Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/eeoc/stateada.asc

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/* The full text of the ADA regulations binding on state and
local governments follows. */
Part 35 - NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE
AND LOCAL GOVERNMENT SERVICES

Subpart A -- General

Sec.
35.101 Purpose.
35.102 Application.
35.103 Relationship to other laws.
35.104 Definitions.
35.105 Self-evaluation.
35.106 Notice.
35.107 Designation of responsible employee and adoption of
grievance procedures.

35.108 - 35.129 [Reserved]
Subpart B -- General Requirements
35.130 General prohibitions against discrimination.
35.131 Illegal use of drugs.
35.132 Smoking.
35.133 Maintenance of accessible features.
35.134 Retaliation or coercion.
35.135 Personal devices and services.
35.136 - 35.139 [Reserved]
Subpart C -- Employment
35.140 Employment discrimination prohibited.
35.141 - 35.148 [Reserved]
Subpart D -- Program Accessibility
35.149 Discrimination prohibited.
35.150 Existing facilities.
35.151 New construction and alterations.
35.152 - 35.159 [Reserved]
Subpart E -- Communications
35.160 General.
35.161 Telecommunication devices for the deaf (TDD's).
35.162 Telephone emergency services.
35.163 Information and signage.
35.164 Duties.
35.165 - 35.169 [Reserved]
Subpart F -- Compliance Procedures
35.170 Complaints.
35.171 Acceptance of complaints.
35.172 Resolution of complaints.
35.173 Voluntary compliance agreements.
35.174 Referral.
35.175 Attorney's fees.
35.176 Alternative means of dispute resolution.
35.177 Effect of unavailability of technical assistance.  35.178
State immunity.
35.179 - 35.189 [Reserved]
Subpart G -- Designated Agencies
35.190 Designated agencies.
35.191 - 35.999 [Reserved]

Appendix A to Part 35 -- Preamble to Regulation on
Nondiscrimination on the Basis of Disability in State and Local
Government Services (Published July 26, 1991)

Authority:  5 U.S.C. 301; 28 U.S.C. 509, 510; Title II, Pub. L.
101-336 (42 U.S.C. 12134).

Subpart A -- General

{35.101 Purpose.

 The purpose of this part is to effectuate subtitle A of
title II of the Americans with Disabilities Act of 1990, which
prohibits discrimination on the basis of disability by public
entities.

{35.102 Application.

 (a) Except as provided in paragraph (b) of this section,
this part applies to all services, programs, and activities
provided or made available by public entities.

 (b) 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.

{35.103 Relationship to other laws.

 (a) Rule of interpretation.  Except as otherwise provided
in this part, this part shall not be construed to apply a lesser
standard than the standards applied under title V of the
Rehabilitation Act of 1973 or the regulations issued by Federal
agencies pursuant to that title.

 (b) Other laws.  This part does not invalidate or limit
the remedies, rights, and procedures of any other Federal laws,
or State or local laws (including State common law) that provide
greater or equal protection for the rights of individuals with
disabilities or individuals associated with them.

{35.104 Definitions.

 For purposes of this part, the term --

 Act means the Americans with Disabilities Act (Pub. L.
101- 336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225
and 611).

 Assistant Attorney General means the Assistant Attorney
General, Civil Rights Division, United States Department of
Justice.

 Auxiliary aids and services includes--

 (1) Qualified interpreters, notetakers, transcription
services, written materials, telephone handset amplifiers,
assistive listening devices, assistive listening systems,
telephones compatible with hearing aids, closed caption decoders,
open and closed captioning, telecommunications devices for deaf
persons (TDD's), videotext displays, or other effective methods
of making aurally delivered materials available to individuals
with hearing impairments;

 (2) Qualified readers, taped texts, audio recordings,
Brailled materials, large print materials, or other effective
methods of making visually delivered materials available to
individuals with visual impairments;

 (3) Acquisition or modification of equipment or devices;
and

 (4) Other similar services and actions.

 Complete complaint means a written statement that
contains the complainant's name and address and describes the
public entity's alleged discriminatory action in sufficient
detail to inform the agency of the nature and date of the alleged
violation of this part.  It shall be signed by the complainant or
by someone authorized to do so on his or her behalf.  Complaints
filed on behalf of classes or third parties shall describe or
identify (by name, if possible) the alleged victims of
discrimination.

 Current illegal use of drugs means illegal use of drugs
that occurred recently enough to justify a reasonable belief that
a person's drug use is current or that continuing use is a real
and ongoing problem.

