Federal Register, Volume 81 Issue 155 (Thursday, August 11, 2016)

[Federal Register Volume 81, Number 155 (Thursday, August 11, 2016)]
[Rules and Regulations]
[Pages 53204-53243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17417]

[[Page 53203]]

Vol. 81

Thursday,

No. 155

August 11, 2016

Part II

Department of Justice

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28 CFR Parts 35 and 36

Amendment of Americans With Disabilities Act Title II and Title III
Regulations To Implement ADA Amendments Act of 2008; Final Rule

Federal Register / Vol. 81 , No. 155 / Thursday, August 11, 2016 /
Rules and Regulations

[[Page 53204]]

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DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Parts 35 and 36

[CRT Docket No. 124; AG Order No. 3702-2016]
RIN 1190-AA59

Amendment of Americans With Disabilities Act Title II and Title
III Regulations To Implement ADA Amendments Act of 2008

AGENCY: Civil Rights Division, Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice (Department) is issuing this final
rule to amend its Americans with Disabilities Act (ADA) regulations in
order to incorporate the statutory changes to the ADA set forth in the
ADA Amendments Act of 2008 (ADA Amendments Act or the Act), which took
effect on January 1, 2009. In response to earlier Supreme Court
decisions that significantly narrowed the application of the definition
of ``disability'' under the ADA, Congress enacted the ADA Amendments
Act to restore the understanding that the definition of ``disability''
shall be broadly construed and applied without extensive analysis.
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. In
this final rule, the Department is adding new sections to its title II
and title III ADA regulations to set forth the proper meaning and
interpretation of the definition of ``disability'' and to make related
changes required by the ADA Amendments Act in other sections of the
regulations.

DATES: This rule will take effect October 11, 2016.

FOR FURTHER INFORMATION CONTACT: Rebecca Bond, Section Chief,
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).
You may obtain copies of this final rule in an alternative format
by calling the ADA Information Line at (800) 514-0301 (voice) and (800)
514-0383 (TTY). This final rule is also available on the ADA Home Page
at www.ada.gov.

SUPPLEMENTARY INFORMATION: The meaning and interpretation of the
definitions of ``disability'' in the title II and title III regulations
are identical, and the preamble will discuss the revisions to both
regulations concurrently. Because the ADA Amendments Act's revisions to
the ADA have been codified into the U.S. Code, the final rule
references the revised U.S. 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 110-325,
September 25, 2008.\1\
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\1\ The Findings and Purposes of the ADA Amendments Act are also
referenced in the codification of the ADA as a note to 42 U.S.C.
12101.
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This final rule was submitted to the Office of Management and
Budget's (OMB) Office of Information and Regulatory Affairs for review
prior to publication in the Federal Register.

I. Executive Summary

Purpose

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.

Legal Authority

The ADA Amendments Act was signed into law by President George W.
Bush on September 25, 2008, with a statutory effective date of January
1, 2009. Public Law 110-325, sec. 8, 122 Stat. 3553, 3559 (2008). The
Act authorizes the Attorney General to issue regulations under title II
and title III of the ADA to implement sections 3 and 4 of the Act,
including the rules of construction set forth in section 3. 42 U.S.C.
12205a.

Summary of Key Provisions of the Act and Rule

The ADA Amendments Act made important changes to the meaning and
interpretation of the term ``disability'' in the ADA in order to
effectuate Congress's intent to restore the broad scope of the ADA by
making it easier for an individual to establish that he or she has a
disability. See Public Law 110-325, sec. 2(a)(3)-(7). The Department is
making several major revisions to the meaning and interpretation of the
term ``disability'' contained in the title II and title III ADA
regulations in order to implement the ADA Amendments Act. These
regulatory revisions are based on specific provisions in the ADA
Amendments Act or on specific language in the legislative history. The
revised language clarifies that the term ``disability'' shall be
interpreted broadly and explains that the primary object of attention
in cases brought under the ADA should be whether covered entities have
complied with their obligations not to discriminate based on disability
and that the question of whether an individual's impairment is a
disability under the ADA should not demand extensive analysis. The
revised regulations expand the definition of ``major life activities''
by providing a non-exhaustive list of major life activities that
specifically includes the operation of major bodily functions. 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:

--That the term ``substantially limits'' shall be construed broadly in
favor of expansive coverage, to the maximum extent permitted by the
terms of the ADA;
--that an impairment is a disability if it substantially limits the
ability of an individual to perform a major life activity as compared
to most people in the general population;
--that the primary issue in a case brought under the ADA should be
whether an entity covered under the ADA has complied with its
obligations and whether discrimination has occurred, not the extent to
which the individual's impairment substantially limits a major life
activity;
--that in making the individualized assessment required by the ADA, the
term ``substantially limits'' shall be interpreted and applied to
require a degree of functional limitation that is lower than the
standard for ``substantially limits'' applied prior to the ADA
Amendments Act;
--that the comparison of an individual's performance of a major life
activity to the performance of the same major life activity by most
people in the general population usually will not require scientific,
medical, or statistical evidence;
--that the ameliorative effects of mitigating measures other than
``ordinary eyeglasses or contact lenses'' shall not be considered in
assessing whether an individual has a ``disability'';
--that an impairment that is episodic or in remission is a disability
if it would substantially limit a major life activity when active; and

