Nondiscrimination on the Basis of Disability in State and Local Government Services, 56164-56236 [2010-21821]

Agencies

• Department of Justice

[Federal Register Volume 75, Number 178 (Wednesday, September 15, 2010)]
[Rules and Regulations]
[Pages 56164-56236]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-21821]



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Part II





Department of Justice





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28 CFR Parts 35 and 36



Nondiscrimination on the Basis of Disability in State and Local 
Government Services; Final Rules

Federal Register / Vol. 75 , No. 178 / Wednesday, September 15, 2010 
/ Rules and Regulations

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DEPARTMENT OF JUSTICE

28 CFR Parts 35

[CRT Docket No. 105; AG Order No. 3180-2010]
RIN 1190-AA46


Nondiscrimination on the Basis of Disability in State and Local 
Government Services

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Final rule.

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SUMMARY: This final rule revises the regulation of the Department of 
Justice (Department) that implements title II of the Americans with 
Disabilities Act (ADA), relating to nondiscrimination on the basis of 
disability in State and local government services. The Department is 
issuing this final rule in order to adopt enforceable accessibility 
standards under the ADA that are consistent with the minimum guidelines 
and requirements issued by the Architectural and Transportation 
Barriers Compliance Board (Access Board), and to update or amend 
certain provisions of the title II regulation so that they comport with 
the Department's legal and practical experiences in enforcing the ADA 
since 1991. Concurrently with the publication of this final rule for 
title II, the Department is publishing a final rule amending its ADA 
title III regulation, which covers nondiscrimination on the basis of 
disability by public accommodations and in commercial facilities.

DATES: Effective Date: March 15, 2011.

FOR FURTHER INFORMATION CONTACT: Janet L. Blizard, Deputy Chief, or 
Barbara J. Elkin, Attorney Advisor, Disability Rights Section, Civil 
Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice 
or TTY). This is not a toll-free number. Information may also be 
obtained from the Department's toll-free ADA Information Line at (800) 
514-0301 (voice) or (800) 514-0383 (TTY).
    This rule is also available in an accessible format on the ADA Home 
Page at https://www.ada.gov. You may obtain copies of this rule in large 
print or on computer disk by calling the ADA Information Line listed 
above.

SUPPLEMENTARY INFORMATION:

The Roles of the Access Board and the Department of Justice

    The Access Board was established by section 502 of the 
Rehabilitation Act of 1973. 29 U.S.C. 792. The Board consists of 13 
members appointed by the President from among the general public, the 
majority of whom must be individuals with disabilities, and the heads 
of 12 Federal departments and agencies specified by statute, including 
the heads of the Department of Justice and the Department of 
Transportation (DOT). Originally, the Access Board was established to 
develop and maintain accessibility guidelines for facilities designed, 
constructed, altered, or leased with Federal dollars under the 
Architectural Barriers Act of 1968 (ABA). 42 U.S.C. 4151 et seq. The 
passage of the ADA expanded the Access Board's responsibilities.
    The ADA requires the Access Board to ``issue minimum guidelines 
that shall supplement the existing Minimum Guidelines and Requirements 
for Accessible Design for purposes of subchapters II and III of this 
chapter * * * to ensure that buildings, facilities, rail passenger 
cars, and vehicles are accessible, in terms of architecture and design, 
transportation, and communication, to individuals with disabilities.'' 
42 U.S.C. 12204. The ADA requires the Department to issue regulations 
that include enforceable accessibility standards applicable to 
facilities subject to title II or title III that are consistent with 
the ``minimum guidelines'' issued by the Access Board, 42 U.S.C. 
12134(c); 42 U.S.C. 12186(c), but vests in the Attorney General sole 
responsibility for the promulgation of those standards that fall within 
the Department's jurisdiction and for enforcement of the regulations.
    The ADA also requires the Department to develop regulations with 
respect to existing facilities subject to title II (subtitle A) and 
title III. How and to what extent the Access Board's guidelines are 
used with respect to the barrier removal requirement applicable to 
existing facilities under title III of the ADA and to the provision of 
program accessibility under title II of the ADA are solely within the 
discretion of the Department.

Enactment of the ADA and Issuance of the 1991 Regulations

    On July 26, 1990, President George H.W. Bush signed into law the 
ADA, a comprehensive civil rights law prohibiting discrimination on the 
basis of disability.\1\ The ADA broadly protects the rights of 
individuals with disabilities in employment, access to State and local 
government services, places of public accommodation, transportation, 
and other important areas of American life. The ADA also requires newly 
designed and constructed or altered State and local government 
facilities, public accommodations, and commercial facilities to be 
readily accessible to and usable by individuals with disabilities. 42 
U.S.C. 12101 et seq. Section 204(a) of the ADA directs the Attorney 
General to issue regulations implementing part A of title II but 
exempts matters within the scope of the authority of the Secretary of 
Transportation under section 223, 229, or 244. See 42 U.S.C. 12134. 
Section 229(a) and section 244 of the ADA direct the Secretary of 
Transportation to issue regulations implementing part B of title II, 
except for section 223. See 42 U.S.C 12149; 42 U.S.C. 12164. Title II, 
which this rule addresses, applies to State and local government 
entities, and, in subtitle A, protects qualified individuals with 
disabilities from discrimination on the basis of disability in 
services, programs, and activities provided by State and local 
government entities. Title II extends the prohibition on discrimination 
established by section 504 of the Rehabilitation Act of 1973, as 
amended, 29 U.S.C. 794, to all activities of State and local 
governments regardless of whether these entities receive Federal 
financial assistance. 42 U.S.C. 12131B65.
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    \1\ On September 25, 2008, President George W. Bush signed into 
law the Americans with Disabilities Amendments Act of 2008 (ADA 
Amendments Act), Public Law 110-325. The ADA Amendments Act amended 
the ADA definition of disability to clarify its coverage of persons 
with disabilities and to provide guidance on the application of the 
definition. This final rule does not contain regulatory language 
implementing the ADA Amendments Act. The Department intends to 
publish a supplemental rule to amend the regulatory definition of 
``disability'' to implement the changes mandated by that law.
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    Title III prohibits discrimination on the basis of disability in 
the activities of places of public accommodation (businesses that are 
generally open to the public and that fall into one of twelve 
categories listed in the ADA, such as restaurants, movie theaters, 
schools, day care facilities, recreational facilities, and doctors' 
offices) and requires newly constructed or altered places of public 
accommodation--as well as commercial facilities (privately owned, 
nonresidential facilities like factories, warehouses, or office 
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181B89.
    On July 26, 1991, the Department issued rules implementing title II 
and title III, which are codified at 28 CFR part 35 (title II) and part 
36 (title III). Appendix A of the 1991 title III regulation, which is 
republished as Appendix D to 28 CFR part 36, contains the ADA Standards 
for Accessible Design (1991 Standards), which were based upon the 
version of the

