Guidance 2010 ada_standards_prt

Guidance on the
2010 ADA Standards
for Accessible Design

Department of Justice
September 15, 2010

Reproduction of this document is encouraged.

This publication may be viewed or downloaded
from the ADA website (www.ADA.gov).
Additional copies may be obtained
by calling the ADA Information Line:

800-514-0301 (voice)
800-514-0383 (TTY)

September 15, 2010

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Contents

1 Introduction........…………………....….………......1

2 State and Local Government Facilities:
Guidance on the Revisions to 28 CFR 35.151....3

3 Public Accommodations and Commercial
Facilities: Guidance on the Revisions
to 28 CFR part 36, subpart D.............…….……..39

4 Appendix B to part 36: Analysis and
Commentary on the 2010 ADA Standards
for Accessible Design…......................................69

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1 Introduction
The Department of Justice published its revised regulations for
Titles II and III of the Americans with Disabilities Act of 1990 “ADA”
in the Federal Register on September 15, 2010, which include
the 2010 Standards for Accessible Design “2010 Standards” or
“Standards”. In the revised regulations, the Department included
detailed guidance with a section-by-section analysis of the
revisions.

The following includes guidance from the revised regulations
related to 28 CFR 35.151; 28 CFR part 36, subpart D; and
the 2004 ADAAG. It addresses changes to the Standards,
the reasoning behind those changes, and responses to public
comments received on these topics

For More Information
For information about the ADA, including the revised 2010 ADA
regulations, please visit the Department’s website www.ADA.
gov; or, for answers to specific questions, call the toll-free ADA
Information Line at 800-514-0301 (voice) or 800-514-0383 (TTY).

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2 State and Local
Government Facilities

3

4 - Guidance on 2010 Standards: Title II Department of Justice

Section 35.151 -- Title II Regulation

State and Local Government Section 35.151(b) Alterations
Facilities: Guidance on the
The 1991 title II regulation does not con-
Revisions to 28 CFR Section tain any specific regulatory language com-
35.151 parable to the 1991 title III regulation relating
to alterations and path of travel for cov-
Section 35.151(a), which provided that ered entities, although the 1991 Standards
those facilities that are constructed or altered describe standards for path of travel during
by, on behalf of, or for the use of a public alterations to a primary function. See 28 CFR
entity shall be designed, constructed, or part 36, app A., section 4.1.6(a) (2009).
altered to be readily accessible to and usable
by individuals with disabilities, is unchanged The path of travel requirements con-
in the final rule, but has been redesignated tained in the title III regulation are based
as Sec. 35.151(a)(1). The Department has on section 303(a)(2) of the ADA, 42 U.S.C.
added a new section, designated as Sec. 12183(a)(2), which provides that when an
35.151(a)(2), to provide that full compliance entity undertakes an alteration to a place of
with the requirements of this section is not public accommodation or commercial facil-
required where an entity can demonstrate ity that affects or could affect the usabil-
that it is structurally impracticable to meet ity of or access to an area that contains
the requirements. Full compliance will be a primary function, the entity shall ensure
considered structurally impracticable only in that, to the maximum extent feasible, the
those rare circumstances when the unique path of travel to the altered area--and the
characteristics of terrain prevent the incorpo- restrooms, telephones, and drinking foun-
ration of accessibility features. This excep- tains serving it--is readily accessible to
tion was contained in the title III regulation and usable by individuals with disabilities,
and in the 1991 Standards (applicable to including individuals who use wheelchairs.
both public accommodations and facilities
used by public entities), so it has applied The NPRM proposed amending
to any covered facility that was constructed Sec. 35.151 to add both the path of travel
under the 1991 Standards since the effective requirements and the exemption relating
date of the ADA. The Department added it to barrier removal (as modified to apply to
to the text of Sec. 35.151 to maintain con- the program accessibility standard in title
sistency between the design requirements II) that are contained in the title III regula-
that apply under title II and those that apply tion to the title II regulation. Proposed
under title III. The Department received no Sec. 35.151(b)(4) contained the require-
significant comments about this section. ments for path of travel. Proposed

Department of Justice Guidance on 2010 Standards: Title II - 5


Sec. 35.151(b)(2) stated that the path of The Department is not changing the
travel requirements of Sec. 35.151(b)(4) shall requirements for program accessibility. As
not apply to measures taken solely to comply provided in Sec. 35.151(b)(2) of the regula-
with program accessibility requirements. tion, the path of travel requirements of Sec.
35.151(b)(4) only apply to alterations under-
Where the specific requirements for path taken solely for purposes other than to meet
of travel apply under title III, they are lim- the program accessibility requirements.
ited to the extent that the cost and scope The exemption for the specific path of travel
of alterations to the path of travel are dis- requirement was included in the regula-
proportionate to the cost of the overall tion to ensure that the specific requirements
alteration, as determined under criteria and disproportionality exceptions for path of
established by the Attorney General. travel are not applied when areas are being
altered to meet the title II program accessibil-
The Access Board included the path of ity requirements in Sec. 35.150. In contrast,
travel requirement for alterations to facilities when areas are being altered to meet pro-
covered by the standards (other than those gram accessibility requirements, they must
subject to the residential facilities standards) comply with all of the applicable require-
in section 202.4 of 2004 ADAAG. Section ments referenced in section 202 of the 2010
35.151(b)(4)(iii) of the final rule establishes Standards. A covered title II entity must pro-
the criteria for determining when the cost of vide accessibility to meet the requirements
alterations to the path of travel is “dispropor- of Sec. 35.150 unless doing so is an undue
tionate’’ to the cost of the overall alteration. financial and administrative burden in accor-
dance with Sec. 35.150(a)(3). A covered title
The NPRM also provided that areas II entity may not use the disproportionality
such as supply storage rooms, employee exception contained in the path of travel pro-
lounges and locker rooms, janitorial closets, visions as a defense to providing an acces-
entrances, and corridors are not areas con- sible route as part of its obligation to provide
taining a primary function. Nor are restroom program accessibility. The undue financial
areas considered to contain a primary func- and administrative burden standard does
tion unless the provision of restrooms is a not contain any bright line financial tests.
primary purpose of the facility, such as at a
highway rest stop. In that situation, a rest- The Department’s proposed
room would be considered to be an “area Sec. 35.151(b)(4) adopted the language
containing a primary function’’ of the facility. now contained in Sec. 36.403 of the title
III regulation, including the disproportion-
ality limitation (i.e., alterations made to



provide an accessible path of travel to the ensure that persons with disabilities can get
altered area would be deemed dispropor- to the physical location in which programs
tionate to the overall alteration when the are held. Otherwise, they will not be able to
cost exceeds 20 percent of the cost of the access the public entity’s service, program,
alteration to the primary function area). or activity. Such access is a cornerstone of
Proposed Sec. 35.151(b)(2) provided that the protections provided by the ADA. Another
the path of travel requirements do not apply commenter argued that it would be a waste of
to alterations undertaken solely to comply money to create an accessible facility without
with program accessibility requirements. having a way to get to the primary area. This
commenter also stated that the International
The Department received a substan- Building Code (IBC) requires the path of trav-
tial number of comments objecting to the el to a primary function area, up to 20 percent
Department’s adoption of the exemption for of the cost of the project. Another commenter
the path of travel requirements when altera- opposed the exemption, stating that the trig-
tions are undertaken solely to meet program ger of an alteration is frequently the only
accessibility requirements. These comment- time that a facility must update its facilities to
ers argued that the Department had no statu- comply with evolving accessibility standards.
tory basis for providing this exemption nor
does it serve any purpose. In addition, these In the Department’s view, the comment-
commenters argued that the path of travel ers objecting to the path of travel exemption
exemption has the effect of placing new limi- contained in Sec. 35.151(b)(2) did not under-
tations on the obligations to provide program stand the intention behind the exemption.
access. A number of commenters argued that The exemption was not intended to eliminate
doing away with the path of travel require- any existing requirements related to acces-
ment would render meaningless the concept sibility for alterations undertaken in order
of program access. They argued that just as to meet program access obligations under
the requirement to provide an accessible path Sec. 35.149 and Sec. 35.150. Rather, it was
of travel to an altered area (regardless of the intended to ensure that covered entities did
reason for the alteration), including making not apply the path of travel requirements in
the restrooms, telephones, and drinking foun- lieu of the overarching requirements in this
tains that serve the altered area accessible, Subpart that apply when making a facility
is a necessary requirement in other altera- accessible in order to comply with program
tions, it is equally necessary for alterations accessibility. The exemption was also intend-
made to provide program access. Several ed to make it clear that the disproportionality
commenters expressed concern that a read- test contained in the path of travel standards
ily accessible path of travel be available to is not applicable in determining whether