 Designated agency means the Federal agency designated
under subpart G of this part to oversee compliance activities
under this part for particular components of State and local
governments.

 Disability means, with respect to an individual, a
physical or mental impairment that substantially limits one or
more of the major life activities of such individual; a record of
such an impairment; or being regarded as having such an
impairment.

(1)(i) The phrase physical or mental impairment means --

 (A) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological, musculoskeletal, special
sense organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive, genitourinary, hemic and
lymphatic, skin, and endocrine;

 (B) Any mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental illness,
and specific learning disabilities.

 (ii) The phrase physical or mental impairment includes,
but is not limited to, such contagious and noncontagious diseases
and conditions as orthopedic, visual, speech and hearing
impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental
retardation, emotional illness, specific learning disabilities,
HIV disease (whether symptomatic or asymptomatic), tuberculosis,
drug addiction, and alcoholism.

 (iii) The phrase physical or mental impairment does not
include homosexuality or bisexuality.

 (2) The phrase major life activities means functions such
as caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.

 (3) The phrase has a record of such an impairment means
has a history of, or has been misclassified as having, a mental
or physical impairment that substantially limits one or more
major life activities.

 (4) The phrase is regarded as having an impairment means-

 (i) Has a physical or mental impairment that does not
substantially limit major life activities but that is treated by
a public entity as constituting such a limitation;

 (ii) Has a physical or mental impairment that
substantially limits major life activities only as a result of
the attitudes of others toward such impairment; or

 (iii) Has none of the impairments defined in paragraph
(1) of this definition but is treated by a public entity as
having such an impairment.

 (5) The term disability does not include --

 (i) Transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting
from physical impairments, or other sexual behavior disorders;

(ii) Compulsive gambling, kleptomania, or pyromania; or

 (iii) Psychoactive substance use disorders resulting from
current illegal use of drugs.

 Drug means a controlled substance, as defined in
schedules I through V of section 202 of the Controlled Substances
Act (21 U.S.C. 812).

 Facility means all or any portion of buildings,
structures, sites, complexes, equipment, rolling stock or other
conveyances, roads, walks, passageways, parking lots, or other
real or personal property, including the site where the building,
property, structure, or equipment is located.

 Historic preservation programs means programs conducted
by a public entity that have preservation of historic properties
as a primary purpose.

 Historic properties means those properties that are
listed or eligible for listing in the National Register of
Historic Places or properties designated as historic under State
or local law.

 Illegal use of drugs means the use of one or more drugs,
the possession or distribution of which is unlawful under the
Controlled Substances Act (21 U.S.C. 812).  The term illegal use
of drugs does not include the use of a drug taken under
supervision by a licensed health care professional, or other uses
authorized by the Controlled Substances Act or other provisions
of Federal law.

 Individual with a disability means a person who has a
disability.  The term individual with a disability does not
include an individual who is currently engaging in the illegal
use of drugs, when the public entity acts on the basis of such
use.

 Public entity means --

 (1) Any State or local government;

 (2) Any department, agency, special purpose district, or
other instrumentality of a State or States or local government;
and


 (3) The National Railroad Passenger Corporation, and any
commuter authority (as defined in section 103(8) of the Rail
Passenger Service Act).

 Qualified individual with a disability means an
individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public
entity.

 Qualified interpreter means an interpreter who is able to
interpret effectively, accurately, and impartially both
receptively and expressively, using any necessary specialized
vocabulary.

 Section 504 means section 504 of the Rehabilitation Act
of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as
amended.
 State means each of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa,
the Virgin Islands, the Trust Territory of the Pacific Islands,
and the Commonwealth of the Northern Mariana Islands.

{35.105 Self-evaluation.

 (a) A public entity shall, within one year of the
effective date of this part, evaluate its current services,
policies, and practices, and the effects thereof, that do not or
may not meet the requirements of this part and, to the extent
modification of any such services, policies, and practices is
required, the public entity shall proceed to make the necessary
modifications.

 (b) A public entity shall provide an opportunity to
interested persons, including individuals with disabilities or
organizations representing individuals with disabilities, to
participate in the self-evaluation process by submitting
comments.

 (c) A public entity that employs 50 or more persons shall,
for at least three years following completion of the self-
evaluation, maintain on file and make available for public
inspection:

 (1) A list of the interested persons consulted;

 (2) A description of areas examined and any problems
identified; and

 (3) A description of any modifications made.