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Americans with Disabilities Act Accessibility Guidelines (1991 ADAAG) 
published by the Access Board on the same date. Under the Department's 
1991 title III regulation, places of public accommodation and 
commercial facilities currently are required to comply with the 1991 
Standards with respect to newly constructed or altered facilities. The 
Department's 1991 title II regulation gives public entities the option 
of complying with the Uniform Federal Accessibility Standards (UFAS) or 
the 1991 Standards with respect to newly constructed or altered 
facilities.
    The Access Board's publication of the 2004 ADA/ABA Guidelines was 
the culmination of a long-term effort to facilitate ADA compliance by 
eliminating, to the extent possible, inconsistencies among Federal 
accessibility requirements and between Federal accessibility 
requirements and State and local building codes. In support of this 
effort, the Department is amending its regulation implementing title II 
and is adopting standards consistent with ADA Chapter 1, ADA Chapter 2, 
and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines, naming them 
the 2010 ADA Standards for Accessible Design. The Department is also 
amending its title III regulation, which prohibits discrimination on 
the basis of disability by public accommodations and in commercial 
facilities, concurrently with the publication of this rule in this 
issue of the Federal Register.

Development of the 2004 ADA/ABA Guidelines

    In 1994, the Access Board began the process of updating the 1991 
ADAAG by establishing an advisory committee composed of members of the 
design and construction industry, the building code community, and 
State and local government entities, as well as individuals with 
disabilities. In 1998, the Access Board added specific guidelines on 
State and local government facilities, 63 FR 2000 (Jan. 13, 1998), and 
building elements designed for use by children, 63 FR 2060 (Jan. 13, 
1998). In 1999, based largely on the report and recommendations of the 
advisory committee, the Access Board issued a Notice of Proposed 
Rulemaking (NPRM) to update and revise its ADA and ABA Accessibility 
Guidelines. See 64 FR 62248 (Nov. 16, 1999). In 2000, the Access Board 
added specific guidelines on play areas. See 65 FR 62498 (Oct. 18, 
2000). The Access Board released an interim draft of its guidelines to 
the public on April 2, 2002, 67 FR 15509, in order to provide an 
opportunity for entities with model codes to consider amendments that 
would promote further harmonization. In September of 2002, the Access 
Board set forth specific guidelines on recreational facilities. 67 FR 
56352 (Sept. 3, 2002).
    By the date of its final publication on July 23, 2004, the 2004 
ADA/ABA Guidelines had been the subject of extraordinary review and 
public participation. The Access Board received more than 2,500 
comments from individuals with disabilities, affected industries, State 
and local governments, and others. The Access Board provided further 
opportunity for participation by holding public hearings.
    The Department was involved extensively in the development of the 
2004 ADA/ABA Guidelines. As a Federal member of the Access Board, the 
Attorney General's representative voted to approve the revised 
guidelines. ADA Chapter 1 and ADA Chapter 2 of the 2004 ADA/ABA 
Guidelines provided scoping requirements for facilities subject to the 
ADA; ``scoping'' is a term used in the 2004 ADA/ABA Guidelines to 
describe requirements that prescribe which elements and spaces--and, in 
some cases, how many--must comply with the technical specifications. 
ABA Chapter 1 and ABA Chapter 2 provide scoping requirements for 
facilities subject to the ABA (i.e., facilities designed, built, 
altered, or leased with Federal funds). 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.
    These amendments to the 1991 ADAAG have not been adopted previously 
by the Department as ADA Standards. Through this rule, the Department 
is adopting revised ADA Standards consistent with the 2004 ADAAG, 
including all of the amendments to the 1991 ADAAG since 1998. For the 
purposes of title II, the Department's revised standards are entitled 
``The 2010 Standards for Accessible Design'' and consist of the 2004 
ADAAG and the requirements in Sec.  35.151. Because the Department has 
adopted the 2004 ADAAG as part of its title II and title III 
regulations, once the Department's final rules become effective, the 
2004 ADAAG will have legal effect with respect to the Department's 
title II and title III regulations and will cease to be mere guidance 
for those areas regulated by the Department. In 2006, the (DOT) adopted 
the 2004 ADAAG. With respect to those areas regulated by DOT, these 
guidelines, as adopted by DOT have had legal effect since 2006.

