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These commenters indicated that they agree that other power-driven mobility devices must be assessed, particularly as to their environmental impact, before they are accommodated. The Segway® PT has been the subject of debate among users, pedestrians, disability advocates, State and local governments, businesses, and bicyclists. The fact that the Segway® PT is not designed primarily for use by individuals with disabilities, nor used primarily by persons with disabilities, complicates the question of to what extent individuals with disabilities should be allowed to operate them in areas and facilities where other power-driven mobility devices are not allowed.
The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks. Such deference would have the effect of limiting the rights of persons with disabilities under the ADA who use certain service animals based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others. Others have restrictions that, while well-meaning, have the unintended effect of screening out the very breeds of dogs that have successfully served as service animals for decades without a history of the type of unprovoked aggression or attacks that would pose a direct threat, e.g., German Shepherds. Other jurisdictions prohibit animals over a certain weight, thereby restricting breeds without invoking an express breed ban.
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The following rules of construction apply when determining whether an impairment substantially limits an individual in a major life activity. To the extent that public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA, they are not subject to the requirements of this part. Title II of the ADA covers State and local government programs, services, and activities and, therefore, clearly has some federalism implications. State and local governments have been subject to the ADA since 1991, and the majority have also been required to comply with the requirements of section 504. In its adoption of the 2010 Standards, the Department was mindful of its obligation to meet the objectives of the ADA while also minimizing conflicts between State law and Federal interests.
If the designated agency receives a complaint that is not complete, it shall notify the complainant and specify the additional information that is needed to make the complaint a complete complaint. If the complainant fails to complete the complaint, the designated agency shall close the complaint without prejudice. Complaints alleging employment discrimination subject to this part, but not to title I of the Act shall be processed in accordance with the procedures established by this subpart. If the agency that receives a complaint does not have section 504 jurisdiction, but is the designated agency, it shall process the complaint according to the procedures established by this subpart. If an agency other than the Department of Justice determines that it does not have section 504 jurisdiction and is not the designated agency, it shall promptly refer the complaint to the appropriate designated agency, the agency that has section 504 jurisdiction, or the Department of Justice, and so notify the complainant.
Plain Language Instructions
The commenter offered the example of delays in developmental milestones as a possible referent in evaluating children with speech-language disorders, but noted a lack of guidance regarding comparable referents for adults. The commenter also noted that guidance is needed regarding what average or acceptable duration might be with respect to certain activities. An academic commenter expressed support for the Department’s reference to individuals with learning impairments using certain self-mitigating measures, such as extra time to study or taking an examination in a different format, and the relevance of these measures to condition, manner, and duration. In opposing these provisions, these commenters appear to conflate proof of the existence of an impairment with the analysis of how an impairment substantially limits a major life activity.
Ordinary eyeglasses or contact lenses are lenses that are intended to fully correct visual acuity or to eliminate refractive error. An impairment is a disability within the meaning of this part if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment does not need to prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.
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Section 35.133, which mandates maintenance of accessible features, requires public entities to maintain in operable working condition TDD’s and other devices that provide direct access to the emergency system. For other activities, identification of the "essential eligibility requirements" may be more complex. Where questions of safety are involved, the principles established in §36.208 of the Department’s regulation implementing title III of the ADA, to be codified at 28 CFR Part 36, will be applicable.
Two commenters sought revision of the major life activities attributed to intellectual disabilities, suggesting that it would be more accurate to reference cognitive function and learning, instead of reading, learning, and problem solving. One commenter recommended attributing the major life activity of brain function to autism rather than learning, social interaction, and communicating. The Department determined that it will follow the EEOC’s model and, with respect to both intellectual disabilities and autism, it will reference the major bodily function of brain function. By using the term “brain function” to describe the system affected by various mental impairments, the Department intends to capture functions such as the brain’s ability to regulate thought processes and emotions. The legislative history of the ADA Amendments Act supports the Department’s approach in this area. In crafting the Act, Congress hewed to the ADA definition of "disability", which was modeled on the definition of "disability" in the Rehabilitation Act, and indicated that it wanted courts to interpret the definition as it had originally been construed.
Section 35.160 Communications.
The Department has decided to adopt the requirements in the 2004 ADAAG with respect to judicial facilities and courtrooms and will not ask the Access Board to review these requirements. It addresses a well-documented history of discrimination with respect to judicial administration and significantly increases accessibility for individuals with disabilities. It helps ensure that they will have an opportunity to participate equally in the judicial process. As stated, the final rule is consistent with a number of model and local building codes that have been widely adopted by State and local building departments and provides greater uniformity for planners, architects, and builders. After considering the comments, the Department agrees that this requirement is necessary to ensure that when an individual with a disability presses a call button, an accessible elevator will arrive in a timely manner.
The opinion also concluded that asymptomatic HIV disease is an impairment that substantially limits a major life activity, either because of its actual effect on the individual with HIV disease or because the reactions of other people to individuals with HIV disease cause such individuals to be treated as though they are disabled. See Memorandum from Douglas W. Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, Department of Justice, to Arthur B. Culvahouse, Jr., Counsel to the President (Sept. 27, 1988), reprinted in Hearings on S. "Auxiliary aids and services." Auxiliary aids and services include a wide range of services and devices for ensuring effective communication. The proposed definition in §35.104 provided a list of examples of auxiliary aids and services that was taken from the definition of auxiliary aids and services in section 3 of the ADA and was supplemented by examples from regulations implementing section 504 in federally conducted programs ( See 28 CFR 39.103). By contrast, venue owners and operators and others commented that the action on the sports field is self-explanatory and does not require captioning and they objected to an explicit requirement to provide real-time captioning for all information broadcast on the PA system at a sporting event.
Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability. A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence. Nothing in this paragraph is intended, however, to prohibit or limit the presentation of scientific, medical, or statistical evidence in making such a comparison where appropriate. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.
Chapters 3 through 10 provide uniform technical specifications for facilities subject to either the ADA or ABA. This revised format is designed to eliminate unintended conflicts between the two sets of Federal accessibility standards and to minimize conflicts between the Federal regulations and the model codes that form the basis of many State and local building codes. For the purposes of this final rule, the Department will refer to ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as the 2004 ADAAG.
Paragraph also prohibits policies that unnecessarily impose requirements or burdens on individuals with disabilities that are not placed on others. For example, public entities may not require that a qualified individual with a disability be accompanied by an attendant. A public entity is not, however, required to provide attendant care, or assistance in toileting, eating, or dressing to individuals with disabilities, except in special circumstances, such as where the individual is an inmate of a custodial or correctional institution.
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