 (d) If a public entity has already complied with the self-
evaluation requirement of a regulation implementing section 504
of the Rehabilitation Act of 1973, then the requirements of this
section shall apply only to those policies and practices that
were not included in the previous self-evaluation.

{35.106 Notice.

 A public entity shall make available to applicants,
participants, beneficiaries, and other interested persons
information regarding the provisions of this part and its
applicability to the services, programs, or activities of the
public entity, and make such information available to them in
such manner as the head of the entity finds necessary to apprise
such persons of the protections against discrimination assured
them by the Act and this part.

{35.107 Designation of responsible employee and adoption of
grievance procedures.

 (a) Designation of responsible employee.  A public entity
that employs 50 or more persons shall designate at least one
employee to coordinate its efforts to comply with and carry out
its responsibilities under this part, including any investigation
of any complaint communicated to it alleging its noncompliance
with this part or alleging any actions that would be prohibited
by this part.  The public entity shall make available to all
interested individuals the name, office address, and telephone
number of the employee or employees designated pursuant to this
paragraph.

 (b) Complaint procedure.  A public entity that employs 50
or more persons shall adopt and publish grievance procedures
providing for prompt and equitable resolution of complaints
alleging any action that would be prohibited by this part.

{{35.108 - 35.129 [Reserved]

Subpart B -- General Requirements

{35.130 General prohibitions against discrimination.

 (a) No qualified individual with a disability shall, on
the basis of disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any public
entity.

 (b)(1) A public entity, in providing any aid, benefit, or
service, may not, directly or through contractual, licensing, or
other arrangements, on the basis of disability --

 (i) Deny a qualified individual with a disability the
opportunity to participate in or benefit from the aid, benefit,
or service;

 (ii) Afford a qualified individual with a disability an
opportunity to participate in or benefit from the aid, benefit,
or service that is not equal to that afforded others;

 (iii) Provide a qualified individual with a disability
with an aid, benefit, or service that is not as effective in
affording equal opportunity to obtain the same result, to gain
the same benefit, or to reach the same level of achievement as
that provided to others;

 (iv) Provide different or separate aids, benefits, or
services to individuals with disabilities or to any class of
individuals with disabilities than is provided to others unless
such action is necessary to provide qualified individuals with
disabilities with aids, benefits, or services that are as
effective as those provided to others;

 (v) Aid or perpetuate discrimination against a qualified
individual with a disability by providing significant assistance
to an agency, organization, or person that discriminates on the
basis of disability in providing any aid, benefit, or service to
beneficiaries of the public entity's program;

 (vi) Deny a qualified individual with a disability the
opportunity to participate as a member of planning or advisory
boards;

 (vii) Otherwise limit a qualified individual with a
disability in the enjoyment of any right, privilege, advantage,
or opportunity enjoyed by others receiving the aid, benefit, or
service.

 (2) A public entity may not deny a qualified individual
with a disability the opportunity to participate in services,
programs, or activities that are not separate or different,
despite the existence of permissibly separate or different
programs or activities.

 (3) A public entity may not, directly or through
contractual or other arrangements, utilize criteria or methods of
administration:

 (i) That have the effect of subjecting qualified
individuals with disabilities to discrimination on the basis of
disability;

 (ii) That have the purpose or effect of defeating or
substantially impairing accomplishment of the objectives of the
public entity's program with respect to individuals with
disabilities; or

 (iii) That perpetuate the discrimination of another
public entity if both public entities are subject to common
administrative control or are agencies of the same State.

 (4) A public entity may not, in determining the site or
location of a facility, make selections --

 (i) That have the effect of excluding individuals with
disabilities from, denying them the benefits of, or otherwise
subjecting them to discrimination; or

 (ii) That have the purpose or effect of defeating or
substantially impairing the accomplishment of the objectives of
the service, program, or activity with respect to individuals
with disabilities.

 (5) A public entity, in the selection of procurement
contractors, may not use criteria that subject qualified
individuals with disabilities to discrimination on the basis of
disability.

 (6) A public entity may not administer a licensing or
certification program in a manner that subjects qualified
individuals with disabilities to discrimination on the basis of
disability, nor may a public entity establish requirements for
the programs or activities of licensees or certified entities
that subject qualified individuals with disabilities to
discrimination on the basis of disability.  The programs or
activities of entities that are licensed or certified by a public
entity are not, themselves, covered by this part.

 (7) A public entity shall make reasonable modifications in
policies, practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability,
unless the public entity can demonstrate that making the
modifications would fundamentally alter the nature of the
service, program, or activity.