The Department's Rulemaking History

    The Department published an advance notice of proposed rulemaking 
(ANPRM) on September 30, 2004, 69 FR 58768, for two reasons: (1) To 
begin the process of adopting the 2004 ADAAG by soliciting public input 
on issues relating to the potential application of the Access Board's 
revisions once the Department adopts them as revised standards; and (2) 
to request background information that would assist the Department in 
preparing a regulatory analysis under the guidance provided in Office 
of Management and Budget (OMB) Circular AB4, sections D (Analytical 
Approaches) and E (Identifying and Measuring Benefits and Costs) (Sept. 
17, 2003), available at https://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24, 2010). While underscoring that the 
Department, as a member of the Access Board, already had reviewed 
comments provided to the Access Board during its development of the 
2004 ADAAG, the Department specifically requested public comment on the 
potential application of the 2004 ADAAG to existing facilities. The 
extent to which the 2004 ADAAG is used with respect to the program 
access requirement in title II (as well as with respect to the barrier 
removal requirement applicable to existing facilities under title III) 
is within the sole discretion of the Department. The ANPRM dealt with 
the Department's responsibilities under both title II and title III.
    The public response to the ANPRM was substantial. The Department 
extended the comment deadline by four months at the public's request. 
70 FR 2992 (Jan. 19, 2005). By the end of the extended comment period, 
the Department had received more than 900 comments covering a broad 
range of issues. Many of the commenters responded to questions posed 
specifically by the Department, including questions regarding the 
Department's application of the 2004 ADAAG once adopted by the 
Department and the Department's regulatory assessment of the costs and 
benefits of particular elements. Many other commenters addressed areas 
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desired regulation or of particular concern.
    To enhance accessibility strides made since the enactment of the 
ADA, commenters asked the Department to focus on previously unregulated 
areas such as ticketing in assembly areas; reservations for hotel 
rooms, rental cars, and boat slips; and captioning. They also asked for 
clarification on some issues in the 1991 regulations, such as the 
requirements regarding service animals. Other commenters dealt with 
specific requirements in the 2004 ADAAG or responded to questions 
regarding elements scoped for the first time in the 2004 ADAAG, 
including recreation facilities and play areas. Commenters also 
provided some information on how to assess the cost of elements in 
small facilities, office buildings, hotels and motels, assembly areas, 
hospitals and long-term care facilities, residential units, recreation 
facilities, and play areas. Still other commenters addressed the 
effective date of the proposed standards, the triggering event by which 
the effective date is calculated for new construction, and variations 
on a safe harbor that would excuse elements built in compliance with 
the 1991 Standards from compliance with the proposed standards.
    After careful consideration of the public comments in response to 
the ANPRM, on June 17, 2008, the Department published an NPRM covering 
title II (73 FR 34466). The Department also published an NPRM on that 
day covering title III (73 FR 34508). The NPRMs addressed the issues 
raised in the public's comments to the ANPRM and sought additional 
comment, generally and in specific areas, such as the Department's 
adoption of the 2004 ADAAG, the Department's regulatory assessment of 
the costs and benefits of the rule, its updates and amendments of 
certain provisions of the existing title II and III regulations, and 
areas that were in need of additional clarification or specificity.
    A public hearing was held on July 15, 2008, in Washington, D.C. 
Forty-five individuals testified in person or by phone. The hearing was 
streamed live over the Internet. By the end of the 60-day comment 
period, the Department had received 4,435 comments addressing a broad 
range of issues many of which were common to the title II and title III 
NPRMs, from representatives of businesses and industries, State and 
local government agencies, disability advocacy organizations, and 
private individuals, many of which addressed issues common to both 
NPRMs.
    The Department notes that this rulemaking was unusual in that much 
of the proposed regulatory text and many of the questions asked across 
titles II and III were the same. Consequently, many of the commenters 
did not provide separate sets of documents for the proposed title II 
and title III rules, and in many instances, the commenters did not 
specify which title was being commented upon. As a result, where 
comments could be read to apply to both titles II and III, the 
Department included them in the comments and responses for each final 
rule.
    Most of the commenters responded to questions posed specifically by 
the Department, including what were the most appropriate definitions 
for terms such as ``wheelchair,'' ``mobility device,'' and ``service 
animal''; how to quantify various benefits that are difficult to 
monetize; what requirements to adopt for ticketing and assembly areas; 
whether to adopt safe harbors for small businesses; and how best to 
regulate captioning. Some comments addressed specific requirements in 
the 2004 ADAAG or responded to questions regarding elements scoped for 
the first time in the 2004 ADAAG, including recreation facilities and 
play areas. Other comments responded to questions posed by the 
Department concerning certain specific requirements in the 2004 ADAAG.

Relationship to Other Laws

    The Department of Justice regulation implementing title II, 28 CFR 
35.103, provides the following:
    (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 
(29 U.S.C. 791) 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, 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.
    These provisions remain unchanged by the final rule. The Department 
recognizes that public entities subject to title II of the ADA may also 
be subject to title I of the ADA, which prohibits discrimination on the 
basis of disability in employment; section 504 of the Rehabilitation 
Act of 1973 and other Federal statutes that prohibit discrimination on 
the basis of disability in the programs and activities of recipients of 
Federal financial assistance; and other Federal statutes such as the 
Air Carrier Access Act (ACAA), 49 U.S.C. 41705 et seq., and the Fair 
Housing Act (FHAct), 42 U.S.C. 3601 et seq. Compliance with the 
Department's title II and title III regulations does not necessarily 
ensure compliance with other Federal statutes.
    Public entities that are subject to the ADA as well as other 
Federal disability discrimination laws must be aware of the 
requirements of all applicable laws and must comply with these laws and 
their implementing regulations. Although in many cases similar 
provisions of different statutes are interpreted to impose similar 
requirements, there are circumstances in which similar provisions are 
applied differently because of the nature of the covered entity or 
activity or because of distinctions between the statutes. For example, 
emotional support animals that do not qualify as service animals under 
the Department's title II regulation may nevertheless qualify as 
permitted reasonable accommodations for persons with disabilities under 
the FHAct and the ACAA. See, e.g., Overlook Mutual Homes, Inc. v. 
Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public entities that 
operate housing facilities must ensure that they apply the reasonable 
accommodation requirements of the FHAct in determining whether to allow 
a particular animal needed by a person with a disability into housing 
and may not use the ADA definition as a justification for reducing 
their FHAct obligations. In addition, nothing in the ADA prevents a 
covered entity subject to one statute from modifying its policies and 
providing greater access in order to assist individuals with 
disabilities in achieving access to entities subject to other Federal 
statutes. For example, a public airport is a title II facility that 
houses air carriers subject to the ACAA. The public airport operator is 
required to comply with the title II requirements, but is not covered 
by the ACAA. Conversely, the air carrier is required to comply with the 
ACAA, but is not covered by title II of the ADA. If a particular animal 
is a service animal for purposes of the ACAA and is thus allowed on an 
airplane, but is not a service animal for purposes of the ADA, nothing 
in the ADA prohibits an airport from allowing a ticketed passenger with 
a disability who is traveling with a service animal that meets the 
ACAA's definition of a service animal to bring that animal into the 
facility even though under the ADA's definition of service animal the 
animal could be lawfully excluded.

