28 C.F.R. 35 app A to Part 35 Guidance to Revisions to Ada Regulation On Nondiscrimination On the Basis of Disability In State and Local Government Services

• Library: Code of Federal Regulations
• Edition: 2023 Edition
• Currency: Current through September 30, 2023

NOTE: This Appendix contains guidance providing a section-by-section analysis of the revisions to 28 CFR part 35 published on September 15, 2010.

SECTION-BY-SECTION ANALYSIS AND RESPONSE TO PUBLIC COMMENTS

This section provides a detailed description of the Department's changes to the title II regulation, the reasoning behind those changes, and responses to public comments received on these topics. The Section-by-Section Analysis follows the order of the title II regulation itself, except that, if the Department has not changed a regulatory section, the unchanged section has not been mentioned.

SUBPART A-GENERAL

Section 28undefined35.104 Definitions.

"1991 Standards" and "2004 ADAAG"

The Department has included in the final rule new definitions of both the "1991 Standards" and the "2004 ADAAG." The term "1991 Standards" refers to the ADA Standards for Accessible Design, originally published on July 26, 1991, and republished as Appendix D to part 36. The term "2004 ADAAG" refers to ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines, which were issued by the Access Board on July 23, 2004, 36 CFR 1191, app. B and D (2009), and which the Department has adopted in this final rule. These terms are included in the definitions section for ease of reference.

"2010 Standards"

The Department has added to the final rule a definition of the term "2010 Standards." The term "2010 Standards" refers to the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG and the requirements contained in §35.151.

"Auxiliary Aids and Services"

In the NPRM, the Department proposed revisions to the definition of auxiliary aids and services under §35.104 to include several additional types of auxiliary aids that have become more readily available since the promulgation of the 1991 title II regulation, and in recognition of new technology and devices available in some places that may provide effective communication in some situations.

The NPRM proposed adding an explicit reference to written notes in the definition of "auxiliary aids." Although this policy was already enunciated in the Department's 1993 Title II Technical Assistance Manual at II-7.1000, the Department proposed inclusion in the regulation itself because some Title II entities do not understand that exchange of written notes using paper and pencil is an available option in some circumstances. See Department of Justice, The Americans with Disabilities Act, Title II Technical Assistance Manual Covering State and Local Government Programs and Services (1993), available at http://www.ada.gov/taman2.html . Comments from several disability advocacy organizations and individuals discouraged the Department from including the exchange of written notes in the list of available auxiliary aids in §35.104. Advocates and persons with disabilities requested explicit limits on the use of written notes as a form of auxiliary aid because, they argue, most exchanges are not simple and are not communicated effectively using handwritten notes. One major advocacy organization, for example, noted that the speed at which individuals communicate orally or use sign language averages about 200 words per minute or more while exchange of notes often leads to truncated or incomplete communication. For persons whose primary language is American Sign Language (ASL), some commenters pointed out, using written English in exchange of notes often is ineffective because ASL syntax and vocabulary is dissimilar from English. By contrast, some commenters from professional medical associations sought more specific guidance on when notes are allowed, especially in the context of medical offices and health care situations.

Exchange of notes likely will be effective in situations that do not involve substantial conversation, for example, blood work for routine lab tests or regular allergy shots. Video Interpreting Services (hereinafter referred to as "video remote interpreting services" or VRI) or an interpreter should be used when the matter involves greater complexity, such as in situations requiring communication of medical history or diagnoses, in conversations about medical procedures and treatment decisions, or when giving instructions for care at home or elsewhere. In the Section-By-Section Analysis of §35.160 (Communications) below, the Department discusses in greater detail the kinds of situations in which interpreters or captioning would be necessary. 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 Department's Web site at http://www.ada.gov .

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. Commenters representing advocates and persons with disabilities expressed approval of the substitution of TTY for TDD in the proposed regulation.

Commenters also expressed the view that the Department should expand paragraph (1) of the definition of auxiliary aids to include "TTY's and other voice, text, and video-based telecommunications products and systems such as videophones and captioned telephones." The Department has considered these comments and has revised the definition of "auxiliary aids" to include references to voice, text, and video-based telecommunications products and systems, as well as accessible electronic and information technology.

In the NPRM, the Department also proposed including a reference in paragraph (1) to a new technology, Video Interpreting Services (VIS). The reference remains in the final rule. VIS is discussed in the Section-By-Section Analysis below in reference to §35.160 (Communications), but is referred to as VRI in both the final rule and Appendix A to more accurately reflect the terminology used in other regulations and among users of the technology.

In the NPRM, the Department noted that technological advances in the 18 years since the ADA's enactment had increased the range of auxiliary aids and services for those who are blind or have low vision. As a result the Department proposed additional examples to paragraph (2) of the definition, including Brailled materials and displays, screen reader software, optical readers, secondary auditory programs (SAP), and accessible electronic and information technology. Some commenters asked for more detailed requirements for auxiliary aids for persons with vision disabilities. The Department has decided it will not make additional changes to that provision at this time.

Several comments suggested expanding the auxiliary aids provision for persons who are both deaf and blind, and in particular, to include in the list of auxiliary aids a new category, "support service providers (SSP)," which was described in comments as a navigator and communication facilitator. The Department believes that services provided by communication facilitators are already encompassed in the requirement to provide qualified interpreters. Moreover, the Department is concerned that as described by the commenters, the category of support service providers would include some services that would be considered personal services and that do not qualify as auxiliary aids. Accordingly, the Department declines to add this new category to the list at this time.

Some commenters representing advocacy organizations and individuals asked the Department to explicitly require title II entities to make any or all of the devices or technology available in all situations upon the request of the person with a disability. 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. The Department recognized in the preamble to the 1991 title II regulation that the list of auxiliary aids was "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 an attempt to do so would omit the new devices that will become available with emerging technology." 28 CFR part 35, app. A at 560 (2009). The Department continues to endorse that view; thus, the inclusion of a list of examples of possible auxiliary aids in the definition of "auxiliary aids" should not be read as a mandate for a title II entity to offer every possible auxiliary aid listed in the definition in every situation.

"Direct Threat"

In Appendix A of the Department's 1991 title II regulation, the Department included a detailed discussion of "direct threat" that, among other things, explained that "the principles established in §36.208 of the Department's [title III] regulation" were "applicable" as well to title II, insofar as "questions of safety are involved." 28 CFR part 35, app. A at 565 (2009). In the final rule, the Department has included an explicit definition...