 (8) A public entity shall not impose or apply eligibility
criteria that screen out or tend to screen out an individual with
a disability or any class of individuals with disabilities from
fully and equally enjoying any service, program, or activity,
unless such criteria can be shown to be necessary for the
provision of the service, program, or activity being offered.

 (c) Nothing in this part prohibits a public entity from
providing benefits, services, or advantages to individuals with
disabilities, or to a particular class of individuals with
disabilities beyond those required by this part.

 (d) A public entity shall administer services, programs,
and activities in the most integrated setting appropriate to the
needs of qualified individuals with disabilities.

 (e)(1) Nothing in this part shall be construed to require
an individual with a disability to accept an accommodation, aid,
service, opportunity, or benefit provided under the ADA or this
part which such individual chooses not to accept.

 (2) Nothing in the Act or this part authorizes the
representative or guardian of an individual with a disability to
decline food, water, medical treatment, or medical services for
that individual.

 (f) A public entity may not place a surcharge on a
particular individual with a disability or any group of
individuals with disabilities to cover the costs of measures,
such as the provision of auxiliary aids or program accessibility,
that are required to provide that individual or group with the
nondiscriminatory treatment required by the Act or this part.

 (g) 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.

{35.131 Illegal use of drugs.

 (a) General.  (1) Except as provided in paragraph (b) of
this section, this part does not prohibit discrimination against
an individual based on that individual's current illegal use of
drugs.


 (2) A public entity shall not discriminate on the basis of
illegal use of drugs against an individual who is not engaging in
current illegal use of drugs and who--

 (i) Has successfully completed a supervised drug
rehabilitation program or has otherwise been rehabilitated
successfully;

 (ii) Is participating in a supervised rehabilitation
program; or

(iii) Is erroneously regarded as engaging in such use.

 (b) Health and drug rehabilitation services.  (1) A public
entity shall not deny health services, or services provided in
connection with drug rehabilitation, to an individual on the
basis of that individual's current illegal use of drugs, if the
individual is otherwise entitled to such services.

 (2) A drug rehabilitation or treatment program may deny
participation to individuals who engage in illegal use of drugs
while they are in the program.

 (c) Drug testing.  (1) This part does not prohibit a
public entity from adopting or administering reasonable policies
or procedures, including but not limited to drug testing,
designed to ensure that an individual who formerly engaged in the
illegal use of drugs is not now engaging in current illegal use
of drugs.

 (2) Nothing in paragraph (c) of this section shall be
construed to encourage, prohibit, restrict, or authorize the
conduct of testing for the illegal use of drugs.

{35.132 Smoking.

 This part does not preclude the prohibition of, or the
imposition of restrictions on, smoking in transportation covered
by this part.

{35.133 Maintenance of accessible features.

 (a) A public accommodation shall maintain in operable
working condition those features of facilities and equipment that
are required to be readily accessible to and usable by persons
with disabilities by the Act or this part.

 (b) This section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or repairs.
{35.134 Retaliation or coercion.

 (a) No private or public entity shall discriminate against
any individual because that individual has opposed any act or
practice made unlawful by this part, or because that individual
made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under the Act or this
part.

 (b) No private or public entity shall coerce, intimidate,
threaten, or interfere with any individual in the exercise or
enjoyment of, or on account of his or her having exercised or
enjoyed, or on account of his or her having aided or encouraged
any other individual in the exercise or enjoyment of, any right
granted or protected by the Act or this part.

{35.135 Personal devices and services.

 This part does not require a public entity to provide to
individuals with disabilities personal devices, such as
wheelchairs; individually prescribed devices, such as
prescription eyeglasses or hearing aids; readers for personal use
or study; or services of a personal nature including assistance
in eating, toileting, or dressing.

{{35.136 - 35.139 [Reserved]

Subpart C -- Employment

{35.140 Employment discrimination prohibited.

 (a) No qualified individual with a disability shall, on
the basis of disability, be subjected to discrimination in
employment under any service, program, or activity conducted by a
public entity.

 (b)(1) For purposes of this part, the requirements of
title I of the Act, as established by the regulations of the
Equal Employment Opportunity Commission in 29 CFR part 1630,
apply to employment in any service, program, or activity
conducted by a public entity if that public entity is also
subject to the jurisdiction of title I.

 (2) For the purposes of this part, the requirements of
section 504 of the Rehabilitation Act of 1973, as established by
the regulations of the Department of Justice in 28 CFR Part 41,
as those requirements pertain to employment, apply to employment
in any service, program, or activity conducted by a public entity
if that public entity is not also subject to the jurisdiction of
title I.