providing program access results in an undue burden, the public entity would nevertheless
financial and administration burden within the be required to take some other action that
meaning of Sec. 35.150(a)(3). The exemp- would not result in such an alteration or such
tion was also provided to maintain consis- burdens but would ensure that the benefits
tency with the title III path of travel exemption and services provided by the public entity are
for barrier removal, see Sec. 36.304(d), in readily accessible to persons with disabilities.
keeping with the Department’s regulatory When the public entity is making modifica-
authority under title II of the ADA. See 42 tions to meet its program access obligation,
U.S.C. 12134(b); see also H. R Rep. No. it may not rely on the path of travel excep-
101B485, pt. 2, at 84 (1990) (“The committee tion under Sec. 35.151(b)(4), which limits
intends, however, that the forms of discrimi- the requirement to those alterations where
nation prohibited by section 202 be identi- the cost and scope of the alterations are
cal to those set out in the applicable provi- not disproportionate to the cost and scope
sions of titles I and III of this legislation.’’). of the overall alterations. If the public entity
later decides to alter courtrooms in the other
For title II entities, the path of travel building, for purposes of updating the facility
requirements are of significance in those (and, as previously stated, has met its pro-
cases where an alteration is being made gram access obligations) then in that case,
solely for reasons other than program acces- the public entity would have to comply with
sibility. For example, a public entity might the path of travel requirements in the 2010
have six courtrooms in two existing buildings Standards subject to the disproportionality
and might determine that only three of those exception set forth in Sec. 35.151(b)(4).
courtrooms and the public use and common
use areas serving those courtrooms in one The Department has slightly revised pro-
building are needed to be made accessible posed Sec. 35.151(b)(2) to make it clearer
in order to satisfy its program access obliga- that the path of travel requirements only
tions. When the public entity makes those apply when alterations are undertaken solely
courtrooms and the public use and common for purposes other than program accessibility.
use areas serving them accessible in order
to meet its program access obligations, it Section 35.151(b)(4)(ii)(C)
will have to comply with the 2010 Standards Path of travel--safe harbor
unless the public entity can demonstrate that
full compliance would result in undue finan- In Sec. 35.151(b)(4)(ii)(C) of the NPRM, the
cial and administrative burdens as described Department included a provision that stated
in Sec. 35.150(a)(3). If such action would that public entities that have brought required
result in an undue financial or administrative elements of path of travel into compliance



with the 1991 Standards are not required implements that delegation of authority.
to retrofit those elements in order to reflect One commenter proposed that a previ-
incremental changes in the 2010 Standards ous record of barrier removal be one of
solely because of an alteration to a primary the factors in determining, prospectively,
function area that is served by that path what renders a facility, when viewed in
of travel. In these circumstances, the pub- its entirety, usable and accessible to
lic entity is entitled to a safe harbor and is persons with disabilities. Another com-
only required to modify elements to comply menter asked the Department to clarify,
with the 2010 Standards if the public entity at a minimum, that to the extent compli-
is planning an alteration to the element. ance with the 1991 Standards does not
provide program access, particularly with
A substantial number of commenters regard to areas not specifically addressed
objected to the Department’s imposition of in the 1991 Standards, the safe harbor
a safe harbor for alterations to facilities of will not operate to relieve an entity of its
public entities that comply with the 1991 obligations to provide program access.
Standards. These commenters argued
that if a public entity is already in the pro- One commenter supported the proposal
cess of altering its facility, there should be to add a safe harbor for path of travel.
a legal requirement that individuals with
disabilities be entitled to increased acces- The final rule retains the safe harbor
sibility by using the 2010 Standards for for required elements of a path of travel to
path of travel work. They also stated that altered primary function areas for public enti-
they did not believe there was a statu- ties that have already complied with the 1991
tory basis for “grandfathering’’ facilities Standards with respect to those required
that comply with the 1991 Standards. elements. The Department believes that this
safe harbor strikes an appropriate balance
The ADA is silent on the issue of “grand- between ensuring that individuals with dis-
fathering’’ or establishing a safe harbor for abilities are provided access to buildings and
measuring compliance in situations where facilities and potential financial burdens on
the covered entity is not undertaking a existing public entities that are undertaking
planned alteration to specific building ele- alterations subject to the 2010 Standards.
ments. The ADA delegates to the Attorney This safe harbor is not a blanket exemption
General the responsibility for issuing regula- for facilities. If a public entity undertakes an
tions that define the parameters of covered alteration to a primary function area, only
entities’ obligations when the statute does the required elements of a path of travel to
not directly address an issue. This regulation that area that already comply with the 1991



Standards are subject to the safe harbor. If Section 35.151(c) Accessibility
a public entity undertakes an alteration to a standards for new construction and
primary function area and the required ele- alterations
ments of a path of travel to the altered area
do not comply with the 1991 Standards, then Section 35.151(c) of the NPRM proposed
the public entity must bring those elements to adopt ADA Chapter 1, ADA Chapter 2, and
into compliance with the 2010 Standards. Chapters 3 through 10 of the Americans with
Disabilities Act and Architectural Barriers
Section 35.151(b)(3) Act Guidelines (2004 ADAAG) into the ADA
Alterations to historic facilities Standards for Accessible Design (2010
Standards). As the Department has noted,
The final rule renumbers the requirements the development of these standards repre-
for alterations to historic facilities enumer- sents the culmination of a lengthy effort by
ated in current Sec. 35.151(d)(1) and (2) as the Access Board to update its guidelines,
Sec. 35.151(b)(3)(i) and (ii). Currently, the to make the Federal guidelines consistent to
regulation provides that alterations to his- the extent permitted by law, and to harmonize
toric facilities shall comply to the maximum the Federal requirements with the private
extent feasible with section 4.1.7 of UFAS sector model codes that form the basis of
or section 4.1.7 of the 1991 Standards. See many State and local building code require-
28 CFR 35.151(d)(1). Section 35.151(b)(3) ments. The full text of the 2010 Standards
(i) of the final rule eliminates the option of is available for public review on the ADA
using UFAS for alterations that commence Home Page (http://www.ada.gov) and on the
on or after March 15, 2012. The substan- Access Board’s Web site (http://www.access-
tive requirement in current Sec. 35.151(d) board.gov/gs.htm) (last visited June 24,
(2)--that alternative methods of access shall 2010). The Access Board site also includes
be provided pursuant to the requirements an extensive discussion of the develop-
of Sec. 35.150 if it is not feasible to provide ment of the 2004 ADA/ABA Guidelines,
physical access to an historic property in and a detailed comparison of the 1991
a manner that will not threaten or destroy Standards, the 2004 ADA/ABA Guidelines,
the historic significance of the building or and the 2003 International Building Code.
facility--is contained in Sec. 35.151(b)(3)(ii).
Section 204 of the ADA, 42 U.S.C. 12134,
directs the Attorney General to issue regula-
tions to implement title II that are consistent
with the minimum guidelines published by