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    In addition, public entities (including AMTRAK) that provide public 
transportation services that are subject to subtitle B of title II 
should be reminded that the Department's regulation, at 28 CFR 35.102, 
provides: ``(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, 42 U.S.C. 12141 et 
seq., they are not subject to the requirements of this part.'' The ADA 
regulations of DOT at 49 CFR 37.21(c) state that entities subject to 
DOT's ADA regulations may also be subject to the ADA regulations of the 
Department of Justice. As stated in the preamble to Sec.  37.21(c) in 
DOT's 1991 regulation, ``[t]he DOT rules apply only to the entity's 
transportation facilities, vehicles, or services; the DOJ rules may 
cover the entity's activities more broadly.'' 56 FR 45584, 45736 (Sept. 
6, 1991). Nothing in this final rule alters these provisions.
    The Department recognizes that DOT has its own independent 
regulatory responsibilities under subtitle B of title II of the ADA. To 
the extent that the public transportation services, programs, and 
activities of public entities are covered by subtitle B of title II of 
the ADA, they are subject to the DOT regulations at 49 CFR parts 37 and 
39. Matters covered by subtitle A are covered by this rule. However, 
this rule should not be read to prohibit DOT from elaborating on the 
provisions of this rule in its own ADA rules in the specific regulatory 
contexts for which it is responsible, after appropriate consultation 
with the Department. For example, DOT may issue such specific 
provisions with respect to the use of non-traditional mobility devices, 
e.g., Segways[supreg], on any transportation vehicle subject to 
subtitle B. While DOT may establish transportation-specific 
requirements that are more stringent or expansive than those set forth 
in this rule, any such requirements cannot reduce the protections and 
requirements set forth in this rule.
    In addition, activities not specifically addressed by DOT's ADA 
regulation may be covered by DOT's regulation implementing section 504 
of the Rehabilitation Act for its federally assisted programs and 
activities at 49 CFR part 27. Like other programs of public entities 
that are also recipients of Federal financial assistance, those 
programs would be covered by both the section 504 regulation and this 
part. Airports operated by public entities are not subject to DOT's ADA 
regulation, but they are subject to subpart A of title II and to this 
rule. The Department of Justice regulation implementing title II 
generally, and the DOT regulations specifically implementing subtitle B 
of title II, may overlap. If there is overlap in areas covered by 
subtitle B which DOT regulates, these provisions shall be harmonized in 
accordance with the DOT regulation at 49 CFR 37.21(c).

Organization of This Rule

    Throughout this rule, the original ADA Standards, which are 
republished as Appendix D to 28 CFR part 36, will be referred to as the 
``1991 Standards.'' The original title II regulation, 28 CFR part 35, 
will be referred to as the ``1991 title II regulation.'' ADA Chapter 1, 
ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA 
Guidelines, codified at 36 CFR part 1191, app. B and D (2009) will be 
referred to as the ``2004 ADAAG.'' The Department's Notice of Proposed 
Rulemaking, 73 FR 34466 (June 17, 2008), will be referred to as the 
``NPRM.'' As noted above, the 2004 ADAAG, taken together with the 
requirements contained in Sec.  35.151 (New Construction and 
Alterations) of the final rule, will be referred to as the ``2010 
Standards.'' The amendments made to the 1991 title II regulation and 
the adoption of the 2004 ADAAG, taken together, will be referred to as 
the ``final rule.''
    In performing the required periodic review of its existing 
regulation, the Department has reviewed the title II regulation section 
by section, and, as a result, has made several clarifications and 
amendments in this rule. Appendix A of the final rule, ``Guidance on 
Revisions to ADA Regulation on Nondiscrimination on the Basis of 
Disability in State and Local Government Services,'' codified as 
Appendix A to 28 CFR part 35, provides the Department's response to 
comments and its explanations of the changes to the regulation. The 
section entitled ``Section-by-Section Analysis and Response to 
Comments'' in Appendix A provides a detailed discussion of the changes 
to the title II regulation. The Section-by-Section Analysis follows the 
order of the 1991 title II regulation, except that regulatory sections 
that remain unchanged are not referenced. The discussion within each 
section explains the changes and the reasoning behind them, as well as 
the Department's response to related public comments. Subject areas 
that deal with more than one section of the regulation include 
references to the related sections, where appropriate. The Section-by-
Section Analysis also discusses many of the questions asked by the 
Department for specific public response. The section of Appendix A 
entitled ``Other Issues'' discusses public comments on several issues 
of concern to the Department that were the subject of questions that 
are not specifically addressed in the Section-by-Section Analysis.
    The Department's description of the 2010 Standards, as well as a 
discussion of the public comments on specific sections of the 2004 
ADAAG, is found in Appendix B of the final title III rule, ``Analysis 
and Commentary on the 2010 ADA Standards for Accessible Design,'' and 
codified as Appendix B to 28 CFR part 36.
    The provisions of this rule generally take effect six months from 
its publication in the Federal Register. The Department has determined, 
however, that compliance with the 2010 Standards shall not be required 
until 18 months from the publication date of this rule. This exception 
is set forth in Sec.  35.151(c) and is discussed in greater detail in 
Appendix A. See Appendix A discussion entitled ``Section 35.151(c) New 
construction and alterations.''
    This final rule only addresses issues that were identified in the 
NPRM as subjects the Department intended to regulate through this 
rulemaking proceeding. Because the Department indicated in the NPRM 
that it did not intend to regulate certain areas, including equipment 
and furniture, accessible golf cars, and movie captioning and video 
description, as part of this rulemaking proceeding, the Department 
believes it would be appropriate to solicit more public comment about 
these areas prior to making them the subject of a rulemaking. The 
Department intends to engage in additional rulemaking in the near 
future addressing accessibility in these areas and others, including 
next generation 9-1-1 and accessibility of Web sites operated by 
covered public entities and public accommodations.

Additional Information

Regulatory Process Matters (SBREFA, Regulatory Flexibility Act, and 
Executive Orders)

    The Department must provide two types of assessments as part of its 
final rule: an analysis of the costs and benefits of adopting the 
changes contained in this rule, and a periodic review of its existing 
regulations to consider their impact on small entities, including small 
businesses, small nonprofit organizations, and small governmental 
jurisdictions. See E.O. 12866, 58 FR 51735, 3 CFR, 1994

[[Page 56168]]

Comp., p. 638, as amended; Regulatory Flexibility Act of 1980 (RFA), 5 
U.S.C. 601 et seq., as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB 
Circular A-4, available at https://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24, 2010); E.O. 13272, 67 FR 53461, 3 
CFR, 2003 Comp., p. 247.
    In the NPRM, the Department kept open the possibility that, if 
warranted by public comments received on an issue raised by the 2004 
ADAAG, or by the results of the Department's Initial Regulatory Impact 
Analysis (available at ada.gov/NPRM2008/ria.htm) showing that the 
likely costs of making a particular feature or facility accessible were 
disproportionate to the benefits (including both monetized and non-
monetized benefits) to persons with disabilities, the Attorney General, 
as a member of the Access Board, could return the issue to the Access 
Board for further consideration. After careful consideration, the 
Department has determined that it is unnecessary to return any issues 
to the Access Board for additional consideration.