{{35.141 - 35.148 [Reserved]

Subpart D -- Program Accessibility

{35.149 Discrimination prohibited.

 Except as otherwise provided in {35.150, no qualified
individual with a disability shall, because a public entity's
facilities are inaccessible to or unusable by individuals with
disabilities, be excluded from participation in, or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any public entity.

{35.150 Existing facilities.

 (a) General.  A public entity shall operate each service,
program, or activity so that the service, program, or activity,
when viewed in its entirety, is readily accessible to and usable
by individuals with disabilities.  This paragraph does not --

 (1) Necessarily require a public entity to make each of
its existing facilities accessible to and usable by individuals
with disabilities;

 (2) Require a public entity to take any action that would
threaten or destroy the historic significance of an historic
property; or

 (3) Require a public entity to take any action that it can
demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity or in undue financial
and administrative burdens.  In those circumstances where
personnel of the public entity believe that the proposed action
would fundamentally alter the service, program, or activity or
would result in undue financial and administrative burdens, a
public entity has the burden of proving that compliance with
{35.150(a) of this part would result in such alteration or
burdens.  The decision that compliance would result in such
alteration or burdens must be made by the head of a public entity
or his or her designee after considering all resources available
for use in the funding and operation of the service, program, or
activity, and must be accompanied by a written statement of the
reasons for reaching that conclusion.  If an action would result
in such an alteration or such burdens, a public entity shall take
any other action that would not result in such an alteration or
such burdens but would nevertheless ensure that individuals with
disabilities receive the benefits or services provided by the
public entity.

 (b) Methods.  (1) General.  A public entity may comply
with the requirements of this section through such means as
redesign of equipment, reassignment of services to accessible
buildings, assignment of aides to beneficiaries, home visits,
delivery of services at alternate accessible sites, alteration of
existing facilities and construction of new facilities, use of
accessible rolling stock or other conveyances, or any other
methods that result in making its services, programs, or
activities readily accessible to and usable by individuals with
disabilities.  A public entity is not required to make structural
changes in existing facilities where other methods are effective
in achieving compliance with this section.  A public entity, in
making alterations to existing buildings, shall meet the
accessibility requirements of {35.151.  In choosing among
available methods for meeting the requirements of this section, a
public entity shall give priority to those methods that offer
services, programs, and activities to qualified individuals with
disabilities in the most integrated setting appropriate.

 (2) Historic preservation programs.  In meeting the
requirements of {35.150(a) in historic preservation programs, a
public entity shall give priority to methods that provide
physical access to individuals with disabilities.  In cases where
a physical alteration to an historic property is not required
because of paragraph (a)(2) or (a)(3) of this section,
alternative methods of achieving program accessibility include --
 (i) Using audio-visual materials and devices to depict
those portions of an historic property that cannot otherwise be
made accessible;

 (ii) Assigning persons to guide individuals with
handicaps into or through portions of historic properties that
cannot otherwise be made accessible; or

 (iii) Adopting other innovative methods.

 (c) Time period for compliance.  Where structural changes
in facilities are undertaken to comply with the obligations
established under this section, such changes shall be made within
three years of the effective date of this part, but in any event
as expeditiously as possible.

 (d) Transition plan.  (1) In the event that structural
changes to facilities will be undertaken to achieve program
accessibility, a public entity that employs 50 or more persons
shall develop, within six months of the effective date of this
part, a transition plan setting forth the steps necessary to
complete such changes.  A public entity shall provide an
opportunity to interested persons, including individuals with
disabilities or organizations representing individuals with
disabilities, to participate in the development of the transition
plan by submitting comments.  A copy of the transition plan shall
be made available for public inspection.

 (2) If a public entity has responsibility or authority
over streets, roads, or walkways, its transition plan shall
include a schedule for providing curb ramps or other sloped areas
where pedestrian walks cross curbs, giving priority to walkways
serving entities covered by the Act, including State and local
government offices and facilities, transportation, places of
public accommodation, and employers, followed by walkways serving
other areas.

 (3) The plan shall, at a minimum --

 (i) Identify physical obstacles in the public entity's
facilities that limit the accessibility of its programs or
activities to individuals with disabilities;

 (ii) Describe in detail the methods that will be used to
make the facilities accessible;

 (iii) Specify the schedule for taking the steps necessary
to achieve compliance with this section and, if the time period
of the transition plan is longer than one year, identify steps
that will be taken during each year of the transition period; and
 (iv) Indicate the official responsible for implementation
of the plan.

