From 6d38e8bc03b620c8e25407393e7fc978ba1249c1 Mon Sep 17 00:00:00 2001
From: Veronica Williamson <96496943+vwilliamsn@users.noreply.github.com>
Date: Tue, 19 Sep 2023 12:00:37 -0400
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@@ -112,7 +112,7 @@ The Department of Justice regulation implementing title II, 28 CFR 35.103, provi
 
 These provisions remain unchanged by the final rule. The Department recognizes that public entities subject to title II of the ADA may also be subject to title I of the ADA, which prohibits discrimination on the basis of disability in employment; section 504 of the Rehabilitation Act of 1973 and other Federal statutes that prohibit discrimination on the basis of disability in the programs and activities of recipients of Federal financial assistance; and other Federal statutes such as the Air Carrier Access Act (ACAA), 49 U.S.C. 41705 *et seq*., and the Fair Housing Act (FHAct), 42 U.S.C. 3601 *et seq*. Compliance with the Department's title II and title III regulations does not necessarily ensure compliance with other Federal statutes.
 
-Public entities that are subject to the ADA as well as other Federal disability discrimination laws must be aware of the requirements of all applicable laws and must comply with these laws and their implementing regulations. Although in many cases similar provisions of different statutes are interpreted to impose similar requirements, there are circumstances in which similar provisions are applied differently because of the nature of the covered entity or activity or because of distinctions between the statutes. For example, emotional support animals that do not qualify as service animals under the Department's title II regulation may nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the FHAct and the ACAA. *See, \*e.g., Mutual Homes, Inc. v. Spencer\**, 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public entities that operate housing facilities must ensure that they apply the reasonable accommodation requirements of the FHAct in determining whether to allow a particular animal needed by a person with a disability into housing and may not use the ADA definition as a justification for reducing their FHAct obligations. In addition, nothing in the ADA prevents a covered entity subject to one statute from modifying its policies and providing greater access in order to assist individuals with disabilities in achieving access to entities subject to other Federal statutes. For example, a public airport is a title II facility that houses air carriers subject to the ACAA. The public airport operator is required to comply with the title II requirements, but is not covered by the ACAA. Conversely, the air carrier is required to comply with the ACAA, but is not covered by title II of the ADA. If a particular animal is a service animal for purposes of the ACAA and is thus allowed on an airplane, but is not a service animal for purposes of the ADA, nothing in the ADA prohibits an airport from allowing a ticketed passenger with a disability who is traveling with a service animal that meets the ACAA's definition of a service animal to bring that animal into the facility even though under the ADA's definition of service animal the animal could be lawfully excluded.
+Public entities that are subject to the ADA as well as other Federal disability discrimination laws must be aware of the requirements of all applicable laws and must comply with these laws and their implementing regulations. Although in many cases similar provisions of different statutes are interpreted to impose similar requirements, there are circumstances in which similar provisions are applied differently because of the nature of the covered entity or activity or because of distinctions between the statutes. For example, emotional support animals that do not qualify as service animals under the Department's title II regulation may nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the FHAct and the ACAA. \*See, \*e.g., Mutual Homes, Inc. v. Spencer\*\*, 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public entities that operate housing facilities must ensure that they apply the reasonable accommodation requirements of the FHAct in determining whether to allow a particular animal needed by a person with a disability into housing and may not use the ADA definition as a justification for reducing their FHAct obligations. In addition, nothing in the ADA prevents a covered entity subject to one statute from modifying its policies and providing greater access in order to assist individuals with disabilities in achieving access to entities subject to other Federal statutes. For example, a public airport is a title II facility that houses air carriers subject to the ACAA. The public airport operator is required to comply with the title II requirements, but is not covered by the ACAA. Conversely, the air carrier is required to comply with the ACAA, but is not covered by title II of the ADA. If a particular animal is a service animal for purposes of the ACAA and is thus allowed on an airplane, but is not a service animal for purposes of the ADA, nothing in the ADA prohibits an airport from allowing a ticketed passenger with a disability who is traveling with a service animal that meets the ACAA's definition of a service animal to bring that animal into the facility even though under the ADA's definition of service animal the animal could be lawfully excluded.
 