the Access Board. The Attorney General Section 35.151(c) of the 1991 title II
(or his designee) is a statutory member of regulation establishes two standards for
the Access Board (see 29 U.S.C. 792(a) accessible new construction and alteration.
(1)(B(vii)) and was involved in the develop- Under paragraph (c), design, construction,
ment of the 2004 ADAAG. Nevertheless, or alteration of facilities in conformance with
during the process of drafting the NPRM, UFAS or with the 1991 Standards (which,
the Department reviewed the 2004 ADAAG at the time of the publication of the rule
to determine if additional regulatory provi- were also referred to as the Americans with
sions were necessary. As a result of this Disabilities Act Accessibility Guidelines for
review, the Department decided to propose Buildings and Facilities (1991 ADAAG)) is
new sections, which were contained in deemed to comply with the requirements
Sec. 35.151(e)(h) of the NPRM, to clarify of this section with respect to those facili-
how the Department will apply the proposed ties (except that if the 1991 Standards are
standards to social service center estab- chosen, the elevator exemption does not
lishments, housing at places of education, apply). The 1991 Standards were based on
assembly areas, and medical care facilities. the 1991 ADAAG, which was initially devel-
Each of these provisions is discussed below. oped by the Access Board as guidelines for
the accessibility of buildings and facilities
Congress anticipated that there would that are subject to title III. The Department
be a need for close coordination of the ADA adopted the 1991 ADAAG as the standards
building requirements with State and local for places of public accommodation and
building code requirements. Therefore, the commercial facilities under title III of the
ADA authorized the Attorney General to ADA and it was published as Appendix A
establish an ADA code certification process to the Department’s regulation implement-
under title III of the ADA. That process is ing title III, 56 FR 35592 (July 26, 1991) as
addressed in 28 CFR part 36, subpart F. amended, 58 FR 17522 (April 5, 1993), and
Revisions to that process are addressed in as further amended, 59 FR 2675 (Jan. 18,
the regulation amending the title III regula- 1994), codified at 28 CFR part 36 (2009).
tion published elsewhere in the Federal
Register today. In addition, the Department Section 35.151(c) of the final rule adopts
operates an extensive technical assistance the 2010 Standards and establishes the
program. The Department anticipates that compliance date and triggering events for
once this rule is final, revised technical the application of those standards to both
assistance material will be issued to pro- new construction and alterations. Appendix
vide guidance about its implementation. B of the final title III rule (Analysis and



Commentary on the 2010 ADA Standards for 42 U.S.C. 12183(a)(1). For new construction
Accessible Design) (which will be published under title III, the requirements applied
today elsewhere in this volume and codified to facilities designed and constructed for
as Appendix B to 28 CFR part 36) provides a first occupancy after January 26, 1993--
description of the major changes in the 2010 18 months after the 1991 Standards were
Standards (as compared to the 1991 ADAAG) published by the Department. In the NPRM,
and a discussion of the public comments that the Department proposed to amend
the Department received on specific sections Sec. 35.151(c)(1) by revising the current
of the 2004 ADAAG. A number of comment- language to limit the application of the 1991
ers asked the Department to revise certain standards to facilities on which construction
provisions in the 2004 ADAAG in a manner commences within six months of the final
that would reduce either the required scop- rule adopting revised standards. The NPRM
ing or specific technical accessibility require- also proposed adding paragraph (c)(2) to
ments. As previously stated, although the Sec. 35.151, which states that facilities on
ADA requires the enforceable standards which construction commences on or after
issued by the Department under title II and the date six months following the effective
title III to be consistent with the minimum date of the final rule shall comply with the
guidelines published by the Access Board, proposed standards adopted by that rule.
it is the sole responsibility of the Attorney
General to promulgate standards and to As a result, under the NPRM, for the first
interpret and enforce those standards. The six months after the effective date, public
guidelines adopted by the Access Board are entities would have the option to use either
“minimum guidelines.’’ 42 U.S.C. 12186(c). UFAS or the 1991 Standards and be in
compliance with title II. Six months after the
Compliance date. When the ADA was effective date of the rule, the new standards
enacted, the effective dates for various would take effect. At that time, construction
provisions were delayed in order to provide in accordance with UFAS would no longer
time for covered entities to become familiar satisfy ADA requirements. The Department
with their new obligations. Titles II and III stated that in order to avoid placing the bur-
of the ADA generally became effective on den of complying with both standards on
January 26, 1992, six months after the public entities, the Department would coor-
regulations were published. See 42 U.S.C. dinate a government-wide effort to revise
12131 note; 42 U.S.C. 12181 note. New Federal agencies’ section 504 regulations
construction under title II and alterations to adopt the 2004 ADAAG as the standard
under either title II or title III had to comply for new construction and alterations.
with the design standards on that date. See



The purpose of the proposed six-month that the effective date be extended to at least
delay in requiring compliance with the 2010 18 months after the publication of the rule.
Standards was to allow covered entities a One of these commenters expressed con-
reasonable grace period to transition between cern that the kinds of bureaucratic organiza-
the existing and the proposed standards. For tions subject to the title II regulations lack
that reason, if a title II entity preferred to use the internal resources to quickly evaluate the
the 2010 Standards as the standard for new regulatory changes, determine whether they
construction or alterations commenced within are currently compliant with the 1991 stan-
the six-month period after the effective date dards, and determine what they have to do
of the final rule, such entity would be consid- to comply with the new standards. The other
ered in compliance with title II of the ADA. commenter argued that 18 months is the
minimum amount of time necessary to ensure
The Department received a number of that projects that have already been designed
comments about the proposed six-month and approved do not have to undergo costly
effective date for the title II regulation that design revisions at taxpayer expense.
were similar in content to those received on
this issue for the proposed title III regula- The Department is persuaded by the con-
tion. Several commenters supported the six- cerns raised by commenters for both the
month effective date. One commenter stated title II and III regulations that the six-month
that any revisions to its State building code compliance date proposed in the NPRM for
becomes effective six months after adop- application of the 2010 Standards may be
tion and that this has worked well. In addi- too short for certain projects that are already
tion, this commenter stated that since 2004 in the midst of the design and permitting
ADAAG is similar to IBC 2006 and ICC/ANSI process. The Department has determined
A117.1-2003, the transition should be easy. that for new construction and alterations,
By contrast, another commenter advocated compliance with the 2010 Standards will
for a minimum 12-month effective date, argu- not be required until 18 months from the
ing that a shorter effective date could cause date the final rule is published. Until the
substantial economic hardships to many cit- time compliance with the 2010 Standards is
ies and towns because of the lengthy lead required, public entities will have the option
time necessary for construction projects. of complying with the 2010 Standards, the
This commenter was concerned that a six- UFAS, or the 1991 Standards. However,
month effective date could lead to projects public entities that choose to comply with
having to be completely redrawn, rebid, and the 2010 Standards in lieu of the 1991
rescheduled to ensure compliance with the Standards or UFAS prior to the compliance
new standards. Other commenters advocated date described in this rule must choose



one of the three standards, and may not Section 234 of the 2010 Standards pro-
rely on some of the requirements contained vides accessibility guidelines for newly
in one standard and some of the require- designed and constructed amusement rides.
ments contained in the other standards. The amusement ride provisions do not pro-
vide a “triggering event’’ for new construc-
Triggering event. In Sec. 35.151(c)(2) of the tion or alteration of an amusement ride. An
NPRM, the Department proposed that the industry commenter requested that the trig-
commencement of construction serve as the gering event of “first use,’’ as noted in the
triggering event for applying the proposed Advisory note to section 234.1 of the 2004
standards to new construction and alterations ADAAG, be included in the final rule. The
under title II. This language is consistent with Advisory note provides that “[a] custom
the triggering event set forth in designed and constructed ride is new upon
Sec. 35.151(a) of the 1991 title II regula- its first use, which is the first time amusement
tion. The Department received only four park patrons take the ride.’’ The Department
comments on this section of the title II declines to treat amusement rides differ-
rule. Three commenters supported the ently than other types of new construction
use of “start of construction’’ as the trig- and alterations. Under the final rule, they are
gering event. One commenter argued that subject to Sec. 35.151(c). Thus, newly con-
the Department should use the “last build- structed and altered amusement rides shall
ing permit or start of physical construction, comply with the 2010 Standards if the start
whichever comes first,’’ stating that “alter- of physical construction or the alteration is
ing a design after a building permit has on or after 18 months from the publication
been issued can be an undue burden.’’ date of this rule. The Department also notes
that section 234.4.2 of the 2010 Standards
After considering these comments, the only applies where the structural or opera-
Department has decided to continue to use tional characteristics of an amusement ride
the commencement of physical construc- are altered. It does not apply in cases where
tion as the triggering event for application of the only change to a ride is the theme.
the 2010 Standards for entities covered by
title II. The Department has also added Noncomplying new construction and
clarifying language at Sec. 35.151(c) alterations. The element-by-element safe
(4) to the regulation to make it clear that harbor referenced in Sec. 35.150(b)(2)
the date of ceremonial groundbreaking has no effect on new or altered elements
or the date a structure is razed to make in existing facilities that were subject to
it possible for construction of a facility to the 1991 Standards or UFAS on the date
take place does not qualify as the com- that they were constructed or altered,
mencement of physical construction.



