The Americans with Disabilities Act (ADA) Proposed Regulations

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The Americans with Disabilities Act (ADA) has often been described as the most sweeping
nondiscrimination legislation since the Civil Rights Act of 1964. As stated in the act, its purpose
is “to provide a clear and comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.” (42 U.S.C. §12101(b)(1)) On June 17, 2008, the Department
of Justice (DOJ) issued notices of proposed rulemaking (NPRM) for ADA title II (prohibiting
discrimination against individuals with disabilities by state and local governments), and ADA title
III (prohibiting discrimination against individuals with disabilities by places of public
accommodations). These proposed regulations are detailed and complex. They would adopt
accessibility standards consistent with the minimum guidelines and requirements issued by the
Architectural and Transportation Barriers Compliance Board. More specifically, the regulations
include more detailed standards for service animals and power-driven mobility devices, and
provide for a “safe harbor” in certain circumstances. Comments on the regulations were due by
August 18, 2008. After consideration of the comments received, the regulations are currently with
the Office of Management and Budget.

On July 23, 2004, the Architectural and Transportation Barriers Compliance Board (Access ¹
Board) published ADA and Architectural Barriers Act Accessibility Guidelines (ADAAG). These
guidelines in part provided detailed guidance on play and recreation areas, lodging at a place of
education, and communications requirements. These guidelines have no legal effect and serve as
guidance only until adopted by the Department of Justice in final regulations. In its June 17,

2008, NPRMs, DOJ proposed the adoption of Parts I and III of the Access Board guidelines and ²

also proposed several other amendments.

The adoption of the Access Board guidelines would serve to increase accessibility; however, the
Department of Justice expressed concern about the potential effect of these changes on existing
structures. To address these concerns, DOJ added “safe harbor” provisions for both titles II and
III. For title II, which applies to states and localities, individuals with disabilities must be
provided access to programs “when viewed in their entirety.”
Unlike title III, a public entity under title II is not required to make each of its existing facilities
accessible. However, in order to provide certainty to public entities and individuals with
disabilities, DOJ’s proposed regulations add a “safe harbor” provision stating that “public entities
that have brought elements into compliance in existing facilities are not, simply because of the
Department’s adoption of the 2004 ADAAG as its new standards, required to modify those ³
elements in order to reflect incremental changes in the proposed standards.”
Title III of the ADA, which covers places of public accommodation, requires each covered
facility to be accessible but only to the extent that accessibility changes are “readily achievable.”
The proposed regulations for title III, like those for title II, also contain a “safe harbor” provision.
This provision would presume that a qualified small business has done what is readily achievable
in a given year “if, in the prior tax year, it spent a fixed percentage of its revenues on readily ⁴
achievable barrier removal.” DOJ stated that it was concerned that “the incremental changes in
the 2004 ADAAG may place unnecessary cost burdens on businesses that have already removed ⁵
barriers by complying with the 1991 Standards in their existing facilities.” DOJ solicited
comments on whether public accommodations that operate existing facilities with play or
recreation areas should be exempted from compliance with certain requirements.