 (4) If a public entity has already complied with the
transition plan requirement of a Federal agency regulation
implementing section 504 of the Rehabilitation Act of 1973, then
the requirements of this paragraph shall apply only to those
policies and practices that were not included in the previous
transition plan.

{35.151 New construction and alterations.

 (a) Design and construction.  Each facility or part of a
facility constructed by, on behalf of, or for the use of a public
entity shall be designed and constructed in such manner that the
facility or part of the facility is readily accessible to and
usable by individuals with disabilities, if the construction was
commenced after January 26, 1992.

 (b) Alteration.  Each facility or part of a facility
altered by, on behalf of, or for the use of a public entity in a
manner that affects or could affect the usability of the facility
or part of the facility shall, to the maximum extent feasible, be
altered in such manner that the altered portion of the facility
is readily accessible to and usable by individuals with
disabilities, if the alteration was commenced after January 26,
1992.

 (c) Accessibility standards.  Design, construction, or
alteration of facilities in conformance with the Uniform Federal
Accessibility Standards (UFAS) (Appendix A to 41 CFR Part
101-19.6) or with the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (ADAAG)
(Appendix A to the Department of Justice's final rule
implementing title III of the ADA, _____ F.R. _____) shall be
deemed to comply with the requirements of this section with
respect to those facilities, except that the elevator exemption
contained at {4.1.3(5) and {4.1.6(1)(j) of ADAAG shall not apply.
Departures from particular requirements of either standard by the
use of other methods shall be permitted when it is clearly
evident that equivalent access to the facility or part of the
facility is thereby provided.

 (d) Alterations:  Historic properties.  (1) Alterations to
historic properties shall comply, to the maximum extent feasible,
with {4.1.7 of UFAS or {4.1.7 of ADAAG.

 (2) If it is not feasible to provide physical access to an
historic property in a manner that will not threaten or destroy
the historic significance of the building or facility,
alternative methods of access shall be provided pursuant to the
requirements of {35.150.

 (e) Curb ramps.  (1) Newly constructed or altered streets,
roads, and highways must contain curb ramps or other sloped areas
at any intersection having curbs or other barriers to entry from
a street level pedestrian walkway.

 (2) Newly constructed or altered street level pedestrian
walkways must contain curb ramps or other sloped areas at
intersections to streets, roads, or highways.

{{35.152 - 35.159 [Reserved]

Subpart E -- Communications

{35.160 General.

 (a) A public entity shall take appropriate steps to ensure
that communications with applicants, participants, and members of
the public with disabilities are as effective as communications
with others.

 (b)(1) A public entity shall furnish appropriate
auxiliary aids and services where necessary to afford an
individual with a disability an equal opportunity to participate
in, and enjoy the benefits of, a service, program, or activity
conducted by a public entity.

 (2) In determining what type of auxiliary aid and service
is necessary, a public entity shall give primary consideration to
the requests of the individual with disabilities.

{35.161 Telecommunication devices for the deaf (TDD's).

 Where a public entity communicates by telephone with
applicants and beneficiaries, TDD's or equally effective
telecommunication systems shall be used to communicate with
individuals with impaired hearing or speech.

{35.162 Telephone emergency services.

 Telephone emergency services, including 911 services,
shall provide direct access to individuals who use TDD's and
computer modems.

{35.163 Information and signage.

 (a) A public entity shall ensure that interested persons,
including persons with impaired vision or hearing, can obtain
information as to the existence and location of accessible
services, activities, and facilities.

 (b) A public entity shall provide signage at all
inaccessible entrances to each of its facilities, directing users
to an accessible entrance or to a location at which they can
obtain information about accessible facilities.  The
international symbol for accessibility shall be used at each
accessible entrance of a facility.

{35.164 Duties.

 This subpart does not require a public entity to take any
action that it can demonstrate would result in a fundamental
alteration in the nature of a service, program, or activity or in
undue financial and administrative burdens.  In those
circumstances where personnel of the public entity believe that
the proposed action would fundamentally alter the service,
program, or activity or would result in undue financial and
administrative burdens, a public entity has the burden of proving
that compliance with this subpart would result in such alteration
or burdens.  The decision that compliance would result in such
alteration or burdens must be made by the head of the public
entity or his or her designee after considering all resources
available for use in the funding and operation of the service,
program, or activity and must be accompanied by a written
statement of the reasons for reaching that conclusion.  If an
action required to comply with this subpart would result in such
an alteration or such burdens, a public entity shall take any
other action that would not result in such an alteration or such
burdens but would nevertheless ensure that, to the maximum extent
possible, individuals with disabilities receive the benefits or
services provided by the public entity.