but do not comply with the technical and to the operational requirements established in
scoping specifications for those elements this final rule. Although the Department may
in the 1991 Standards or UFAS. Section use the requirements of the 2010 Standards
35.151(c)(5) of the final rule sets forth the as a guide to determining when and how
rules for noncompliant new construction or to make equipment and furnishings acces-
alterations in facilities that were subject to sible, those determinations fall within the
the requirements of this part. Under those discretionary authority of the Department.
provisions, noncomplying new construction
and alterations constructed or altered The Department also wishes to clarify
after the effective date of the applicable that the advisory notes, appendix notes,
ADA requirements and before March 15, and figures that accompany the 1991 and
2012 shall, before March 15, 2012, be 2010 Standards do not establish separately
made accessible in accordance with either enforceable requirements unless specifically
the 1991 Standards, UFAS, or the 2010 stated otherwise in the text of the standards.
Standards. Noncomplying new construction This clarification has been made to address
and alterations constructed or altered after concerns expressed by ANPRM comment-
the effective date of the applicable ADA ers who mistakenly believed that the advi-
requirements and before March 15, 2012, sory notes in the 2004 ADAAG established
shall, on or after March 15, 2012 be made requirements beyond those established in the
accessible in accordance with the 2010 text of the guidelines (e.g., Advisory 504.4
Standards. suggests, but does not require, that cov-
ered entities provide visual contrast on stair
Section 35.151(d) Scope of coverage tread nosing to make them more visible to
individuals with low vision). The Department
In the NPRM, the Department proposed received no significant comments on this
a new provision, Sec. 35.151(d), to clarify section and it is unchanged in the final rule.
that the requirements established by
Sec. 35.151, including those contained in Definitions of residential facilities and
the 2004 ADAAG, prescribe what is neces- transient lodging. The 2010 Standards add
sary to ensure that buildings and facilities, a definition of “residential dwelling unit’’ and
including fixed or built-in elements in new or modify the current definition of “transient
altered facilities, are accessible to individu- lodging.’’ Under section 106.5 of the 2010
als with disabilities. Once the construction or Standards, “residential dwelling unit’’ is
alteration of a facility has been completed, defined as “[a] unit intended to be used
all other aspects of programs, services, and as a residence, that is primarily long-term
activities conducted in that facility are subject in nature’’ and does not include transient



lodging, inpatient medical care, licensed serving those crew quarters to meet the
long-term care, and detention or correctional 2004 ADAAG. In addition, the commenter
facilities. Additionally, section 106.5 of the argued that applying the transient lodging
2010 Standards changes the definition of standards would impose significant costs
“transient lodging’’ to a building or facility and create living space that is less usable
“containing one or more guest room(s) for for most emergency response personnel.
sleeping that provides accommodations that
are primarily short-term in nature.’’ “Transient The ADA does not exempt spaces because
lodging’’ does not include residential dwelling of a belief or policy that excludes persons
units intended to be used as a residence. with disabilities from certain work. However,
The references to “dwelling units’’ and the Department believes that crew quarters
“dormitories’’ that are in the definition of the that are used exclusively as a residence
1991 Standards are omitted from the 2010 by emergency response personnel and the
Standards. kitchens and bathrooms exclusively serv-
ing those quarters are more like residential
The comments about the application of dwelling units and are therefore covered
transient lodging or residential standards by the residential dwelling standards in the
to social service center establishments, 2010 Standards, not the transient lodging
and housing at a place of education are standards. The residential dwelling stan-
addressed separately below. The Department dards address most of the concerns of the
received one additional comment on this commenter. For example, the commenter
issue from an organization representing was concerned that sinks in kitchens and
emergency response personnel seeking lavatories in bathrooms that are accessible
an exemption from the transient lodging under the transient lodging standards would
accessibility requirements for crew quar- be too low to be comfortably used by emer-
ters and common use areas serving those gency response personnel. The residential
crew quarters (e.g., locker rooms, exercise dwelling standards allow such features to
rooms, day room) that are used exclusively be adaptable so that they would not have to
by on-duty emergency response person- be lowered until accessibility was needed.
nel and that are not used for any public Similarly, grab bars and shower seats would
purpose. The commenter argued that since not have to be installed at the time of con-
emergency response personnel must meet struction provided that reinforcement has
certain physical qualifications that have been installed in walls and located so as
the effect of exempting persons with mobil- to permit their installation at a later date.
ity disabilities, there is no need to build
crew quarters and common use areas



Section 35.151(e) substantial percentage of social service cen-
Social service center establishments ter establishments are recipients of Federal
financial assistance from the Department of
In the NPRM, the Department proposed a Housing and Urban Development (HUD). The
new Sec. 35.151(e) requiring group homes, Department of Health and Human Services
halfway houses, shelters, or similar social (HHS) also provides financial assistance
service center establishments that provide for the operation of shelters through the
temporary sleeping accommodations or Administration for Children and Families pro-
residential dwelling units to comply with the grams. As such, these establishments are
provisions of the 2004 ADAAG that apply to covered both by the ADA and section 504
residential facilities, including, but not limited of the Rehabilitation Act. UFAS is currently
to, the provisions in sections 233 and 809. the design standard for new construction
and alterations for entities subject to section
The NPRM explained that this proposal 504. The two design standards for accessi-
was based on two important changes in bility--the 1991 Standards and UFAS--have
the 2004 ADAAG. First, for the first time, confronted many social service providers
residential dwelling units are explicitly cov- with separate, and sometimes conflicting,
ered in the 2004 ADAAG in section 233. requirements for design and construction
Second, the 2004 ADAAG eliminates the of facilities. To resolve these conflicts, the
language contained in the 1991 Standards residential facilities standards in the 2004
addressing scoping and technical require- ADAAG have been coordinated with the sec-
ments for homeless shelters, group homes, tion 504 requirements. The transient lodging
and similar social service center establish- standards, however, are not similarly coordi-
ments. Currently, such establishments are nated. The deletion of section 9.5 of the 1991
covered in section 9.5 of the transient lodg- Standards from the 2004 ADAAG presented
ing section of the 1991 Standards. The two options: (1) Require coverage under the
deletion of section 9.5 creates an ambigu- transient lodging standards, and subject such
ity of coverage that must be addressed. facilities to separate, conflicting requirements
for design and construction; or (2) require
The NPRM explained the Department’s coverage under the residential facilities stan-
belief that transferring coverage of social dards, which would harmonize the regulatory
service center establishments from the tran- requirements under the ADA and section 504.
sient lodging standards to the residential The Department chose the option that harmo-
facilities standards would alleviate conflict- nizes the regulatory requirements: coverage
ing requirements for social service center under the residential facilities standards.
providers. The Department believes that a



In the NPRM, the Department expressed confusion and inaction that are sometimes
concern that the residential facilities stan- caused by the current existence of mul-
dards do not include a requirement for clear tiple requirements. One commenter also
floor space next to beds similar to the require- stated that “it makes sense to treat social
ment in the transient lodging standards and service center establishments like resi-
as a result, the Department proposed adding dential facilities because this is how these
a provision that would require certain social establishments function in practice.’’
service center establishments that provide
sleeping rooms with more than 25 beds to Two commenters agreed with apply-
ensure that a minimum of 5 percent of the ing the residential facilities requirements
beds have clear floor space in accordance to social service center establishments
with section 806.2.3 or 2004 ADAAG. but recommended adding a require-
ment for various bathing options, such
In the NPRM, the Department requested as a roll-in shower (which is not required
information from providers who oper- under the residential standards).
ate homeless shelters, transient group
homes, halfway houses, and other social One commenter objected to the change
service center establishments, and from and asked the Department to require that
the clients of these facilities who would be social service center establishments con-
affected by this proposed change, asking, tinue to comply with the transient lodg-
“[t]o what extent have conflicts between the ing standards. One commenter stated
ADA and section 504 affected these facili- that it did not agree that the standards for
ties? What would be the effect of applying residential coverage would serve persons
the residential dwelling unit requirements with disabilities as well as the 1991 tran-
to these facilities, rather than the require- sient lodging standards. This commenter
ments for transient lodging guest rooms?’’ expressed concern that the Department
73 FR 34466, 34491 (June 17, 2008). had eliminated guidance for social service
agencies and that the rule should be put on
Many of the commenters supported apply- hold until those safeguards are restored.
ing the residential facilities requirements to Another commenter argued that the rule
social service center establishments, stat- that would provide the greatest access for
ing that even though the residential facili- persons with disabilities should prevail.
ties requirements are less demanding in
some instances, the existence of one clear Several commenters argued for the appli-
standard will result in an overall increased cation of the transient lodging standards to all
level of accessibility by eliminating the social service center establishments except