Executive Order 12866

    This rule has been reviewed by the Office of Management and Budget 
(OMB) under Executive Order 12866. The Department has evaluated its 
existing regulations for title II and title III section by section, and 
many of the provisions in the final rule for both titles reflect its 
efforts to mitigate any negative effects on small entities. A Final 
Regulatory Impact Analysis (Final RIA or RIA) was prepared by the 
Department's contractor, HDR[bond]HLB Decision Economics, Inc. (HDR). 
In accordance with Executive Order 12866, as amended, and OMB Circular 
A-4, the Department has reviewed and considered the Final RIA and has 
accepted the results of this analysis as its assessment of the benefits 
and costs of the final rules.
    Executive Order 12866 refers explicitly not only to monetizable 
costs and benefits but also to ``distributive impacts'' and ``equity,'' 
see E.O. 12866, section 1(a), and it is important to recognize that the 
ADA is intended to provide important benefits that are distributional 
and equitable in character. The ADA states, ``[i]t is the purpose of 
this [Act] (1) to provide a clear and comprehensive national mandate 
for the elimination of discrimination against individuals with 
disabilities; [and] (2) to provide clear, strong, consistent, 
enforceable standards addressing discrimination against individuals 
with disabilities[.]'' 42 U.S.C. 12101(b). Many of the benefits of this 
rule stem from the provision of such standards, which will promote 
inclusion, reduce stigma and potential embarrassment, and combat 
isolation, segregation, and second-class citizenship of individuals 
with disabilities. Some of these benefits are, in the words of 
Executive Order 12866, ``difficult to quantify, but nevertheless 
essential to consider.'' E.O. 12866, section 1(a). The Department has 
considered such benefits here.

Final Regulatory Impact Analysis

    The Final RIA embodies a comprehensive benefit-cost analysis of the 
final rules for both title II and title III and assesses the 
incremental benefits and costs of the 2010 Standards relative to a 
primary baseline scenario (1991 Standards). In addition, the Department 
conducted additional research and analyses for requirements having the 
highest negative net present values under the primary baseline 
scenario. This approach was taken because, while the 1991 Standards are 
the only uniform set of accessibility standards that apply to public 
accommodations, commercial facilities, and State and local government 
facilities nationwide, it is also understood that many State and local 
jurisdictions have already adopted IBC/ANSI model code provisions that 
mirror those in the 2004 ADAAG. The assessments based on this approach 
assume that covered entities currently implementing codes that mirror 
the 2004 ADAAG will not need to modify their code requirements once the 
rules are finalized. They also assume that, even without the final 
rules, the current level of compliance would be unchanged. The Final 
RIA contains specific information, including data in chart form, 
detailing which States have already adopted the accessibility standards 
for this subset of six requirements. The Department believes that the 
estimates resulting from this approach represent a reasonable upper and 
lower measure of the likely effects these requirements will have that 
the Department was able to quantify and monetize.
    The Final RIA estimates the benefits and costs for all new 
(referred to as ``supplemental'') requirements and revised requirements 
across all types of newly constructed and existing facilities. The 
Final RIA also incorporates a sophisticated risk analysis process that 
quantifies the inherent uncertainties in estimating costs and benefits 
and then assesses (through computer simulations) the relative impact of 
these factors when varied simultaneously. A copy of the Final RIA will 
be made available online for public review on the Department's ADA Home 
Page (https://www.ada.gov).
    From an economic perspective (as specified in OMB Circular A-4), 
the results of the Final RIA demonstrate that the Department's final 
rules increase social resources and thus represent a public good 
because monetized benefits exceed monetized costs--that is, the 
regulations have a positive net present value (NPV). Indeed, under 
every scenario assessed in the Final RIA, the final rules have a 
positive NPV. The Final RIA's first scenario examines the incremental 
impact of the final rules using the ``main'' set of assumptions (i.e., 
assuming a primary baseline (1991 Standards), that the safe harbor 
applies, and that for title III entities barrier removal is readily 
achievable for 50 percent of elements subject to supplemental 
requirements).

                    Expected Impact of the Rules \2\
                              [In billions]
------------------------------------------------------------------------
                                       Total expected    Total expected
  Discount rate       Expected NPV      PV (benefits)      PV (costs)
------------------------------------------------------------------------
             3%              $40.4              $66.2             $25.8
             7%                9.3               22.0              12.8
------------------------------------------------------------------------
\2\ The analysis assumes these regulations will be in force for 15
  years. Incremental costs and benefits are calculated for all
  construction, alterations, and barrier removal that is expected to
  occur during these 15 years. The analysis also assumes that any new or
  revised ADA rules enacted 15 years from now will include a safe harbor
  provision. Thus, any facilities constructed in year 14 of the final
  rules are assumed to continue to generate benefits to users, and to
  incur any operating or replacement costs for the life of these
  buildings, which is assumed to be 40 years.


[[Page 56169]]