 In addition, public entities (including AMTRAK) that provide public transportation services that are subject to subtitle B of title II should be reminded that the Department's regulation, at 28 CFR 35.102, provides: "(a) Except as provided in paragraph (b) of this section, this part applies to all services, programs, and activities provided or made available by public entities. (b) To the extent that public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA, 42 U.S.C. 12141 *et seq*., they are not subject to the requirements of this part." The ADA regulations of DOT at 49 CFR 37.21(c) state that entities subject to DOT's ADA regulations may also be subject to the ADA regulations of the Department of Justice. As stated in the preamble to &sect; 37.21(c) in DOT's 1991 regulation, "[t]he DOT rules apply only to the entity's transportation facilities, vehicles, or services; the DOJ rules may cover the entity's activities more broadly." 56 FR 45584, 45736 (Sept. 6, 1991). Nothing in this final rule alters these provisions.
 
@@ -142,7 +142,7 @@ In the NPRM, the Department kept open the possibility that, if warranted by publ
 
 *Executive Order 12866* This rule has been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. The Department has evaluated its existing regulations for title II and title III section by section, and many of the provisions in the final rule for both titles reflect its efforts to mitigate any negative effects on small entities. A Final Regulatory Impact Analysis (Final RIA or RIA) was prepared by the Department's contractor, HDR|HLB Decision Economics, Inc. (HDR). In accordance with Executive Order 12866, as amended, and OMB Circular A–4, the Department has reviewed and considered the Final RIA and has accepted the results of this analysis as its assessment of the benefits and costs of the final rules.
 
-Executive Order 12866 refers explicitly not only to monetizable costs and benefits but also to "distributive impacts" and "equity," *see* E.O. 12866, section 1(a), and it is important to recognize that the ADA is intended to provide important benefits that are distributional and equitable in character. The ADA states, "[i]t is the purpose of this [Act] (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; [and] (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities[.]" 42 U.S.C. 12101(b). Many of the benefits of this rule stem from the provision of such standards, which will promote inclusion, reduce stigma and potential embarrassment, and combat isolation, segregation, and second-class citizenship of individuals with disabilities. Some of these benefits are, in the words of Executive Order 12866, "difficult to quantify, but nevertheless essential to consider." E.O. 12866, section 1(a). The Department has considered such benefits here.
+Executive Order 12866 refers explicitly not only to monetizable costs and benefits but also to "distributive impacts" and "equity," *see* E.O. 12866, section 1(a), and it is important to recognize that the ADA is intended to provide important benefits that are distributional and equitable in character. The ADA states, "[i]t is the purpose of this [Act](1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; [and](2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities[.]" 42 U.S.C. 12101(b). Many of the benefits of this rule stem from the provision of such standards, which will promote inclusion, reduce stigma and potential embarrassment, and combat isolation, segregation, and second-class citizenship of individuals with disabilities. Some of these benefits are, in the words of Executive Order 12866, "difficult to quantify, but nevertheless essential to consider." E.O. 12866, section 1(a). The Department has considered such benefits here.
 
 *Final Regulatory Impact Analysis* The Final RIA embodies a comprehensive benefit-cost analysis of the final rules for both title II and title III and assesses the incremental benefits and costs of the 2010 Standards relative to a primary baseline scenario (1991 Standards). In addition, the Department conducted additional research and analyses for requirements having the highest negative net present values under the primary baseline scenario. This approach was taken because, while the 1991 Standards are the only uniform set of accessibility standards that apply to public accommodations, commercial facilities, and State and local government facilities nationwide, it is also understood that many State and local jurisdictions have already adopted IBC/ANSI model code provisions that mirror those in the 2004 ADAAG. The assessments based on this approach assume that covered entities currently implementing codes that mirror the 2004 ADAAG will not need to modify their code requirements once the rules are finalized. They also assume that, even without the final rules, the current level of compliance would be unchanged. The Final RIA contains specific information, including data in chart form, detailing which States have already adopted the accessibility standards for this subset of six requirements. The Department believes that the estimates resulting from this approach represent a reasonable upper and lower measure of the likely effects these requirements will have that the Department was able to quantify and monetize.
 
@@ -241,13 +241,13 @@ The final rule also has been reviewed by the Small Business Administration's Off
 
 Section 604(a) lists the specific requirements for a FRFA. The Department has addressed these RFA requirements throughout the ANPRM, NPRM, the 2010 Standards, and the RIA. In summary, the Department has satisfied its FRFA obligations under section 604(a) by providing the following:
 
-<p>1. \_Succinct summaries of the need for, and objectives of, the final rules.\_ The Department is issuing this final rule in order to comply with its obligations under both the ADA and the SBREFA. The Department is also updating or amending certain provisions of the existing title II regulations so that they are consistent with the title III regulations and accord with the Department's legal and practical experiences in enforcing the ADA.</p>
+<p>1. \\_Succinct summaries of the need for, and objectives of, the final rules.\\_ The Department is issuing this final rule in order to comply with its obligations under both the ADA and the SBREFA. The Department is also updating or amending certain provisions of the existing title II regulations so that they are consistent with the title III regulations and accord with the Department's legal and practical experiences in enforcing the ADA.</p>
 
 The ADA requires the Department to adopt enforceable accessibility standards under the ADA that are consistent with the Access Board's minimum accessibility guidelines and requirements. Accordingly, this rule adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 Standards, which will give the guidelines legal effect with respect to the Department's title II and title III regulations.
 