those that were “intended as a person’s place relevant provisions of section 608 of the 2010
of abode,’’ referencing the Department’s Standards. Transfer-type showers are not
question related to the definition of “place permitted in lieu of a roll-in shower with a seat
of lodging’’ in the title III NPRM. One com- and the exceptions in sections 608.3 and
menter stated that the International Building 608.4 for residential dwelling units are not
Code requires accessible units in all tran- permitted. When separate shower facilities
sient facilities. The commenter expressed are provided for men and for women, at least
concern that group homes should be built one roll-in shower shall be provided for each
to be accessible, rather than adaptable. group. This supplemental requirement to the
residential facilities standards is in addition
The Department continues to be con- to the supplemental requirement that was
cerned about alleviating the challenges for proposed in the NPRM for clear floor space
social service providers that are also subject in sleeping rooms with more than 25 beds.
to section 504 and would likely be subject
to conflicting requirements if the transient The Department also notes that while
lodging standards were applied. Thus, the dwelling units at some social service center
Department has retained the requirement that establishments are also subject to the Fair
social service center establishments comply Housing Act (FHAct) design and construc-
with the residential dwelling standards. The tion requirements that require certain fea-
Department believes, however, that social tures of adaptable and accessible design,
service center establishments that provide FHAct units do not provide the same level
emergency shelter to large transient popu- of accessibility that is required for residen-
lations should be able to provide bathing tial facilities under the 2010 Standards.
facilities that are accessible to persons with The FHAct requirements, where also appli-
mobility disabilities who need roll-in show- cable, should not be considered a sub-
ers. Because of the transient nature of the stitute for the 2010 Standards. Rather,
population of these large shelters, it will not the 2010 Standards must be followed in
be feasible to modify bathing facilities in a addition to the FHAct requirements.
timely manner when faced with a need to
provide a roll-in shower with a seat when The Department also notes that where-
requested by an overnight visitor. As a result, as the NPRM used the term “social ser-
the Department has added a requirement vice establishment,’’ the final rule uses
that social service center establishments with the term “social service center establish-
sleeping accommodations for more than 50 ment.’’ The Department has made this
individuals must provide at least one roll-in editorial change so that the final rule is
shower with a seat that complies with the consistent with the terminology used in
the ADA. See 42 U.S.C. 12181(7)(k).


Section 35.151(f) facilities, allowing covered entities to elect
Housing at a place of education to follow the residential standards contained
in UFAS. Although the 2004 ADAAG con-
The Department of Justice and the tains provisions for both residential facili-
Department of Education share responsi- ties and transient lodging, the guidelines do
bility for regulation and enforcement of the not indicate which requirements apply to
ADA in postsecondary educational settings, housing provided in an educational setting,
including its requirements for architectural leaving it to the adopting agencies to make
features. In addition, the Department of that choice. After evaluating both sets of
Housing and Urban Development (HUD) has standards, the Department concluded that
enforcement responsibility for housing sub- the benefits of applying the transient lodg-
ject to title II of the ADA. Housing facilities in ing standards outweighed the benefits of
educational settings range from traditional applying the residential facilities standards.
residence halls and dormitories to apartment Consequently, in the NPRM, the Department
or townhouse-style residences. In addition proposed a new Sec. 35.151(f) that provided
to title II of the ADA, public universities and that residence halls or dormitories operated
schools that receive Federal financial assis- by or on behalf of places of education shall
tance are also subject to section 504, which comply with the provisions of the proposed
contains its own accessibility requirements standards for transient lodging, including,
through the application of UFAS. Residential but not limited to, the provisions in sec-
housing in an educational setting is also tions 224 and 806 of the 2004 ADAAG.
covered by the FHAct, which requires newly
constructed multifamily housing to include Both public and private school housing
certain features of accessible and adaptable facilities have varied characteristics. College
design. Covered entities subject to the ADA and university housing facilities typically pro-
must always be aware of, and comply with, vide housing for up to one academic year,
any other Federal statutes or regulations that but may be closed during school vacation
govern the operation of residential properties. periods. In the summer, they are often used
for short-term stays of one to three days,
Although the 1991 Standards mention a week, or several months. Graduate and
dormitories as a form of transient lodging, faculty housing is often provided year-round
they do not specifically address how the ADA in the form of apartments, which may serve
applies to dormitories or other types of resi- individuals or families with children. These
dential housing provided in an educational housing facilities are diverse in their layout.
setting. The 1991 Standards also do not Some are double-occupancy rooms with a
contain any specific provisions for residential shared toilet and bathing room, which may be



inside or outside the unit. Others may contain Elevators are not generally required under
cluster, suite, or group arrangements where the 2004 ADAAG residential facilities stan-
several rooms are located inside a defined dards unless they are needed to provide
unit with bathing, kitchen, and similar com- an accessible route from accessible units
mon facilities. In some cases, these suites to public use and common use areas, while
are indistinguishable in features from tradi- under the 2004 ADAAG as it applies to other
tional apartments. Universities may build their types of facilities, multistory public facilities
own housing facilities or enter into agree- must have elevators unless they meet very
ments with private developers to build, own, specific exceptions. In addition, the residen-
or lease housing to the educational institution tial facilities standards do not require acces-
or to its students. Academic housing may be sible roll-in showers in bathrooms, while the
located on the campus of the university or transient lodging requirements require some
may be located in nearby neighborhoods. of the accessible units to be served by bath-
rooms with roll-in showers. The transient
Throughout the school year and the sum- lodging standards also require that a greater
mer, academic housing can become pro- number of units have accessible features
gram areas in which small groups meet, for persons with communication disabilities.
receptions and educational sessions are The transient lodging standards provide for
held, and social activities occur. The abil- installation of the required accessible fea-
ity to move between rooms--both acces- tures so that they are available immediately,
sible rooms and standard rooms--in order but the residential facilities standards allow
to socialize, to study, and to use all public for certain features of the unit to be adapt-
use and common use areas is an essential able. For example, only reinforcements for
part of having access to these educational grab bars need to be provided in residential
programs and activities. Academic housing dwellings, but the actual grab bars must be
is also used for short-term transient educa- installed under the transient lodging stan-
tional programs during the time students are dards. By contrast, the residential facilities
not in regular residence and may be rented standards do require certain features that
out to transient visitors in a manner similar provide greater accessibility within units, such
to a hotel for special university functions. as more usable kitchens, and an accessible
route throughout the dwelling. The residen-
The Department was concerned that tial facilities standards also require 5 percent
applying the new construction requirements of the units to be accessible to persons with
for residential facilities to educational hous- mobility disabilities, which is a continuation
ing facilities could hinder access to educa- of the same scoping that is currently required
tional programs for students with disabilities. under UFAS, and is therefore applicable to