[[Page 53205]]

--that an impairment that substantially limits one major life activity
need not substantially limit other major life activities in order to be
considered a substantially limiting impairment. The final rule also
states that an individual meets the requirement of ``being regarded as
having such an impairment'' if the individual establishes that he or
she has been subjected to a prohibited action because of an actual or
perceived physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity. It also provides
that individuals covered only under the ``regarded as'' prong are not
entitled to reasonable modifications.

The ADA Amendments Act's revisions to the ADA apply to title I
(employment), title II (State and local governments), and title III
(public accommodations) of the ADA. Accordingly, consistent with
Executive Order 13563'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 16978 (Mar. 25, 2011). This will promote consistency in the
application of the ADA and avoid confusion among entities subject to
both titles I and II, as well as those subject to both titles I and
III.

Changes Made From the Proposed Rule

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:
Added Attention-Deficit/Hyperactivity Disorder (ADHD) as
an example of a physical or mental impairment in Sec. Sec.
35.108(b)(2) and 36.105(b)(2).
Added ``writing'' as an example of a major life activity
in Sec. Sec. 35.108(c) and 36.105(c).
Revised the discussion of the ``regarded as prong'' in
Sec. Sec. 35.108(f) and 36.105(f) to clarify that the burden is on a
covered entity to establish that, objectively, an impairment is
``transitory and minor'' and therefore not covered by the ADA.
Modified the rules of construction to make them more
consistent with the statute and to provide more clarity, including
Sec. Sec. 35.108(a)(2) and 36.105(a)(2), 35.108(c)(2) and
36.105(c)(2), and 35.108(d)(1) and 36.105(d)(1).
Revised or added several provisions to more closely
conform to the EEOC regulation.

II. Summary of Regulatory Assessment

As noted above, Congress enacted the ADA Amendments Act in 2008 to
ensure that persons with disabilities who were denied coverage
previously under the ADA would again be able to rely on the protections
of the ADA. 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.
This rule incorporates into the Department's titles II and III
regulations the changes made by the ADA Amendments Act. In accordance
with OMB Circular A-4, the Department estimates the costs and benefits
of this proposed rule using a pre-ADA Amendments Act baseline. Thus,
the effects that are estimated in this analysis are due to statutory
mandates that are not under the Department's discretion. The Department
has determined that the costs of this rule do not reach $100 million in
any single year, and thus it is not an economically significant rule.
In the Initial Regulatory Assessment (Initial RA), the analysis
focused on estimating costs for processing and providing reasonable
modifications and testing accommodations \2\ to individuals with
learning disabilities and ADHD \3\ for extra time on exams as a direct
result of the ADA Amendments Act. 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. 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.
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\2\ For ease of reference for purposes of the discussion of
costs in the Regulatory Assessment, the Department will use the term
``accommodations'' to reference the provision of extra time, whether
it is requested as a reasonable modification pursuant to 28 CFR
35.130(b)(7) and 28 CFR 36.302, or as a testing accommodation
(modifications, accommodations, or auxiliary aids and services)
provided pursuant to 42 U.S.C. 12189 and 28 CFR 36.309. The
Department wishes to preserve the legal distinction between these
two terms in its guidance on the requirements of the ADA Amendments
Act so it will use both terms where appropriate in the Section by
Section Analysis and Guidance.
\3\ The Department is using the term ADHD in the same manner as
it is currently used in the Diagnostic and Statistical Manual of
Mental Disorders: Fifth Edition (DSM-5), to refer to three different
presentations of symptoms: predominantly inattentive (which was
previously known as ``attention deficit disorder); predominantly
hyperactive or impulsive; or a combined presentation of inattention
and hyperactivity-impulsivity. The DSM-5 is the most recent edition
of a widely-used manual designed to assist clinicians and
researchers in assessing mental disorders. See Diagnostic and
Statistical Manual of Mental Disorders: Fifth Edition DSM-5,
American Psychiatric Association, at 59-66 (2013).
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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:
One-time cost of training staff on relevant impact of ADA
Amendments Act;
Annual cost of processing additional accommodation
requests for extra exam time made as a direct result of the ADA
Amendments Act; and
Annual cost of proctoring additional time on exams as a
direct result of the ADA. Amendments Act.
Based on the Department's calculations, total costs to society for
implementing the revisions to the ADA Amendments Act range from $31.4
million to $47.1 million in the first year. The first year of costs
will be higher than all subsequent years because the first year
includes the one-time costs of

[[Page 53206]]

training. Note that even the high end of this first-year cost range is
well within the $100 million mark that signifies an ``economically
significant'' regulation. The breakdown of total costs by entity is
provided in the table below.