{{35.165 - 35.169 [Reserved]

Subpart F - Compliance Procedures

{35.170 Complaints.

 (a) Who may file.  An individual who believes that he or
she or a specific class of individuals has been subjected to
discrimination on the basis of disability by a public entity may,
by himself or herself or by an authorized representative, file a
complaint under this part.

 (b) Time for filing.  A complaint must be filed not later
than 180 days from the date of the alleged discrimination, unless
the time for filing is extended by the designated agency for good
cause shown.  A complaint is deemed to be filed under this
section on the date it is first filed with any Federal agency.

 (c) Where to file.  An individual may file a complaint
with any agency that he or she believes to be the appropriate
agency designated under subpart G of this part, or with any
agency that provides funding to the public entity that is the
subject of the complaint, or with the Department of Justice for
referral as provided in {35.171(a)(2).

{35.171 Acceptance of complaints.

 (a) Receipt of complaints.  (1)(i) Any Federal agency that
receives a complaint of discrimination on the basis of disability
by a public entity shall promptly review the complaint to
determine whether it has jurisdiction over the complaint under
section 504.

 (ii) If the agency does not have section 504
jurisdiction, it shall promptly determine whether it is the
designated agency under subpart G of this part responsible for
complaints filed against that public entity.

 (2)(i) 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,
and notify the complainant that it is referring the complaint to
the Department of Justice.

 (ii) When the Department of Justice receives a complaint
for which it does not have jurisdiction under section 504 and is
not the designated agency, it shall refer the complaint to an
agency that does have jurisdiction under section 504 or to the
appropriate agency designated in subpart G of this part or, in
the case of an employment complaint that is also subject to title
I of the Act, to the Equal Employment Opportunity Commission.

 (3)(i) If the agency that receives a complaint has
section 504 jurisdiction, it shall process the complaint
according to its procedures for enforcing section 504.

 (ii) 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.

 (b) Employment complaints.  (1) If a complaint alleges
employment discrimination subject to title I of the Act, and the
agency has section 504 jurisdiction, the agency shall follow the
procedures issued by the Department of Justice and the Equal
Employment Opportunity Commission under section 107(b) of the
Act.

 (2) If a complaint alleges employment discrimination
subject to title I of the Act, and the designated agency does not
have section 504 jurisdiction, the agency shall refer the
complaint to the Equal Employment Opportunity Commission for
processing under title I of the Act.

 (3) 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.

 (c) Complete complaints.  (1) A designated agency shall
accept all complete complaints under this section and shall
promptly notify the complainant and the public entity of the
receipt and acceptance of the complaint.

 (2) 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.

{35.172 Resolution of complaints.

 (a) The designated agency shall investigate each complete
complaint, attempt informal resolution, and, if resolution is not
achieved, issue to the complainant and the public entity a Letter
of Findings that shall include --

 (1) Findings of fact and conclusions of law;

 (2) A description of a remedy for each violation found;
and

 (3) Notice of the rights available under paragraph (b) of
this section.

 (b) If the designated agency finds noncompliance, the
procedures in {{35.173 and 35.174 shall be followed.  At any
time, the complainant may file a private suit pursuant to section
203 of the Act, whether or not the designated agency finds a
violation.

{35.173 Voluntary compliance agreements.

 (a) When the designated agency issues a noncompliance
Letter of Findings, the designated agency shall--

 (1) Notify the Assistant Attorney General by forwarding a
copy of the Letter of Findings to the Assistant Attorney General;
and

 (2) Initiate negotiations with the public entity to secure
compliance by voluntary means.

 (b) Where the designated agency is able to secure
voluntary compliance, the voluntary compliance agreement shall --

 (1) Be in writing and signed by the parties;

 (2) Address each cited violation;

 (3) Specify the corrective or remedial action to be taken,
within a stated period of time, to come into compliance;

 (4) Provide assurance that discrimination will not recur;
and

 (5) Provide for enforcement by the Attorney General.

{35.174 Referral.

 If the public entity declines to enter into voluntary
compliance negotiations or if negotiations are unsuccessful, the
designated agency shall refer the matter to the Attorney General
with a recommendation for appropriate action.

{35.175 Attorney's fees.