any educational institution that is covered by fact homes for the students who live in them.
section 504. The transient lodging standards These commenters argued, however, that
require a lower percentage of accessible the Department should impose a requirement
sleeping rooms for facilities with large num- for a variety of options for accessible bathing
bers of rooms than is required by UFAS. For and should ensure that all floors of dormito-
example, if a dormitory had 150 rooms, the ries be accessible so that students with dis-
transient lodging standards would require abilities have the same opportunities to par-
seven accessible rooms while the residen- ticipate in the life of the dormitory community
tial standards would require eight. In a large that are provided to students without disabili-
dormitory with 500 rooms, the transient lodg- ties. Commenters representing persons with
ing standards would require 13 accessible disabilities and several individuals argued
rooms and the residential facilities standards that, although the transient lodging standards
would require 25. There are other differences may provide a few more accessible features
between the two sets of standards as well (such as roll-in showers), the residential facili-
with respect to requirements for accessible ties standards would ensure that students
windows, alterations, kitchens, accessible with disabilities have access to all rooms in
route throughout a unit, and clear floor space their assigned unit, not just to the sleeping
in bathrooms allowing for a side transfer. room, kitchenette, and wet bar. One com-
menter stated that, in its view, the residen-
In the NPRM, the Department requested tial facilities standards were congruent with
public comment on how to scope educa- overlapping requirements from HUD, and
tional housing facilities, asking, “[w]ould that access provided by the residential facili-
the residential facility requirements or the ties requirements within alterations would
transient lodging requirements in the 2004 ensure dispersion of accessible features
ADAAG be more appropriate for housing at more effectively. This commenter also argued
places of education? How would the different that while the increased number of required
requirements affect the cost when building accessible units for residential facilities as
new dormitories and other student hous- compared to transient lodging may increase
ing?’’ 73 FR 34466, 34492 (June 17, 2008). the cost of construction or alteration, this cost
would be offset by a reduced need to adapt
The vast majority of the comments rooms later if the demand for accessible
received by the Department advocated using rooms exceeds the supply. The commenter
the residential facilities standards for hous- also encouraged the Department to impose
ing at a place of education instead of the a visitability (accessible doorways and nec-
transient lodging standards, arguing that essary clear floor space for turning radius)
housing at places of public education are in requirement for both the residential facilities



and transient lodging requirements to allow The Department has determined that the
students with mobility impairments to interact best approach to this type of housing is to
and socialize in a fully integrated fashion. continue to require the application of tran-
sient lodging standards, but at the same
Two commenters supported the time to add several requirements drawn from
Department’s proposed approach. One the residential facilities standards related
commenter argued that the transient lodg- to accessible turning spaces and work sur-
ing requirements in the 2004 ADAAG would faces in kitchens, and the accessible route
provide greater accessibility and increase throughout the unit. This will ensure the main-
the opportunity of students with disabilities tenance of the transient lodging standard
to participate fully in campus life. A sec- requirements related to access to all floors
ond commenter generally supported the of the facility, roll-in showers in facilities with
provision of accessible dwelling units at more than 50 sleeping rooms, and other
places of education, and pointed out that important accessibility features not found in
the relevant scoping in the International the residential facilities standards, but will
Building Code requires accessible units also ensure usable kitchens and access
“consistent with hotel accommodations.’’ to all the rooms in a suite or apartment.

The Department has considered the com- The Department has added a new defini-
ments recommending the use of the residen- tion to Sec. 35.104, “Housing at a Place of
tial facilities standards and acknowledges Education,’’ and has revised Sec. 35.151(f)
that they require certain features that are not to reflect the accessible features that now
included in the transient lodging standards will be required in addition to the require-
and that should be required for housing pro- ments set forth under the transient lodging
vided at a place of education. In addition, standards. The Department also recognizes
the Department notes that since educational that some educational institutions provide
institutions often use their academic hous- some residential housing on a year-round
ing facilities as short-term transient lodging basis to graduate students and staff which
in the summers, it is important that acces- is comparable to private rental housing, and
sible features be installed at the outset. It is which contains no facilities for educational
not realistic to expect that the educational programming. Section 35.151(f)(3) exempts
institution will be able to adapt a unit in a from the transient lodging standards apart-
timely manner in order to provide acces- ments or townhouse facilities provided by
sible accommodations to someone attending or on behalf of a place of education that are
a one-week program during the summer. leased on a year-round basis exclusively
to graduate students or faculty, and do not



contain any public use or common use areas this section in the final rule but has clarified
available for educational programming; that the requirement applies to stadiums,
instead, such housing shall comply with the arenas, and grandstands. In addition, the
requirements for residential facilities in sec- Department has revised the phrase “wheel-
tions 233 and 809 of the 2010 Standards. chair and companion seating locations’’ to
“wheelchair spaces and companion seats.’’
Section 35.151(f) uses the term “sleep-
ing room’’ in lieu of the term “guest room,’’ Section 35.151(g)(1) ensures that there
which is the term used in the transient lodg- is greater dispersion of wheelchair spaces
ing standards. The Department is using and companion seats throughout stadi-
this term because it believes that, for the ums, arenas, and grandstands than would
most part, it provides a better description otherwise be required by sections 221 and
of the sleeping facilities used in a place 802 of the 2004 ADAAG. In some cases,
of education than “guest room.’’ The final the accessible route may not be the same
rule states that the Department intends the route that other individuals use to reach
terms to be used interchangeably in the their seats. For example, if other patrons
application of the transient lodging stan- reach their seats on the field by an inac-
dards to housing at a place of education. cessible route (e.g., by stairs), but there
is an accessible route that complies with
Section 35.151(g) section 206.3 of the 2010 Standards that
Assembly areas could be connected to seats on the field,
wheelchair spaces and companion seats
In the NPRM, the Department pro- must be placed on the field even if that route
posed Sec. 35.151(g) to supplement the is not generally available to the public.
assembly area requirements of the 2004
ADAAG, which the Department is adopting Regulatory language that was included in
as part of the 2010 Standards. The NPRM the 2004 ADAAG advisory, but that did not
proposed at Sec. 35.151(g)(1) to require appear in the NPRM, has been added by the
wheelchair spaces and companion seat- Department in Sec. 35.151(g)(2). Section
ing locations to be dispersed to all levels 35.151(g)(2) now requires an assembly
of the facility and are served by an acces- area that has seating encircling, in whole
sible route. The Department received no or in part, a field of play or performance
significant comments on this paragraph area such as an arena or stadium, to place
and has decided to adopt the proposed wheelchair spaces and companion seats
language with minor modifications. The around the entire facility. This rule, which
Department has retained the substance of is designed to prevent a public entity from



placing wheelchair spaces and compan- Department believes that permitting the use
ion seats on one side of the facility only, is of movable platforms that seat four or more
consistent with the Department’s enforce- wheelchair users and their companions have
ment practices and reflects its interpretation the potential to reduce the number of avail-
of section 4.33.3 of the 1991 Standards. able wheelchair seating spaces below the
level required, thus reducing the opportuni-
In the NPRM, the Department proposed ties for persons who need accessible seating
Sec. 35.151(g)(2) which prohibits wheel- to have the same choice of ticket prices and
chair spaces and companion seating loca- amenities that are available to other patrons
tions from being “located on, (or obstructed in the facility. In addition, use of removable
by) temporary platforms or other move- platforms may result in instances where
able structures.’’ Through its enforcement last minute requests for wheelchair and
actions, the Department discovered that companion seating cannot be met because
some venues place wheelchair spaces and entire sections of accessible seating will be
companion seats on temporary platforms lost when a platform is removed. See 73
that, when removed, reveal conventional FR 34466, 34493 (June 17, 2008). Further,
seating underneath, or cover the wheel- use of temporary platforms allows facilities
chair spaces and companion seats with to limit persons who need accessible seat-
temporary platforms on top of which they ing to certain seating areas, and to relegate
place risers of conventional seating. These accessible seating to less desirable loca-
platforms cover groups of conventional tions. The use of temporary platforms has
seats and are used to provide groups of the effect of neutralizing dispersion and other
wheelchair seats and companion seats. seating requirements (e.g., line of sight) for
wheelchair spaces and companion seats.
Several commenters requested an excep- Cf. Independent Living Resources v. Oregon
tion to the prohibition of the use of temporary Arena Corp., 1 F. Supp. 2d 1159, 1171 (D.
platforms for public entities that sell most Or. 1998) (holding that while a public accom-
of their tickets on a season-ticket or other modation may “infill’’ wheelchair spaces with
multi-event basis. Such commenters argued removable seats when the wheelchair spaces
that they should be able to use temporary are not needed to accommodate individuals
platforms because they know, in advance, with disabilities, under certain circumstances
that the patrons sitting in certain areas “[s]uch a practice might well violate the rule
for the whole season do not need wheel- that wheelchair spaces must be dispersed
chair spaces and companion seats. The throughout the arena in a manner that is
Department declines to adopt such an excep- roughly proportionate to the overall distribu-
tion. As it explained in detail in the NPRM, the tion of seating’’). In addition, using temporary



