28 Cfr Part 36 Pdf

28 cfr part 36 pdf

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Use the PDF linked in the document sidebar for the official electronic format. Congress intended that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their statutory obligations not to discriminate based on disability.

Department of Justice, at voice or TTY ; this is not a toll-free number. Code, the final rule references the revised U. Code provisions except in those cases where the reference is to the Findings and Purposes of the ADA Amendments Act, in which case the citation is to section 2 of Public Law , September 25, This rule is necessary in order to incorporate the ADA Amendments Act's changes to titles II nondiscrimination in State and local government services and III nondiscrimination by public accommodations and commercial facilities of the ADA into the Department's ADA regulations and to provide additional guidance on how to apply those changes.

Bush on September 25, , with a statutory effective date of January 1, Public Law , sec. See Public Law , sec. These regulatory revisions are based on specific provisions in the ADA Amendments Act or on specific language in the legislative history. The revisions also add rules of construction to be applied when determining whether an impairment substantially limits a major life activity.

These rules of construction state the following:. Accordingly, consistent with Executive Order 's instruction to agencies to coordinate rules across agencies and harmonize regulatory requirements, the Department has adopted, where appropriate, regulatory language that is identical to the revisions to the Equal Employment Opportunity Commission's EEOC title I regulations implementing the ADA Amendments Act.

See 76 FR Mar. The final rule retains nearly all of the proposed regulatory text, although some sections were reorganized and renumbered. The section-by-section analysis in appendix C to part 35 and appendix E to part 36 responds to comments and provides additional interpretive guidance on particular provisions. The revisions to the regulatory text, which include substantive changes in response to comments, include the following:.

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As a result, the Department believes that the enactment of the law benefits millions of Americans, and that the benefits to many of these individuals are non-quantifiable, but nonetheless significant. Thus, the effects that are estimated in this analysis are due to statutory mandates that are not under the Department's discretion. Although the Department's analysis focused only on these specific costs, the Department recognized that the ADA Amendments Act extends coverage to people with the full range of disabilities, and the accommodation of those individuals might entail some economic costs.

After review of the comments, and based on the Department's own research, the Department has determined, however, that the above-referenced exam costs represent the only category of measurable compliance costs that the ADA Amendments Act will impose and the Department was able to assess.

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While other ADA Amendments Act compliance costs might also ensue, the Department has not been able to specifically identify and measure these potential costs. The Department believes, however, that any other potential costs directly resulting from the ADA Amendments Act will likely be minimal and have little impact on the overall results of this analysis.

Enactment of the ADA and Issuance of the 1991 Regulations

The data used to support the estimates in this Final Regulatory Assessment Final RA focus on 1 the increase in the number of postsecondary students or national examination test takers requesting and receiving accommodations—specifically, requests for extra time on exams—as a result of the changes made to the ADA by the ADA Amendments Act; and 2 the actual cost of these additional accommodations, which involves costs of providing staff with the training on the changes made to the ADA by the ADA Amendments Act, administrative costs to process the additional accommodation requests made as a direct result of the ADA Amendments Act, and the costs of additional proctor time needed for these additional accommodation requests.

For both postsecondary institutions and national testing entities, costs are broken down into three components:. The first year of costs will be higher than all subsequent years because the first year includes the one-time costs of Start Printed Page training.

28 cfr part 36 pdf

The breakdown of total costs by entity is provided in the table below. S daily ed. Congress did not intend, however, for the threshold question of disability to be used as a means of excluding individuals from coverage. See H. Section of the Rehabilitation Act of , in part, because after 17 years of development through case law the requirements of the definition were well understood.

Within this framework, with its generous and inclusive definition of disability, courts treated the determination of disability as a threshold issue but focused primarily on whether unlawful discrimination had occurred. That expectation was not fulfilled.

Section-By-Section Analysis and Response to Public Comments

The holdings of several Supreme Court cases sharply narrowed the broad scope of protection Congress originally intended under the ADA, thus eliminating protection for many individuals whom Congress intended to protect.

For example, in Sutton v. United Air Lines, Inc. Williams, U. As a result of these Supreme Court decisions, lower courts ruled in numerous cases that individuals with a range of substantially limiting impairments were not individuals with Start Printed Page disabilities, and thus not protected by the ADA.

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See Cong. As a result, in too many cases, courts would never reach the question whether discrimination had occurred. Congress concluded that these rulings imposed a greater degree of limitation and expressed a higher standard than it had originally intended, and unduly precluded many individuals from being covered under the ADA. This legislation is the product of extensive bipartisan efforts, and the culmination of collaboration and coordination between legislators and stakeholders, including representatives of the disability, business, and education communities.