    Under this set of assumptions, the final rules have an expected NPV 
of $9.3 billion (7 percent discount rate) and $40.4 billion (3 percent 
discount rate). See Final RIA, table ES-1 & figure ES-2.
Water Closet Clearances
    The Department gave careful consideration to the costs and benefits 
of its adoption of the standards relating to water closet clearances in 
single-user toilet rooms. The primary effect of the Department's 
proposed final rules governing water closet clearances in single-user 
toilet rooms with in-swinging and out-swinging doors is to allow 
sufficient room for ``side'' or ``parallel'' methods of transferring 
from a wheelchair to a toilet. Under the current 1991 Standards, the 
requisite clearance space in single-user toilet rooms between and 
around the toilet and the lavatory does not permit these methods of 
transfer. Side or parallel transfers are used by large numbers of 
persons who use wheelchairs and are regularly taught in rehabilitation 
and occupational therapy. Currently, persons who use side or parallel 
transfer methods from their wheelchairs are faced with a stark choice 
at establishments with single-user toilet rooms--i.e., patronize the 
establishment but run the risk of needing assistance when using the 
restroom, travel with someone who would be able to provide assistance 
in toileting, or forgo the visit entirely. The revised water closet 
clearance regulations would make single-user toilet rooms accessible to 
all persons who use wheelchairs, not just those with the physical 
strength, balance, and dexterity and the training to use a front-
transfer method. Single-user toilet rooms are located in a wide variety 
of public and private facilities, including restaurants, fast-food 
establishments, schools, retail stores, parks, sports stadiums, and 
hospitals. Final promulgation of these requirements might thus, for 
example, enable a person who uses a side or parallel transfer method to 
use the restroom (or use the restroom independently) at his or her 
local coffee shop for the first time.
    Because of the complex nature of its cost-benefit analysis, the 
Department is providing ``plain language'' descriptions of the benefits 
calculations for the two revised requirements with the highest 
estimated total costs: Water closet clearance in single-user toilet 
rooms with out-swinging doors (RIA Req.  28) (section 604.3 of 
the 2010 Standards) and water closet clearance in single-user toilet 
rooms with in-swinging doors (RIA Req.  32) (sections 604.3 
and 603.2.3 Exception 2 of the 2010 Standards). Since many of the 
concepts and calculations in the Final RIA are highly technical, it is 
hoped that, by providing ``lay'' descriptions of how benefits are 
monetized for an illustrative set of requirements, the Final RIA will 
be more transparent and afford readers a more complete understanding of 
the benefits model generally. Because of the widespread adoption of the 
water closet clearance standards in existing State and local building 
codes, the following calculations use the IBC/ANSI baseline.
    General description of monetized benefits for water closet 
clearance in single-user toilet rooms--out-swinging doors (Req. # 28). 
In order to assess monetized benefits for the requirement covering 
water closet clearances in single-user toilet rooms with out-swinging 
doors, a determination needed to be made concerning the population of 
users with disabilities who would likely benefit from this revised 
standard. Based on input received from a panel of experts jointly 
convened by HDR and the Department to discuss benefits-related 
estimates and assumptions used in the RIA model, it was assumed that 
accessibility changes brought about by this requirement would benefit 
persons with any type of ambulatory (i.e., mobility-related) 
disability, such as persons who use wheelchairs, walkers, or braces. 
Recent census figures estimate that about 11.9 percent of Americans 
ages 15 and older have an ambulatory disability, or about 35 million 
people. This expert panel also estimated that single-user toilet rooms 
with out-swinging doors would be used slightly less than once every 
other visit to a facility with such toilet rooms covered by the final 
rules (or, viewed another way, about once every two hours spent at a 
covered facility assumed to have one or more single-user toilet rooms 
with out-swinging doors) by an individual with an ambulatory 
disability. The expert panel further estimated that, for such 
individuals, the revised requirement would result in an average time 
savings of about five and a half minutes when using the restroom. This 
time savings is due to the revised water closet clearance standard, 
which permits, among other things, greater flexibility in terms of 
access to the toilet by parallel or side transfer, thereby perhaps 
reducing the wait for another person to assist with toileting and the 
need to twist or struggle to access the toilet independently. Based on 
average hourly wage rates compiled by the U.S. Department of Labor, the 
time savings for Req.  28 is valued at just under $10 per 
hour.
    For public and private facilities covered by the final rules, it is 
estimated that there are currently about 11 million single-user toilet 
rooms with out-swinging doors. The majority of these types of single-
user toilet rooms, nearly 7 million, are assumed to be located at 
``Indoor Service Establishments,'' a broad facility group that 
encompasses various types of indoor retail stores such as bakeries, 
grocery stores, clothing stores, and hardware stores. Based on 
construction industry data, it was estimated that approximately 3 
percent of existing single-user toilet rooms with out-swinging doors 
would be altered each year, and that the number of newly constructed 
facilities with these types of toilet rooms would increase at the rate 
of about 1 percent each year. However, due to the widespread adoption 
at the State and local level of model code provisions that mirror Req. 
 28, it is further understood that about half of all existing 
facilities assumed to have single-user toilet rooms with out-swinging 
doors already are covered by State or local building codes that require 
equivalent water closet clearances. Due to the general element-by-
element safe harbor provision in the final rules, no unaltered single-
user toilet rooms that comply with the current 1991 Standards will be 
required to retrofit to meet the revised clearance requirements in the 
final rules.
    With respect to new construction, it is assumed that each single-
user toilet room with an out-swinging door will last the life of the 
building, about 40 years. For alterations, the amount of time such a 
toilet room will be used depends upon the remaining life of the 
building (i.e., a period of time between 1 and 39 years).
    Summing up monetized benefits to users with disabilities across all 
types of public and private facilities covered by the final rules, and 
assuming 46 percent of covered facilities nationwide are located in 
jurisdictions that have adopted the relevant equivalent IBC/ANSI model 
code provisions, it is expected that the revised requirement for water 
closet clearance in single-user toilet rooms with out-swinging doors 
will result in net benefits of approximately $900 million over the life 
of these regulations.
    General description of monetized benefits for water closet 
clearance in single-user toilet rooms--in-swinging doors (Req. # 32). 
For the water closet clearance in single-user toilet rooms with the in-
swinging door requirement (Req. 32), the expert panel 
determined that the primary beneficiaries would be persons who use 
wheelchairs. As compared to single-user toilet rooms with out-swinging 
doors, those with in-swinging doors tend to be larger (in

[[Page 56170]]

