles II and III of the ADA generally became effective on January 26, 1992, six months after the regulations were published. Communication. majority of individuals who are deaf or hard of hearing because such devices Full compliance will be considered structurally impracticable only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features. They have been referenced in Federal playground construction and safety guidelines and have been used voluntarily when many play areas across the country have been altered or constructed. The Department has considered all the comments and has concluded that it should not include the Segway PT in the definition of wheelchair. The final rule provides that the test for categorizing a device as a wheelchair or an other power-driven mobility device is whether the device is designed primarily for use by individuals with mobility disabilities. Section 36.406(a) adopts the 2004 ADAAG as part of the 2010 Standards and establishes the compliance date and triggering events for the application of those standards to both new construction and alterations. 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. VRI is a fee-based interpreting service conveyed via videoconferencing where at least one person, typically the interpreter, is at a separate location. Many of the comments received from business organizations, as well as those from some individuals and disability rights groups, addressed the relationship of the ADA requirements and their enforcement, to existing State and local codes and code enforcement systems. The Departments enforcement experience with assembly areas also has revealed that venues regularly provide for and make last-minute seat transfers. Section 35.134 implements section 503 of the ADA, which prohibits retaliation against any individual who exercises his or her rights under the Act. This is enabled by combining transportation services from public and private transportation providers through a unified gateway that creates and manages the trip, which users can pay for with a single account. However, the Department wants to permit State and local code administrators to have maximum flexibility, so the Department will leave open the possibility for case-by-case review to determine if a State has successfully met the burden of demonstrating that its accessibility codes or other laws meet or exceed the ADA requirements. It means a benign program is wrongfully flagged as malicious due to an overly broad detection signature or algorithm used in an antivirus program. Thus, where a public accommodation attempted barrier removal but full compliance with the 1991 Standards was not readily achievable, the modified element does not fall within the scope of the safe harbor provision. The Act requires that, to the maximum extent feasible, facilities must be accessible to, and usable by, individuals with disabilities. In the NPRM, in paragraph (1) of the definition in 35.104, the Department proposed replacing the term telecommunications devices for deaf persons (TDD) with the term text telephones (TTYs). TTY has become the commonly accepted term and is consistent with the terminology used by the Access Board in the 2004 ADAAG. Although a public entity is not required to take actions that would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens, it nevertheless must take any other steps necessary to ensure that individuals with disabilities receive the benefits or services provided by the public entity. visually impaired movie patrons, recommended at least eight audio description (a) General. Section 4.1.6(1)(j) deals with technical infeasibility. (i) Granting temporary, preliminary, or permanent relief; Many commenters agreed that drive-in movie theaters should not be subject to the requirements of paragraph (g) because the technology still does not exist to exhibit movies with closed movie captioning and audio description in this setting. Residential housing, including housing in an educational setting, is also covered by the FHAct, which requires newly constructed multifamily housing to include certain features of accessible and adaptable design. 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. clear in the final rule, the rule does not impose obligations on independent For title II entities, the path of travel requirements are of significance in those cases where an alteration is being made solely for reasons other than program accessibility. Generally, factors to be considered in determining whether an interpreter is required include the context in which the communication is taking place, the number of people involved, and the importance of the communication. listening devices in accordance with the requirements in Table 219.3 of the 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. The ADA Amendments Act amended the ADA definition of disability to clarify its coverage of persons with disabilities and to provide guidance on the application of the definition. As explained above, auxiliary aids and services are those aids and services required to provide effective communications. Undated internal company messages showed Gadde and others discussing how the company would cite concern that the story was based on hacked materials, even though it had no evidence to support that notion. Unless specifically stated otherwise, advisory notes, appendix notes, and figures contained in the 1991 Standards and 2010 Standards explain or illustrate the requirements of the rule; they do not establish enforceable requirements. 