 Under the SBREFA, the Department is required to perform a periodic review of its 1991 rule because the rule may have a significant economic impact on a substantial number of small entities. The SBREFA also requires the Department to make a regulatory assessment of the costs and benefits of any significant regulatory action. *See* preamble sections of the final rules for titles II and III entitled, "Summary" and "The Department's Rulemaking History"; Department of Justice ANPRM, 69 FR 58768, 58768–70 (Sept. 30, 2004) (outlining the regulatory history, goals, and rationale underlying DOJ's proposal to revise its regulations implementing titles II and III of the ADA); Department of Justice NPRM, 73 FR 34508, 34508– 14 (June 17, 2008) (outlining the regulatory history and rationale underlying DOJ's proposal to revise its regulations implementing titles II and III of the ADA).
 
-<p>2. \_Summaries of significant issues raised by public comments in response to the Department's initial regulatory flexibility analysis (IRFA) and discussions of regulatory revisions made as a result of such comments.\_ The Department received no comments addressing specific substantive issues regarding the IRFA for the title II NPRM. However, the Office of Advocacy (Advocacy) of the U.S. Small Business Administration did provide specific comments on the title III NPRM, which may be relevant to the title II IRFA. Accordingly, the Department has included those comments here.</p>
+<p>2. \\_Summaries of significant issues raised by public comments in response to the Department's initial regulatory flexibility analysis (IRFA) and discussions of regulatory revisions made as a result of such comments.\\_ The Department received no comments addressing specific substantive issues regarding the IRFA for the title II NPRM. However, the Office of Advocacy (Advocacy) of the U.S. Small Business Administration did provide specific comments on the title III NPRM, which may be relevant to the title II IRFA. Accordingly, the Department has included those comments here.</p>
 
 Advocacy acknowledged how the Department took into account the comments and concerns of small entities. However, Advocacy remained concerned about certain items in the Department's NPRM and requested clarification or additional guidance on certain items.
 
@@ -265,11 +265,11 @@ Some business commenters stated that the final rules would require them to devel
 
 Finally, commenters representing business interests expressed the view that the final rules would cause businesses to incur significant legal costs in order to defend ADA lawsuits. However, regulatory impact analyses are not an appropriate forum for assessing the cost covered entities may bear, or the repercussions they may face, for failing to comply (or allegedly failing to comply) with current law. *See* Final RIA, Ch. 3, section 3.1.4, *id.*, at Ch. 5, *id.* at table 15.
 
-<p>3. \_Estimates of the number and type of small entities to which the final rules will apply.\_ The Department estimates that the final rules will apply to approximately 89,000 facilities operated by small governmental jurisdictions covered by title II. \_See\_ Final RIA, Ch. 7, "Small Business Impact Analysis," table 17, and app. 5, "Small Business Data of the RIA" (available for review at _[http://www.ada.gov]({{ '/' | relative\_url }})\_); \*see also\* 73 FR 36964 (June 30, 2008), app. B: Initial Regulatory Assessment, sections entitled, "Regulatory Alternatives," "Regulatory Proposals with Cost Implications," and "Measurement of Incremental Benefits" (estimating the number of small entities the Department believes may be impacted by the NPRM and calculating the likely incremental economic impact of these rules on small facilities or entities versus "typical" (\_i.e.\_, average-sized) facilities or entities).</p>
+<p>3. \\_Estimates of the number and type of small entities to which the final rules will apply.\\_ The Department estimates that the final rules will apply to approximately 89,000 facilities operated by small governmental jurisdictions covered by title II. \\_See\\_ Final RIA, Ch. 7, "Small Business Impact Analysis," table 17, and app. 5, "Small Business Data of the RIA" (available for review at _[http://www.ada.gov]({{ '/' | relative\\_url }})\\_); \\*see also\\* 73 FR 36964 (June 30, 2008), app. B: Initial Regulatory Assessment, sections entitled, "Regulatory Alternatives," "Regulatory Proposals with Cost Implications," and "Measurement of Incremental Benefits" (estimating the number of small entities the Department believes may be impacted by the NPRM and calculating the likely incremental economic impact of these rules on small facilities or entities versus "typical" (\\_i.e.\\_, average-sized) facilities or entities).</p>
 