platforms to convert unsold wheelchair removable temporary individual seats appro-
spaces to conventional seating undermines priately balances their economic concerns
the flexibility facilities need to accommodate with the rights of individuals with disabilities.
secondary ticket markets exchanges as See section 221.2 of the 2010 Standards.
required by Sec. 35.138(g) of the final rule.
For stadium-style movie theaters, in
As the Department explained in the NPRM, Sec. 35.151(g)(4) of the NPRM the
however, this provision was not designed Department proposed requiring placement of
to prohibit temporary seating that increases wheelchair seating spaces and companion
seating for events (e.g., placing temporary seats on a riser or cross-aisle in the stadium
seating on the floor of a basketball court section of the theater and placement of such
for a concert). Consequently, the final rule, seating so that it satisfies at least one of
at Sec. 35.151(g)(3), has been amended the following criteria: (1) It is located within
to clarify that if an entire seating section the rear 60 percent of the seats provided
is on a temporary platform for a particular in the auditorium; or (2) it is located within
event, then wheelchair spaces and com- the area of the auditorium where the verti-
panion seats may be in that seating section. cal viewing angles are between the 40th to
However, adding a temporary platform to 100th percentile of vertical viewing angles
create wheelchair spaces and companion for all seats in that theater as ranked from
seats that are otherwise dissimilar from the first row (1st percentile) to the back
nearby fixed seating and then simply add- row (100th percentile). The vertical view-
ing a small number of additional seats to ing angle is the angle between a horizontal
the platform would not qualify as an “entire line perpendicular to the seated viewer’s
seating section’’ on the platform. In addi- eye to the screen and a line from the seated
tion, Sec. 35.151(g)(3) clarifies that facilities viewer’s eye to the top of the screen.
may fill in wheelchair spaces with removable
seats when the wheelchair spaces are not The Department proposed this bright-line
needed by persons who use wheelchairs. rule for two reasons: (1) The movie theater
industry petitioned for such a rule; and (2) the
The Department has been responsive to Department has acquired expertise on the
assembly areas’ concerns about reduced design of stadium style theaters from litigation
revenues due to unused accessible seating. against several major movie theater chains.
Accordingly, the Department has reduced See U.S. v. AMC Entertainment, 232 F.
scoping requirements significantly--by Supp. 2d 1092 (C.D. Ca. 2002), rev’d in
almost half in large assembly areas--and part, 549 F. 3d 760 (9th Cir. 2008); U.S. v.
determined that allowing assembly areas to Cinemark USA, Inc., 348 F. 3d 569 (6th Cir.
infill unsold wheelchair spaces with readily 2003), cert. denied, 542 U.S. 937 (2004).


Two industry commenters--at least one of fewer seats; stadium-style theaters of all siz-
whom otherwise supported this rule--re- es must comply with this rule. So, for exam-
quested that the Department explicitly state ple, stadium-style theaters that must vertically
that this rule does not apply retroactively to disperse wheelchair and companion seats
existing theaters. Although this rule on its must do so within the parameters of this rule.
face applies to new construction and altera-
tions, these commenters were concerned The NPRM included a provision that
that the rule could be interpreted to apply required assembly areas with more than
retroactively because of the Department’s 5,000 seats to provide at least five wheel-
statement in the ANPRM that this bright- chair spaces with at least three compan-
line rule, although newly-articulated, does ion seats for each of those five wheelchair
not represent a “substantive change from spaces. The Department agrees with com-
the existing line-of-sight requirements’’ of menters who asserted that group seating is
section 4.33.3 of the 1991 Standards. See better addressed through ticketing policies
69 FR 58768, 58776 (Sept. 30, 2004). rather than design and has deleted that pro-
vision from this section of the final rule.
Although the Department intends for
Sec. 35.151(g)(4) of this rule to apply pro- Section 35.151(h)
spectively to new construction and altera- Medical care facilities
tions, this rule is not a departure from, and is
consistent with, the line-of-sight requirements In the 1991 title II regulation, there was
in the 1991 Standards. The Department has no provision addressing the dispersion of
always interpreted the line-of-sight require- accessible sleeping rooms in medical care
ments in the 1991 Standards to require facilities. The Department is aware, however,
viewing angles provided to patrons who use of problems that individuals with disabilities
wheelchairs to be comparable to those afford- face in receiving full and equal medical care
ed to other spectators. Section 35.151(g)(4) when accessible sleeping rooms are not ade-
merely represents the application of these quately dispersed. When accessible rooms
requirements to stadium-style movie theaters. are not fully dispersed, a person with a dis-
ability is often placed in an accessible room
One commenter from a trade association in an area that is not medically appropriate
sought clarification whether Sec. 35.151(g)(4) for his or her condition, and is thus denied
applies to stadium-style theaters with more quick access to staff with expertise in that
than 300 seats, and argued that it should not medical specialty and specialized equipment.
since dispersion requirements apply in those While the Access Board did not establish
theaters. The Department declines to limit specific design requirements for dispersion
this rule to stadium-style theaters with 300 or


in the 2004 ADAAG, in response to exten- This does not require exact mathemati-
sive comments in support of dispersion it cal proportionality, which at times would be
added an advisory note, Advisory 223.1 impossible. However, it does require that
General, encouraging dispersion of acces- medical care facilities disperse their acces-
sible rooms within the facility so that accessible rooms by medical specialty so that
sible rooms are more likely to be proximate persons with disabilities can, to the extent
to appropriate qualified staff and resources. practical, stay in an accessible room within
the wing or ward that is appropriate for their
In the NPRM, the Department sought addi- medical needs. The language used in this
tional comment on the issue, asking whether rule (“in a manner that is proportionate by
it should require medical care facilities, type of medical specialty’’) is more specific
such as hospitals, to disperse their acces- than that used in the NPRM (“in a manner
sible sleeping rooms, and if so, by what that enables patients with disabilities to have
method (by specialty area, floor, or other access to appropriate specialty services’’)
criteria). All of the comments the Department and adopts the concept of proportionality
received on this issue supported dispers- proposed by the commenters. Accessible
ing accessible sleeping rooms proportionally rooms should be dispersed throughout all
by specialty area. These comments, from medical specialties, such as obstetrics,
individuals, organizations, and a building orthopedics, pediatrics, and cardiac care.
code association, argued that it would not
be difficult for hospitals to disperse rooms Section 35.151(i) Curb ramps
by specialty area, given the high level of
regulation to which hospitals are subject Section 35.151(e) on curb ramps in the
and the planning that hospitals do based 1991 rule has been redesignated as
on utilization trends. Further, commenters Sec. 35.151(i). In the NPRM, the Department
suggested that without a requirement, it is proposed making a minor editorial change
unlikely that hospitals would disperse the to this section, deleting the phrase “other
rooms. In addition, concentrating acces- sloped areas’’ from the two places in which
sible rooms in one area perpetuates seg- it appears in the 1991 title II regulation. In
regation of individuals with disabilities, the NPRM, the Department stated that the
which is counter to the purpose of the ADA. phrase “other sloped areas’’ lacks technical
precision. The Department received no sig-
The Department has decided to require nificant public comments on this proposal.
medical care facilities to disperse their acces- Upon further consideration, however, the
sible sleeping rooms in a manner that is Department has concluded that the regula-
proportionate by type of medical specialty. tion should acknowledge that there are times