terms of square footage) in order to accommodate clearance for the in-
swinging door and, thus, are already likely to have adequate clear 
floor space for persons with disabilities who use other types of 
mobility aids such as walkers and crutches.
    The expert benefits panel estimated that single-user toilet rooms 
with in-swinging doors are used less frequently on average--about once 
every 20 visits to a facility with such a toilet room by a person who 
uses a wheelchair--than their counterpart toilet rooms with out-
swinging doors. This panel also determined that, on average, each user 
would realize a time savings of about 9 minutes as a result of the 
enhanced clearances required by this revised standard.
    The RIA estimates that there are about 4 million single-user toilet 
rooms with in-swinging doors in existing facilities. About half of the 
single-user toilet rooms with in-swinging doors are assumed to be 
located in single-level stores, and about a quarter of them are assumed 
to be located in restaurants. Based on construction industry data, it 
was estimated that approximately 3 percent of existing single-user 
toilet rooms with in-swinging doors would be altered each year, and 
that the number of newly constructed facilities with these types of 
toilet rooms would increase at the rate of about 1 percent each year. 
However, due to the widespread adoption at the State and local level of 
model code provisions that mirror Req. 32, it is further 
understood that slightly more than 70 percent of all existing 
facilities assumed to have single-user toilet rooms with in-swinging 
doors already are covered by State or local building codes that require 
equivalent water closet clearances. Due to the general element-by-
element safe harbor provision in the final rules, no unaltered single-
user toilet rooms that comply with the current 1991 Standards will be 
required to retrofit to meet the revised clearance requirements in the 
final rules.
    Similar to the assumptions for Req. 28, it is assumed that 
newly constructed single-user toilet rooms with in-swinging doors will 
last the life of the building, about 40 years. For alterations, the 
amount of time such a toilet room will be used depends upon the 
remaining life of the building (i.e., a period of time between 1 and 39 
years). Over this time period, the total estimated value of benefits to 
users of water closets with in-swinging doors from the time they will 
save and decreased discomfort they will experience is nearly $12 
million.
    Additional benefits of water closet clearance standards. The 
standards requiring sufficient space in single-user toilet rooms for a 
wheelchair user to effect a side or parallel transfer are among the 
most costly (in monetary terms) of the new provisions in the Access 
Board's guidelines that the Department adopts in this rule--but also, 
the Department believes, one of the most beneficial in non-monetary 
terms. Although the monetized costs of these requirements substantially 
exceed the monetized benefits, the additional benefits that persons 
with disabilities will derive from greater safety, enhanced 
independence, and the avoidance of stigma and humiliation--benefits 
that the Department's economic model could not put in monetary terms--
are, in the Department's experience and considered judgment, likely to 
be quite high. Wheelchair users, including veterans returning from our 
Nation's wars with disabilities, are taught to transfer onto toilets 
from the side. Side transfers are the safest, most efficient, and most 
independence-promoting way for wheelchair users to get onto the toilet. 
The opportunity to effect a side transfer will often obviate the need 
for a wheelchair user or individual with another type of mobility 
impairment to obtain the assistance of another person to engage in what 
is, for most people, among the most private of activities. Executive 
Order 12866 refers explicitly not only to monetizable costs and 
benefits but also to ``distributive impacts'' and ``equity,'' see E.O. 
12866, section 1(a), and it is important to recognize that the ADA is 
intended to provide important benefits that are distributional and 
equitable in character. These water closet clearance provisions will 
have non-monetized benefits that promote equal access and equal 
opportunity for individuals with disabilities, and will further the 
ADA's purpose of providing ``a clear and comprehensive national mandate 
for the elimination of discrimination against individuals with 
disabilities.'' 42 U.S.C. 12101(b)(1).
    The Department's calculations indicated that, in fact, people with 
the relevant disabilities would have to place only a very small 
monetary value on these quite substantial benefits for the costs and 
benefits of these water closet clearance standards to break even. To 
make these calculations, the Department separated out toilet rooms with 
out-swinging doors from those with in-swinging doors, because the costs 
and benefits of the respective water closet clearance requirements are 
significantly different. The Department estimates that, assuming 46 
percent of covered facilities nationwide are located in jurisdictions 
that have adopted the relevant equivalent IBC/ANSI model code 
provisions, the costs of the requirement as applied to toilet rooms 
with out-swinging doors will exceed the monetized benefits by $454 
million, an annualized net cost of approximately $32.6 million. But a 
large number of people with disabilities will realize benefits of 
independence, safety, and avoided stigma and humiliation as a result of 
the requirement's application in this context. Based on the estimates 
of its expert panel and its own experience, the Department believes 
that both wheelchair users and people with a variety of other mobility 
disabilities will benefit. The Department estimates that people with 
the relevant disabilities will use a newly accessible single-user 
toilet room with an out-swinging door approximately 677 million times 
per year. Dividing the $32.6 million annual cost by the 677 million 
annual uses, the Department concludes that for the costs and benefits 
to break even in this context, people with the relevant disabilities 
will have to value safety, independence, and the avoidance of stigma 
and humiliation at just under 5 cents per visit. The Department 
believes, based on its experience and informed judgment, that 5 cents 
substantially understates the value people with the relevant 
disabilities would place on these benefits in this context.
    There are substantially fewer single-user toilet rooms with in-
swinging doors, and substantially fewer people with disabilities will 
benefit from making those rooms accessible. While both wheelchair users 
and individuals with other ambulatory disabilities will benefit from 
the additional space in a room with an out-swinging door, the 
Department believes, based on the estimates of its expert panel and its 
own experience, that wheelchair users likely will be the primary 
beneficiaries of the in-swinging door requirement. The Department 
estimates that people with the relevant disabilities will use a newly 
accessible single-user toilet room with an in-swinging door 
approximately 8.7 million times per year. Moreover, the alteration 
costs to make a single-user toilet room with an in-swinging door 
accessible are substantially higher (because of the space taken up by 
the door) than the equivalent costs of making a room with an out-
swinging door accessible. Thus, the Department calculates that, 
assuming 72 percent of covered facilities nationwide are located in 
jurisdictions that have adopted the

[[Page 56171]]