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. Parents or guardians, including foster parents, who are individuals with disabilities, may need to interact with child services agencies on behalf of their children; in such a circumstance, the child services agencies would need to provide appropriate auxiliary aids and services to those parents or guardians. Under the 1991 Standards, if an existing elevator is altered, only that altered elevator must comply with the new construction requirements for accessible elevators to the maximum extent feasible. NBC had been frequently criticised in past years by American athletes and IPC officials for its minimal coverage of past Paralympics, and it was speculated by critics that NBC's history of inadequate coverage may have impacted New York City's bid for the 2012 Summer Olympics and Paralympics. All governmental activities of public entities are covered, even if they are carried out by contractors. (1) Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992. The other Federal agencies include the Equal Employment Opportunity Commission, which is the agency primarily responsible for enforcement of title I of the ADA, the Department of Labor, which is the agency responsible for enforcement of section 503 of the Rehabilitation Act of 1973, and 26 Federal agencies with programs of Federal financial assistance, which are responsible for enforcing section 504 in those programs. This rule does not contain any paperwork or recordkeeping requirements and does not require clearance under the PRA. The Departments second question asked whether there are particular concerns about the obligation to provide accessible seating, including a wheelchair space, to an individual with a disability who purchases an inaccessible seat through the secondary market. 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. Each captioning device and each audio description device must be properly maintained by the movie theater to ensure that each device is fully operational, available to patrons in a timely manner, and easily usable by patrons. child pornography, he wrote. 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. The Department is not persuaded that individuals who need to reserve accessible rooms cannot be served in the same manner as those who do not, and it appears that there are hotels of all types and sizes that already meet this requirement. Some are double-occupancy rooms with a shared toilet and bathing room, which may be inside or outside the unit. The Department intends to publish a supplemental rule to amend the regulatory definition of disability to implement the changes mandated by that law. 632; 13 CFR part 121. In the NPRM, the Department proposed 35.151(g)(2) which prohibits wheelchair spaces and companion seating locations from being located on, (or obstructed by) temporary platforms or other moveable structures. Through its enforcement actions, the Department discovered that some venues place wheelchair spaces and companion seats on temporary platforms that, when removed, reveal conventional seating underneath, or cover the wheelchair spaces and companion seats with temporary platforms on top of which they place risers of conventional seating. 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. Most business commenters expressed concern that permitting the use of other power-driven mobility devices by individuals with mobility disabilities would make such devices akin to wheelchairs and would require them to make physical changes to their facilities to accommodate their use. Other commenters asserted that certain species of animals (e.g., reptiles) cannot be trained to do work or perform tasks, so these animals would not be covered. 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. Section 36.403 Alterations: Path of Travel. This common-sense rule provides the guidance necessary to enable public entities to properly implement the nondiscrimination requirements of the ADA. The ADA delegates to the Attorney General the responsibility for issuing regulations that define the parameters of covered entities obligations when the statute does not directly address an issue. at 34485. In any action or administrative proceeding commenced pursuant to the Act or this part, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual. 2, at 18 (2008). As a practical matter, a public accommodations designation of a guest room as accessible will not ensure necessarily that the room complies with all of the 1991 Standards. this formula, a movie theater that is initially required to have 6 devices and Consequently, rarely, if ever, is any inquiry or assessment as to their appropriateness for use in a public accommodation necessary. Construction on the line began in May 2015, while operations commenced on (i) A public accommodation shall provide a minimum number of fully operational captioning devices at its movie theaters in accordance with the following Table: (4) Minimum requirements for audio description devices. who are deaf or hard of hearing at some showings of movies available with A testing entity should consider an applicants past use of a particular auxiliary aid or service. After consideration of all relevant information presented on the issue, it is the Departments view that these exceptions and exemptions should not be retained in the final rule. These results also indicate that IBC 2000 and IBC 2006 respectively have the highest and lowest expected NPVs. Noting the practice of holding back tickets, one advocacy group suggested that covered entities be required to hold back accessible seating in proportion to the number of tickets that are held back for later release. The Department believes that movie theaters are able to determine (iv) Communicate effectively with individuals with disabilities, including those who are deaf or hard of hearing or who are blind or have low vision, about how to use, operate, and resolve problems with captioning devices and audio description devices. If the ownership right is for accessible seating, the public accommodation is required to adopt a process that allows an eligible individual with a disability who requires the features of such seating to purchase the rights and tickets for such seating. (iii) Sales limited to fewer than four tickets. An inmate, for example, who needs education, substance abuse treatment, and sex offender counseling may be transferred between facilities in order to meet his needs. The Department operates a toll-free ADA Information Line (800) 5140301(voice); (800) 5140383 (TTY) that the public is welcome to call at any time to obtain assistance in understanding anything in this rule. 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