Member Groups

The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

December 2010, vol. 12, no. 2

Final regulations on the Americans with Disabilities Act relating to state and local government services recently were issued by the Department of Justice

On September 15, 2010, the Department of Justice (DOJ) issued regulations relating to Nondiscrimination on the Basis of Disability in State and Local Government Services under Title II of the Americans with Disabilities Act. The new rules become effective on March 15, 2011. The rules are published in 28 C.F.R., Parts 35 and 36. This article reviews briefly some of the provisions in Part 35 of 28 C.F.R. The rules may be found in full at the ADA Home Page at <>.

Title II of the Americans with Disabilities Act governs newly designed or altered State and local government facilities so that those facilities are “readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq.“ 28 C.F.R. Part 35, Supplementary Information. The statute prohibits discrimination on the basis of disability by all activities of State and local governments regardless of whether they receive federal financial assistance. Originally issued in 1991, the rules implementing Title II provided ADA Standards for Accessible Design. The new rules update those guidelines. Although the rules go into effect six months after they are published, nevertheless, the rules do not require compliance with the 2010 Standards until eighteen months from the publication date of September 15, 2010. 28 C.F.R. sec. 35.151. Certain rules relating to transportation issues are separately covered in the federal Department of Transportation regulations in 49 C.F.R., Parts 37 and 39.

In the introductory provisions of the new rules, DOJ has stated that the new rules “should improve the overall sense of well-being of persons with disabilities, who will know that public entities and places of public accommodation [covered in Part 36] are generally accessible, and who will have improved individual experiences.” The regulations note that the intended results include that the new rules will have social benefits from increased interaction, especially for children, for instance, in school facilities. Additionally, the rules will have “non-use benefits,” related to home-based and other social services. For example, if persons are able to access centralized sources of services, fewer resources might be required for home-based care. Third, the rules will provide “option value,” resulting in value to persons with and without disabilities, who will benefit from the option of using accessible facilities at some time in the future. Further, the new rules will give “existence value,” which is the benefit for individuals generally to live in a country which gives protections to people with disabilities.

Among the types of services that the new rules require are auxiliary aids and services, including qualified interpreters, assistive listening systems, and audio recordings. 28 C.F.R. secs. 35.104, 35.160-61. The government facilities must allow for the use of service animals, wheel chairs, and accessible seating, including wheel chair spaces and companion seats. Sec. 35.136-38. ■