relevant equivalent IBC/ANSI model code provisions, the costs of 
applying the toilet room accessibility standard to rooms with in-
swinging doors will exceed the monetized benefits of doing so by $266.3 
million over the life of the regulations, or approximately $19.14 
million per year. Dividing the $19.14 million annual cost by the 8.7 
million annual uses, the Department concludes that for the costs and 
benefits to break even in this context, people with the relevant 
disabilities will have to value safety, independence, and the avoidance 
of stigma and humiliation at approximately $2.20 per visit. The 
Department believes, based on its experience and informed judgment, 
that this figure approximates, and probably understates, the value 
wheelchair users place on safety, independence, and the avoidance of 
stigma and humiliation in this context.
Alternate Scenarios
    Another scenario in the Final RIA explores the incremental impact 
of varying the assumptions concerning the percentage of existing 
elements subject to supplemental requirements for which barrier removal 
would be readily achievable. Readily achievable barrier removal rates 
are modeled at 0 percent, 50 percent, and 100 percent levels. The 
results of this scenario show that the expected NPV is positive for 
each readily achievable barrier removal rate and that varying this 
assumed rate has little impact on expected NPV. See Final RIA, figure 
ES-3.
    A third set of analyses in the Final RIA demonstrates the impact of 
using alternate baselines based on model codes instead of the primary 
baseline. The IBC model codes, which have been widely adopted by State 
and local jurisdictions around the country, are significant because 
many of the requirements in the final rules mirror accessibility 
provisions in the IBC model codes (or standards incorporated therein by 
reference, such as ANSI A117.1). The actual economic impact of the 
Department's final rules is, therefore, tempered by the fact that many 
jurisdictions nationwide have already adopted and are enforcing 
portions of the final rules--indeed, this was one of the goals 
underlying the Access Board's efforts to harmonize the 2004 ADAAG 
Standards with the model codes. However, capturing the economic impact 
of this reality poses a difficult modeling challenge due to the variety 
of methods by which States and localities have adopted the IBC/ANSI 
model codes (e.g., in whole, in part, and with or without amendments), 
as well as the lack of a national ``facility census'' establishing the 
location, type, and age of existing ADA-covered facilities.
    As a result, in the first set of alternate IBC baseline analyses, 
the Final RIA assumes that all of the three IBC model codes--IBC 2000, 
IBC 2003, and IBC 2006--have been fully adopted by all jurisdictions 
and apply to all facilities nationwide. As with the primary baseline 
scenarios examined in the Final RIA, use of these three alternate IBC 
baselines results in positive expected NPVs in all cases. See Final 
RIA, figure ES-4. These results also indicate that IBC 2000 and IBC 
2006 respectively have the highest and lowest expected NPVs. These 
results are due to changes in the make-up of the set of requirements 
that is included in each alternative baseline.
    Additionally, a second, more limited alternate baseline analysis in 
the Final RIA uses a State-specific and requirement-specific alternate 
IBC/ANSI baseline in order to demonstrate the likely actual incremental 
impact of an illustrative subset of 20 requirements under current 
conditions nationwide. For this analysis, research was conducted on a 
subset of 20 requirements in the final rules that have negative net 
present values under the primary baseline and readily identifiable IBC/
ANSI counterparts to determine the extent to which they each 
respectively have been adopted at the State or local level. With 
respect to facilities, the population of adopting jurisdictions was 
used as a proxy for facility location. In other words, it was assumed 
that the number of ADA-covered facilities respectively compliant with 
these 20 requirements was equal to the percentage of the United States 
population (based on statistics from the Census Bureau) currently 
residing in those States or local jurisdictions that have adopted the 
IBC/ANSI counterparts to these requirements. The results of this more 
limited analysis, using State-specific and requirement-specific 
alternate IBC/ANSI baselines for these 20 requirements, demonstrate 
that the widespread adoption of IBC model codes by States and 
localities significantly lessens the financial impact of these specific 
requirements. Indeed, the Final RIA estimates that, if the NPVs for 
these 20 requirements resulting from the requirement-specific alternate 
IBC/ANSI baseline are substituted for their respective results under 
the primary baseline, the overall NPV for the final rules increases 
from $9.2 billion to $12.0 billion. See Final RIA, section 6.2.2 & 
table 10.
Benefits Not Monetized in the Formal Analysis
    Finally, the RIA recognizes that additional benefits are likely to 
result from the new standards. Many of these benefits are more 
difficult to quantify. Among the potential benefits that have been 
discussed by researchers and advocates are reduced administrative costs 
due to harmonized guidelines, increased business opportunities, 
increased social development, and improved health benefits. For 
example, the final rules will substantially increase accessibility at 
newly scoped facilities such as recreation facilities and judicial 
facilities, which previously have been very difficult for persons with 
disabilities to access. Areas where the Department believes entities 
may incur benefits that are not monetized in the formal analysis 
include, but may not be limited to, the following:
    Use benefits accruing to persons with disabilities. The final rules 
should improve the overall sense of well-being of persons with 
disabilities, who will know that public entities and places of public 
accommodation are generally accessible, and who will have improved 
individual experiences. Some of the most frequently cited qualitative 
benefits of increased access are the increase in one's personal sense 
of dignity that arises from increased access and the decrease in 
possibly humiliating incidents due to accessibility barriers. 
Struggling to join classmates on a stage, to use a bathroom with too 
little clearance, or to enter a swimming pool all negatively affect a 
person's sense of independence and can lead to humiliating accidents, 
derisive comments, or embarrassment. These humiliations, together with 
feelings of being stigmatized as different or inferior from being 
relegated to use other, less comfortable or pleasant elements of a 
facility (such as a bathroom instead of a kitchen sink for rinsing a 
coffee mug at work), all have a negative effect on persons with 
disabilities.
    Use benefits accruing to persons without disabilities. Improved 
accessibility can affect more than just the rule's target population; 
persons without disabilities may also benefit from many of the 
requirements. Even though the requirements were not designed to benefit 
persons without disabilities, any time savings or easier access to a 
facility experienced by persons without disabilities are also benefits 
that should properly be attributed to that change in accessibility. 
Curb cuts in sidewalks make life easier for those using wheeled 
suitcases or pushing a baby stroller. For people with

[[Page 56172]]

a lot of luggage or a need to change clothes, the larger bathroom 
stalls can be highly valued. A ramp into a pool can allow a child (or 
adult) with a fear of water to ease into that pool. All are examples of 
``unintended'' benefits of the rule. And ideally, all should be part of 
the calculus of the benefits to society of the rule.
    Social benefits. Evidence supports the notion that children with 
and without disabilities benefit in their social development from 
interaction with one another. Therefore, there will likely be social 
development benefits generated by an increase in accessible play areas. 
However, these benefits are nearly impossible to quantify for several 
reasons. First, there is no guarantee that accessibility will generate 
play opportunities between children with and without disabilities. 
Second, there may be substantial overlap between interactions at 
accessible play areas and interactions at other facilities, such as 
schools and religious facilities. Third, it is not certain what the 
unit of measurement for social development should be.
    Non-use benefits. There are additional, indirect benefits to 
society that arise from improved accessibility. For instance, resource 
savings may arise from reduced social service agency outlays when 
people are able to access centralized points of service delivery rather 
than receiving home-based care. Home-based and other social services 
may include home health care visits and welfare benefits. Third-party 
employment effects can arise when enhanced accessibility results in 
increasing rates of consumption by disabled and non-disabled 
populations, which in turn results in reduced unemployment.
    Two additional forms of benefits are discussed less often, let 
alone quantified: Option value and existence value. Option value is the 
value that people with and without disabilities derive from the option 
of using accessible facilities at some point in the future. As with 
insurance, people derive benefit from the knowledge that the option to 
use the accessible facility exists, even if it ultimately goes unused. 
Simply because an individual is a non-user of accessible elements today 
does not mean that he or she will remain so tomorrow. In any given 
year, there is some probability that an individual will develop a 
disability (either temporary or permanent) that will necessitate use of 
these features. For example, the 2000 Census found that 41.9 percent of 
adults 65 years and older identified themselves as having a disability. 
Census Bureau figures, moreover, project that the number of people 65 
years and older will more than double between 2000 and 2030--from 35 
million to 71.5 million. Therefore, even individuals who have no direct 
use for accessibility features today get a direct benefit from the 
knowledge of their existence should such individuals need them in the 
future.
    Existence value is the benefit that individuals get from the plain 
existence of a good, service or resource--in this case, accessibility. 
It can also be described as the value that people both with and without 
disabilities derive from the guarantees of equal treatment and non-
discrimination that are accorded through the provision of accessible 
facilities. In other words, people value living in a country that 
affords protections to individuals with disabilities, whether or not 
they themselves are directly or indirectly affected. Unlike use 
benefits and option value, existence value does not require an 
individual ever to use the resource or plan on usi