when there are transitions from sidewalk to The 2010 Standards contain scoping and
road surface that do not technically qualify technical standards for residential dwell-
as “curb ramps’’ (sloped surfaces that have ing units. However, section 233.3.2 of the
a running slope that exceed 5 percent). 2010 Standards specifically defers to the
Therefore, the Department has decided not Department and to HUD, the standard-setting
to delete the phrase “other sloped areas.’’ agency under the ABA, to decide the appro-
priate scoping for those residential dwelling
Section 35.151(j) units built by or on behalf of public entities
Residential housing for sale to with the intent that the finished units will be
individual owners sold to individual owners. These programs
include, for example, HUD’s public housing
Although public entities that operate resi- and HOME programs as well as State-funded
dential housing programs are subject to title programs to construct units for sale to indi-
II of the ADA, and therefore must provide viduals. In the NPRM, the Department did
accessible residential housing, the 1991 not make a specific proposal for this scop-
Standards did not contain scoping or tech- ing. Instead, the Department stated that after
nical standards that specifically applied to consultation and coordination with HUD,
residential housing units. As a result, under the Department would make a determina-
the Department’s title II regulation, these tion in the final rule. The Department also
agencies had the choice of complying with sought public comment on this issue stat-
UFAS, which contains specific scoping and ing that “[t]he Department would welcome
technical standards for residential hous- recommendations from individuals with
ing units, or applying the ADAAG transient disabilities, public housing authorities, and
lodging standards to their housing. Neither other interested parties that have experi-
UFAS nor the 1991 Standards distinguish ence with these programs. Please comment
between residential housing provided for on the appropriate scoping for residential
rent and those provided for sale to individual dwelling units built by or on behalf of pub-
owners. Thus, under the 1991 title II regula- lic entities with the intent that the finished
tion, public entities that construct residential units will be sold to individual owners.’’
housing units to be sold to individual owners 73 FR 34466, 34492 (June 17, 2008).
must ensure that some of those units are
accessible. This requirement is in addition All of the public comments received by
to any accessibility requirements imposed the Department in response to this question
on housing programs operated by public were supportive of the Department’s ensuring
entities that receive Federal financial assis- that the residential standards apply to hous-
tance from Federal agencies such as HUD. ing built on behalf of public entities with the



intent that the finished units would be sold to disabilities. This commenter encouraged the
individual owners. The vast majority of com- Department to make sure that accessible
menters recommended that the Department for-sale units built or funded by public enti-
require that projects consisting of five or more ties are placed in a separate lottery restricted
units, whether or not the units are located to income-eligible persons with disabilities.
on one or multiple locations, comply with
the 2004 ADAAG requirements for scoping Two commenters recommended that the
of residential units, which require that 5 per- Department develop rules for four types
cent, and no fewer than one, of the dwelling of for-sale projects: single family pre-built
units provide mobility features, and that 2 (where buyer selects the unit after construc-
percent, and no fewer than one, of the dwell- tion), single family post-built (where the buyer
ing units provide communication features. chooses the model prior to its construction),
See 2004 ADAAG Section 233.3. These multi-family pre-built, and multi-family post-
commenters argued that the Department built. These commenters recommended that
should not defer to HUD because HUD has the Department require pre-built units to
not yet adopted the 2004 ADAAG and there comply with the 2004 ADAAG 233.1 scoping
is ambiguity on the scope of coverage of requirements. For post-built units, the com-
pre-built for sale units under HUD’s current menters recommended that the Department
section 504 regulations. In addition, these require all models to have an alternate
commenters expressed concern that HUD’s design with mobility features and an alter-
current regulation, 24 CFR 8.29, presumes nate design with communications features
that a prospective buyer is identified before in compliance with 2004 ADAAG. Accessible
design and construction begins so that dis- models should be available at no extra cost
ability features can be incorporated prior to the buyer. One commenter recommended
to construction. These commenters stated that, in addition to required fully accessible
that State and Federally funded homeown- units, all ground floor units should be read-
ership programs typically do not identify ily convertible for accessibility or for sensory
prospective buyers before construction has impairments technology enhancements.
commenced. One commenter stated that,
in its experience, when public entities build The Department believes that consistent
accessible for-sale units, they often sell with existing requirements under title II, hous-
these units through a lottery system that ing programs operated by public entities
does not make any effort to match persons that design and construct or alter residential
who need the accessible features with the units for sale to individual owners should
units that have those features. Thus, acces- comply with the 2010 Standards, including
sible units are often sold to persons without the requirements for residential facilities in



sections 233 and 809. These requirements adapt them at their own expense for buyers
will ensure that a minimum of 5 percent of with mobility disabilities who need acces-
the units, but no fewer than one unit, of the sible units. For example, features such
total number of residential dwelling units will as grab bars are not required but may be
be designed and constructed to be acces- added by the public entity if needed by the
sible for persons with mobility disabilities. At buyer at the time of purchase and cabi-
least 2 percent, but no fewer than one unit, nets under sinks may be designed to be
of the total number of residential dwelling removable to allow access to the required
units shall provide communication features. knee space for a forward approach.

The Department recognizes that there The Department agrees with the com-
are some programs (such as the one menters that covered entities may have to
identified by the commenter), in which make reasonable modifications to their poli-
units are not designed and constructed cies, practices, and procedures in order to
until an individual buyer is identified. In ensure that when they offer pre-built acces-
such cases, the public entity is still obligated sible residential units for sale, the units are
to comply with the 2010 Standards. In addi- offered in a manner that gives access to
tion, the public entity must ensure that pre- those units to persons with disabilities who
identified buyers with mobility disabilities and need the features of the units and who are
visual and hearing disabilities are afforded otherwise eligible for the housing program.
the opportunity to buy the accessible units. This may be accomplished, for example, by
Once the program has identified buyers who adopting preferences for accessible units
need the number of accessible units man- for persons who need the features of the
dated by the 2010 Standards, it may have units, holding separate lotteries for acces-
to make reasonable modifications to its poli- sible units, or other suitable methods hat
cies, practices, and procedures in order to result in the sale of accessible units to per-
provide accessible units to other buyers sons who need the features of such units.
with disabilities who request such units. In addition, the Department believes that
units designed and constructed or altered
The Department notes that the residen- that comply with the requirements for resi-
tial facilities standards allow for construction dential facilities and are offered for sale to
of units with certain features of adaptabil- individuals must be provided at the same
ity. Public entities that are concerned that price as units without such features.
fully accessible units are less marketable
may choose to build these units to include
the allowable adaptable features, and then



Section 35.151(k) The Department believes that the insuf-
Detention and correctional facilities ficient number of accessible cells is, in part,
due to the fact that most jails and prisons
The 1991 Standards did not contain spe- were built long before the ADA became law
cific accessibility standards applicable to and, since then, have undergone few altera-
cells in correctional facilities. However, cor- tions that would trigger the obligation to pro-
rectional and detention facilities operated by vide accessible features in accordance with
or on behalf of public entities have always UFAS or the 1991 Standards. In addition,
been subject to the nondiscrimination and the Department has found that even some
program accessibility requirements of title new correctional facilities lack accessible
II of the ADA. The 2004 ADAAG estab- features. The Department believes that the
lished specific requirements for the design unmet demand for accessible cells is also
and construction and alterations of cells due to the changing demographics of the
in correctional facilities for the first time. inmate population. With thousands of prison-
ers serving life sentences without eligibility for
Based on complaints received by the parole, prisoners are aging, and the prison
Department, investigations, and compliance population of individuals with disabilities and
reviews of jails, prisons, and other detention elderly individuals is growing. A Bureau of
and correctional facilities, the Department Justice Statistics study of State and Federal
has determined that many detention and cor- sentenced inmates (those sentenced to more
rectional facilities do not have enough acces- than one year) shows the total estimated
sible cells, toilets, and shower facilities to count of State and Federal prisoners aged
meet the needs of their inmates with mobility 55 and older grew by 36,000 inmates from
disabilities and some do not have any at all. 2000 (44,200) to 2006 (80,200). William
Inmates are sometimes housed in medical J. Sabol et al., Prisoners in 2006, Bureau
units or infirmaries separate from the gen- of Justice Statistics Bulletin, Dec. 2007, at
eral population simply because there are no 23 (app. table 7), available at http://bjs.ojp.
accessible cells. In addition, some inmates usdoj.gov/index.cfm?ty=pbdetail&iid=908
have alleged that they are housed at a more (last visited July 16, 2008); Allen J. Beck
restrictive classification level simply because et al., Prisoners in 2000, Bureau of Justice
no accessible housing exists at the appropri- Statistics Bulletin, Aug. 2001, at 10 (Aug.
ate classification level. The Department’s 2001) (Table 14), available at bjs.ojp.usdoj.
compliance reviews and investigations have gov/index.cfm?ty=pbdetail&iid=927 (last
substantiated certain of these allegations. visited July 16, 2008). This jump consti-
tutes an increase of 81 percent in prison-
ers aged 55 and older during this period.


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