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The proposed regulations for both titles II and III contain virtually identical language relating to
service animals. They define service animal as meaning “any dog or other common domestic
animal individually trained to do work or perform tasks for the benefit of a qualified individual
with a disability.... ” Some examples provided were guiding individuals who are blind, pulling a
wheelchair, assisting an individual during a seizure, and retrieving medicine or the telephone. The
term “service animals” would not include farm animals or wild animals, such as non human
primates (including those born in captivity), reptiles, ferrets, amphibians, and rodents. Assistance
for individuals with psychiatric, cognitive and mental disabilities was specifically included;
however, “[a]nimals whose sole function is to provide emotional support, comfort, therapy,
companionship, therapeutic benefits, or to promote emotional well-being are not service ⁶
animals.”
Generally, a public entity (title II) or a public accommodation (title III) must modify its policies,
practices, or procedures to permit the use of a service animal by an individual with a disability. If
the entity can show that the use of the service animal would fundamentally alter the entity’s
service, program, or activity, the service animal need not be allowed. The proposed regulations
delineate exceptions where a service animal may be removed. These include where the animal is
out of control or not housebroken, and where the animal poses a direct threat to the health or ⁷
safety of others that cannot be eliminated by reasonable accommodation. If the animal is
excluded because of these reasons, the entity must give the individual with a disability the ⁸
opportunity to participate without the animal. The work the service animal performs must be
directly related to the individual’s disability and the animal must be individually trained, ⁹
housebroken, under the control of its handler, and have a harness, leash, or other tether. A public
entity or public accommodation is not responsible for supervising the animal and, although the
entity may not ask about the individual’s disability or require documentation, the entity may ask ¹⁰
what work the animal has been trained to perform. Finally, an individual with a service animal
must be allowed access to areas open to the public, program participants, and invitees, and there
shall be no special fees or surcharges although there may be charges for damages caused by the ¹¹
service animal.
In its discussion of the proposed regulations, the Justice Department observed that it received a
large number of complaints about service animals and that there was a trend toward the use of
wild or exotic animals. The Justice Department also noted a distinction between “comfort
animals”that have the sole function of providing emotional support and which would not be
covered, and “psychiatric service animals” which may be trained to provide a number of services,
such as reminding an individual to take his or her medicine, and which would be covered.
However, DOJ specifically recognized “that there are situations not governed exclusively by the
title II and title III regulations, particularly in the context of residential settings and employment,

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where there may be compelling reasons to permit the use of animals whose presence provides ¹²
emotional support to a person with a disability.”

Since 1990 when the ADA was enacted, the choices of mobility aids for individuals with
disabilities have increased dramatically. Individuals with disabilities have used not only the
traditional wheelchair but also large wheelchairs with rubber tracks, riding lawn mowers, golf
carts, gasoline-powered two-wheeled scooters, and Segways. DOJ indicated that it had received
inquiries concerning whether these devices need to be accommodated, the impact of these devices
on facilities, and personal safety issues.
The proposed regulations under both titles II and III include sections on mobility devices. They
require a public entity under title II or a public accommodation under title III to permit
individuals with mobility impairments to use wheelchairs, scooters, walkers, crutches, canes,
braces, or other similar devices designed for use by individuals with mobility impairments in ¹³
areas open to pedestrian use. A public entity or public accommodation under title III must make
reasonable modifications in its policies and procedures to permit the use of other power-driven
mobility devices by individuals with disabilities unless it can be demonstrated that such use is not ¹⁴
reasonable or would result in a fundamental alteration of the nature of the services or programs.
In addition, a public entity or a public accommodation under title III shall establish policies
permitting the use of other power-driven mobility devices when reasonable. The determination of
reasonableness is to be based on
• the dimensions, weight, and operating speed of the mobility device in relation to
a wheelchair;
• the potential risk of harm to others by the operation of the mobility device;
• the risk of harm to the environment or natural or cultural resources; and
• the ability of the public accommodation to stow the mobility device when not in ¹⁵
use if requested by a user.
• A public entity or public accommodation under title III may ask a person using a
power-driven mobility device if the mobility device is required because of the ¹⁶
person’s disability, but may not ask questions about the person’s disability. DOJ
solicited comments on whether there are certain types of power-driven mobility
devices that should be accommodated; whether motorized devices that use fuel,

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such as all terrain vehicles, should be covered; and whether power-driven
mobility devices should be categorized by intended function, indoor or outdoor ¹⁷
use, or some other factor.

The proposed title II and title III regulations contain a number of other provisions. The title II
proposed regulations include provisions on program accessibility, including play areas, swimming
pools, and dormitories and residence halls at educational facilities, assembly areas, and medical ¹⁸
care facilities. Accessibility requirements for detention and correctional institutions are also ¹⁹
included in the proposed title II regulations as are provisions on ticketing for accessible ²⁰²¹
seating, and communications.
The title III proposed regulations, like the title II proposed regulations, contain provisions on ²²²³
ticketing for accessible seating, provisions relating to play areas and swimming pools, and ²⁴
provisions on communications. Accessibility requirements for place of lodging, including ²⁵
housing at a place of education, are included. A new provision for examinations is added that
specifies that if any request for documentation is required, the requirement is to be “reasonable ²⁶
and limited to the need for the modification or aid requested.” DOJ noted that this change was ²⁷
made to eliminate inappropriate or burdensome requests by testing entities.
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