H daily ed. Steny Hoyer and Jim Sensenbrenner ; see also Cong. These new ADA Amendments Act-specific findings and purposes are meant to restore a broad scope of protection under the ADA by providing clear and enforceable standards that support the mandate to eliminate discrimination against people with disabilities.

Arline, U. See Public Law sec. This conclusion had the effect of interfering with previous judicial precedents holding that, like other civil rights statutes, the ADA must be construed broadly to effectuate its remedial purpose.

28 cfr part 36 pdf

Deleting these findings removes this barrier to construing and applying the definition of disability more generously. The statute provides a non-exhaustive list of major life activities and specifically expands the category of major life activities to include the operation of major bodily functions.

Fifth, the ADA as amended prohibits consideration of the ameliorative effects of mitigating measures such as medication, assistive technology, or reasonable modifications when determining whether an impairment constitutes a disability. Congress added this provision to address the Supreme Court's holdings that the ameliorative effects of mitigating measures must be considered in determining whether an impairment substantially limits a major life activity.

The ADA as amended also provides that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active.

28 cfr part 36 pdf

With this clarifying language, an individual can once again establish coverage under the law by showing that he or she has been subjected to an action prohibited under the Act because Start Printed Page of an actual or perceived physical or mental impairment. The ADA Amendments Act also clarifies that entities covered by the ADA are not required to provide reasonable modifications to policies, practices, or procedures for individuals who fall solely under the regarded as prong.

The comment period closed on March 31, The Department received a total of 53 comments on the NPRM from organizations representing persons with disabilities, organizations representing educational institutions and testing entities, individual academics, and other private individuals.

The Section-by-Section analysis in the appendix to this rule addresses the comments related to specific regulatory language proposed in the NPRM.

Many commenters on the NPRM noted the value of the regulation to people with disabilities while a number of commenters on the Department's NPRM expressed concern that the Department's regulatory assessment unduly focused on individuals with learning disabilities who sought accommodations in testing or educational situations.

The Department's regulatory assessment is not a statement about the coverage of the ADA. Rather, it is a discussion of identifiable incremental costs that may arise as a result of compliance with the ADA Amendments Act and these implementing regulations.

28 cfr part 36 pdf

As explained in the regulatory assessment and under Section VII. A below, the Department believes that those costs are limited primarily to the context of providing reasonable modifications in higher education and testing accommodations by testing entities.

28 cfr part 36 pdf

Differences in language between the title I rules and the Department's title II and title III rules are noted in the Section-by-Section analysis and are generally attributable to structural differences between the title I rule and the title II and III rules or to the fact that certain sections of the EEOC rule deal with employment-specific issues. Executive Order directs agencies, to the extent permitted by law, to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and, in choosing among alternative regulatory approaches, select those approaches that maximize net benefits.

Executive Order recognizes that some benefits and costs are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. This rule is necessary in order to incorporate into the Department's ADA regulations implementing titles II nondiscrimination in State and local government services and III nondiscrimination by public accommodations and commercial facilities the ADA Amendments Act's changes to the ADA and to provide additional guidance on how to apply those changes.

See Sutton v. The legislative history of the ADA Amendments Act is replete with examples of how individuals with a range of disabilities were unable to successfully challenge alleged discriminatory actions by employers because courts found that they did not qualify as individuals with disabilities under the Supreme Court's narrow standards.

See, e. Congress was concerned about the number of individuals with learning disabilities who were denied reasonable modifications or testing accommodations e.

28 cfr part 36 pdf

In the NPRM, the Department requested public comments on whether the changes made by the ADA Amendments Act to titles II and III and that are addressed in the proposed rule would have benefits or costs in areas other than additional time for postsecondary students and national examination test takers with ADHD or learning disabilities. Those comments and the Department's response are discussed below. The Department wishes to stress that, although its economic analysis is focused on estimating costs for processing requests and providing extra time on exams as a direct result of the ADA Amendments Act, the ADA, as amended, extends coverage to individuals with the full range of disabilities and affords such individuals the full range of nondiscrimination protections under the ADA.

The Department believes, however, that any other potential costs directly resulting from restoration of coverage to individuals with disabilities who assert their rights under other ADA nondiscrimination provisions will likely be minimal and have little impact on the overall results of this analysis.

This section discusses public comments to the Initial RA that accompanied the NPRM, as well as changes made to the estimation of likely costs of this rule in response to those comments.

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While more than 50 comments were received during the NPRM comment period, only a few of those directly addressed the assumptions, data, or methodology used in the Initial RA. The Department received comments from persons with disabilities, organizations representing educational institutions and testing entities, individual academics, and other private individuals. The preamble to this final rule provides the primary forum for substantive responses to these comments.

Many commenters expressed appreciation for the proposed regulation, with several noting that the regulation would offer qualitative and quantitative benefits.