 In any action or administrative proceeding commenced
pursuant to the Act or this part, the court or agency, in its
discretion, may allow the prevailing party, other than the United
States, a reasonable attorney's fee, including litigation
expenses, and costs, and the United States shall be liable for
the foregoing the same as a private individual.

{35.176 Alternative means of dispute resolution.

 Where appropriate and to the extent authorized by law,
the use of alternative means of dispute resolution, including
settlement negotiations, conciliation, facilitation, mediation,
factfinding, minitrials, and arbitration, is encouraged to
resolve disputes arising under the Act and this part.

{35.177 Effect of unavailability of technical assistance.

 A public entity shall not be excused from compliance with
the requirements of this part because of any failure to receive
technical assistance, including any failure in the development or
dissemination of any technical assistance manual authorized by
the Act.

{35.178 State immunity.

 A State shall not be immune under the eleventh amendment
to the Constitution of the United States from an action in
Federal or State court of competent jurisdiction for a violation
of this Act.  In any action against a State for a violation of
the requirements of this Act, remedies (including remedies both
at law and in equity) are available for such a violation to the
same extent as such remedies are available for such a violation
in an action against any public or private entity other than a
State.

{{35.179 - 35.189 [Reserved]

Subpart G -- Designated Agencies

{35.190 Designated agencies.

 (a) The Assistant Attorney General shall coordinate the
compliance activities of Federal agencies with respect to State
and local government components, and shall provide policy
guidance and interpretations to designated agencies to ensure the
consistent and effective implementation of the requirements of
this part.

 (b) The Federal agencies listed in paragraph (b)(1)-(8) of
this section shall have responsibility for the implementation of
subpart F of this part for components of State and local
governments that exercise responsibilities, regulate, or
administer services, programs, or activities in the following
functional areas.

 (1) Department of Agriculture:  all programs, services,
and regulatory activities relating to farming and the raising of
livestock, including extension services.

 (2) Department of Education:  all programs, services, and
regulatory activities relating to the operation of elementary and
secondary education systems and institutions, institutions of
higher education and vocational education (other than schools of
medicine, dentistry, nursing, and other health-related schools),
and libraries.

 (3) Department of Health and Human Services:  all
programs, services, and regulatory activities relating to the
provision of health care and social services, including schools
of medicine, dentistry, nursing, and other health-related
schools, the operation of health care and social service
providers and institutions, including "grass-roots" and community
services organizations and programs, and preschool and daycare
programs.

 (4) Department of Housing and Urban Development:  all
programs, services, and regulatory activities relating to state
and local public housing, and housing assistance and referral.

 (5) Department of Interior:  all programs, services, and
regulatory activities relating to lands and natural resources,
including parks and recreation, water and waste management,
environmental protection, energy, historic and cultural
preservation, and museums.

 (6) Department of Justice:  all programs, services, and
regulatory activities relating to law enforcement, public safety,
and the administration of justice, including courts and
correctional institutions; commerce and industry, including
general economic development, banking and finance, consumer
protection, insurance, and small business; planning, development,
and regulation (unless assigned to other designated agencies);
state and local government support services (e.g., audit,
personnel, comptroller, administrative services); all other
government functions not assigned to other designated agencies.

 (7) Department of Labor:  all programs, services, and
regulatory activities relating to labor and the work force.

 (8) Department of Transportation:  all programs, services,
and regulatory activities relating to transportation, including
highways, public transportation, traffic management (non-law
enforcement), automobile licensing and inspection, and driver
licensing.

 (c) Responsibility for the implementation of subpart F of
this part for components of State or local governments that
exercise responsibilities, regulate, or administer services,
programs, or activities relating to functions not assigned to
specific designated agencies by paragraph (b) of this section may
be assigned to other specific agencies by the Department of
Justice.

 (d) If two or more agencies have apparent responsibility
over a complaint, the Assistant Attorney General shall determine
which one of the agencies shall be the designated agency for
purposes of that complaint.

{{35.191 - 35.999 [Reserved]

Appendix A to Part 35 -- Preamble to Regulation on
Nondiscrimination on the Basis of Disability in State and Local
Government Services (Published July 26, 1991)

NOTE:  For the convenience of the reader, this appendix contains
the text of the preamble to the final regulation on
nondiscrimination on the basis of disability in State and local
government services beginning at the heading "Section-by-Section
Analysis" and ending before "List of Subjects in 28 CFR Part 35"
(56 FR [INSERT FR PAGE CITATIONS]; July 26, 1991).


______________ ___________________
Date Dick Thornburgh Attorney General