-<p>4. \_A description of the projected reporting, record-keeping, and other compliance requirements of the final rules, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.\_ The final rules impose no new recordkeeping or reporting requirements. \_See\_ preamble sections of the final rule for titles II and III entitled, "Paperwork Reduction Act." Small entities may incur costs as a result of complying with the final rules. These costs are detailed in the Final RIA, Chapter 7, "Small Business Impact Analysis" and accompanying Appendix 5, "Small Business Data" (available for review at [\_http://www.ada.gov\_]({{ '/' | relative_url }}).</p>
+<p>4. \\_A description of the projected reporting, record-keeping, and other compliance requirements of the final rules, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.\\_ The final rules impose no new recordkeeping or reporting requirements. \\_See\\_ preamble sections of the final rule for titles II and III entitled, "Paperwork Reduction Act." Small entities may incur costs as a result of complying with the final rules. These costs are detailed in the Final RIA, Chapter 7, "Small Business Impact Analysis" and accompanying Appendix 5, "Small Business Data" (available for review at [\\_http://www.ada.gov\\_]({{ '/' | relative_url }}).</p>
 
-<p>5. \_Descriptions of the steps taken by the Department to minimize any significant economic impact on small entities consistent with the stated objectives of the ADA, including the reasons for selecting the alternatives adopted in the final rules and for rejecting other significant alternatives.\_ From the outset of this rulemaking, the Department has been mindful of small entities and has taken numerous steps to minimize the impact of the final rule on small governmental jurisdictions. Several of these steps are summarized below.</p>
+<p>5. \\_Descriptions of the steps taken by the Department to minimize any significant economic impact on small entities consistent with the stated objectives of the ADA, including the reasons for selecting the alternatives adopted in the final rules and for rejecting other significant alternatives.\\_ From the outset of this rulemaking, the Department has been mindful of small entities and has taken numerous steps to minimize the impact of the final rule on small governmental jurisdictions. Several of these steps are summarized below.</p>
 
 As an initial matter, the Department— as a voting member of the Access Board—was extensively involved in the development of the 2004 ADAAG. These guidelines, which are incorporated into the 2010 Standards, reflect a conscious effort to mitigate any significant economic impact on small entities in several respects. First, one of the express goals of the 2004 ADAAG is harmonization of Federal accessibility guidelines with industry standards and model codes that often form the basis of State and local building codes, thereby minimizing the impact of these guidelines on all covered entities, but especially small entities. Second, the 2004 ADAAG is the product of a 10-year rulemaking effort in which a host of private and public entities, including groups representing government entities, worked cooperatively to develop accessibility guidelines that achieved an appropriate balance between accessibility and cost. For example, as originally recommended by the Access Board's Recreation Access Advisory Committee, all holes on a miniature golf course would be required to be accessible except for sloped surfaces where the ball could not come to rest. *See*, *e.g.*, "ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities and Outdoor Developed Areas," Access Board Advance Notice of Proposed Rulemaking, 59 FR 48542 (Sept. 21, 1994). Miniature golf trade groups and facility operators, who are nearly all small businesses or small governmental jurisdictions, expressed significant concern that such requirements would be prohibitively expensive, require additional space, and might fundamentally alter the nature of their courses. *See*, *e.g.*, "ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities," Access Board Notice of Proposed Rulemaking, 64 FR 37326 (July 9, 1999). In consideration of such concerns, and after holding informational meetings with miniature golf representatives and persons with disabilities, the Access Board significantly revised the final miniature golf guidelines. The final guidelines not only reduced significantly the number of holes required to be accessible to 50 percent of all holes (with one break in the sequence of consecutive holes permitted), but also added an exemption for carpets used on playing surfaces, modified ramp landing slope and size requirements, and reduced the space *See*,*e.g.*, "ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities Final Rule," 67 FR 56352, 56375B76 (Sept. 3, 2002) (codified at 36 CFR parts 1190 and 1191).
 
@@ -337,7 +337,7 @@ Administrative practice and procedure, Buildings and facilities, Civil rights, C
 
 ### &sect; 35.101 Purpose and broad coverage.
 
-(a) Purpose. The purpose of this part is to **implement** subtitle A of title II of the Americans with Disabilities Act of 1990 (42 U.S. C. 12131**–12134**), **as amended by the ADA Amendments Act of 2008 (ADA Amendments Act) (Public Law 110–325, 122 Stat. 3553 (2008)**, which prohibits discrimination on the basis of disability by public entities.
+(a) Purpose. The purpose of this part is to **implement** subtitle A of title II of the Americans with Disabilities Act of 1990 (42 U.S. C. 12131**–12134**), **as amended by the ADA Amendments Act of 2008 (ADA Amendments Act) (Public Law 110–325, 122 Stat. 3553 (2008))**, which prohibits discrimination on the basis of disability by public entities.
 
 **(b) Broad coverage. The primary purpose of the ADA Amendments Act is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with the ADA Amendments Act&rsquo;s purpose of reinstating a broad scope of protection under the ADA, the definition of &ldquo;disability&rdquo; in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.**
 
@@ -2270,7 +2270,7 @@ As set out in the final rule, &sect; 35.160(b)(2) states, in pertinent part, tha
 
 The second sentence of &sect; 35.160(b)(2) of the final rule restores the "primary consideration" obligation set out at &sect; 35.160(b)(2) in the 1991 title II regulation. This provision was inadvertently omitted from the NPRM, and the Department agrees with the many commenters on this issue that this provision should be retained. As noted in the preamble to the 1991 title II regulation, and reaffirmed here: "The public entity shall honor the choice [of the individual with a disability] unless it can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under &sect; 35.164. Deference to the request of the individual with a disability is desirable because of the range of disabilities, the variety of auxiliary aids and services, and different circumstances requiring effective communication." 28 CFR part 35, app. A at 580 (2009).
 
-The first sentence in &sect; 35.160(b)(2) codifies the axiom that the type of auxiliary aid or service necessary to ensure effective communication will vary with the situation, and provides factors for consideration in making the determination, including the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. Inclusion of this language under title II is consistent with longstanding policy in this area. *See, e.g., The Americans with Disabilities Act Title II Technical Assistance Manual Covering State and Local Government Programs and Services*, section II–7.1000, available at *<https://archive.ada.gov/taman2.html>{: .word-break}* ("The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved. \* \* * Sign language or oral interpreters, for example, may be required when the information being communicated in a transaction with a deaf individual is complex, or is exchanged for a lengthy period of time. 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."); *See* also 28 CFR part 35, app. A at 580 (2009). As explained in the NPRM, an individual who is deaf or hard of hearing may need a qualified interpreter to communicate with municipal hospital personnel about diagnoses, procedures, tests, treatment options, surgery, or prescribed medication (*e.g.*, dosage, side effects, drug interactions, etc.), or to explain follow-up treatments, therapies, test results, or recovery. In comparison, in a simpler, shorter interaction, the method to achieve effective communication can be more basic. An individual who is seeking local tax forms may only need an exchange of written notes to achieve effective communication.
+The first sentence in &sect; 35.160(b)(2) codifies the axiom that the type of auxiliary aid or service necessary to ensure effective communication will vary with the situation, and provides factors for consideration in making the determination, including the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. Inclusion of this language under title II is consistent with longstanding policy in this area. *See, e.g., The Americans with Disabilities Act Title II Technical Assistance Manual Covering State and Local Government Programs and Services*, section II–7.1000, available at *<https://archive.ada.gov/taman2.html>{: .word-break}* ("The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved. \* \*  *Sign language or oral interpreters, for example, may be required when the information being communicated in a transaction with a deaf individual is complex, or is exchanged for a lengthy period of time. 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.");* See *also 28 CFR part 35, app. A at 580 (2009). As explained in the NPRM, an individual who is deaf or hard of hearing may need a qualified interpreter to communicate with municipal hospital personnel about diagnoses, procedures, tests, treatment options, surgery, or prescribed medication (*e.g.*, dosage, side effects, drug interactions, etc.), or to explain follow-up treatments, therapies, test results, or recovery. In comparison, in a simpler, shorter interaction, the method to achieve effective communication can be more basic. An individual who is seeking local tax forms may only need an exchange of written notes to achieve effective communication.
 
 Section 35.160(c)(1) has been added to the final rule to make clear that a public entity shall not require an individual with a disability to bring another individual to interpret for him or her. The Department receives many complaints from individuals who are deaf or hard of hearing alleging that public entities expect them to provide their own sign language interpreters. Proposed &sect; 35.160(c)(1) was intended to clarify that when a public entity is interacting with a person with a disability, it is the public entity's responsibility to provide an interpreter to ensure effective communication. It is not appropriate to require the person with a disability to bring another individual to provide such services.