Total Costs First Year (2016), Primary Analysis
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Cost category Low value Med value High value
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Postsecondary Institutions: ANNUAL Total Costs of Processing $12.8 $18.0 $23.1
Additional Requests and Proctoring Extra Exam Time.............
Postsecondary Institutions: ONE-TIME Cost for Additional 9.9 9.9 9.9
Training at Institutions.......................................
National Exams: ANNUAL Total Costs of Processing Additional 6.8 9.5 12.2
Requests and Proctoring Extra Exam Time........................
National Exams: ONE-TIME Cost for Additional Training at 1.9 1.9 1.9
Institutions...................................................
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Total....................................................... 31.4 39.3 47.1
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Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Taking these costs over the next 10 years and discounting to
present value terms at a rate of 7 percent, the total costs of
implementing this final rule are approximately $214.2 million over 10
years, as shown in the table below.

Total Costs Over 10 Years, Primary Analysis
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Annualized
Total discounted value ($ millions) estimate ($ Year dollar Discount rate Period
millions) (percent) covered
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$214.2.......................................... $28.6 2015 7 2016-2025
243.6........................................... 26.3 2015 3 2016-2025
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III. Background

The ADA Amendments Act was signed into law by President George W.
Bush on September 25, 2008, with a statutory effective date of January
1, 2009. Public Law 110-325, sec. 8. As with other civil rights laws,
individuals seeking protection in court under the anti-discrimination
provisions of the ADA generally must allege and prove that they are
members of the ``protected class.'' Under the ADA, this typically means
they have to show that they meet the statutory definition of being an
``individual with a disability.'' See 154 Cong. Rec. S8840-44 (daily
ed. Sept. 16, 2008) (Statement of the Managers); see also H.R. Rep. No.
110-730, pt. 2, at 6 (2008) (House Committee on the Judiciary).
Congress did not intend, however, for the threshold question of
disability to be used as a means of excluding individuals from
coverage. H.R. Rep. No. 110-730, pt. 2, at 5 (2008).
In the original ADA, Congress defined ``disability'' as (1) a
physical or mental impairment that substantially limits one or more
major life activities of an individual; (2) a record of such an
impairment; or (3) being regarded as having such an impairment. 42
U.S.C. 12202(1). Congress patterned this three-part definition of
``disability''--the ``actual,'' ``record of,'' and ``regarded as''
prongs--after the definition of ``handicap'' found in the
Rehabilitation Act of 1973. See H.R. Rep. No. 110-730, pt. 2, at 6
(2008). By doing so, Congress intended that the relevant case law
developed under the Rehabilitation Act would be generally applicable to
the term ``disability'' as used in the ADA. H.R. Rep. No. 101-485, pt.
3, at 27 (1990); see also S. Rep. No. 101-116, at 21 (1989); H.R. Rep.
No. 101-485, pt. 2, at 50 (1990). Congress expected that the definition
of ``disability'' and related terms, such as ``substantially limits''
and ``major life activity,'' would be interpreted under the ADA
``consistently with how courts had applied the definition of a
handicapped individual under the Rehabilitation Act''--i.e.,
expansively and in favor of broad coverage. Public Law 110-325, sec.
2(a)(1)-(8) and (b)(1)-(6); see also 154 Cong. Rec. S8840 (daily ed.
Sept. 16, 2008) (Statement of the Managers) (``When Congress passed the
ADA in 1990, it adopted the functional definition of disability from .
. . Section 504 of the Rehabilitation Act of 1973, 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.''); H.R. Rep. No. 110-
730, pt. 2, at 6 & n.6 (2008) (noting that courts had interpreted the
Rehabilitation Act definition ``broadly to include persons with a wide
range of physical and mental impairments'').
That expectation was not fulfilled. Public Law 110-325, sec.
2(a)(3). 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. Id. sec. 2(a)(4)-(7). For example, in Sutton v.
United Air Lines, Inc., 527 U.S. 471, 482 (1999), the Court ruled that
whether an impairment substantially limits a major life activity is to
be determined with reference to the ameliorative effects of mitigating
measures. In Sutton, the Court also adopted a restrictive reading of
the meaning of being ``regarded as'' disabled under the ADA's
definition of ``disability.'' Id. at 489-94. Subsequently, in Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002),
the Court held that the terms ``substantially'' and ``major'' in the
definition of ``disability'' ``need to be interpreted strictly to
create a demanding standard for qualifying as disabled'' under the ADA,
id. at 197, and that to be substantially limited in performing a major
life activity under the ADA, ``an individual must have an impairment
that prevents or severely restricts the individual from doing
activities that are of central importance to most people's daily
lives.'' Id. at 198.
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

[[Page 53207]]

disabilities, and thus not protected by the ADA. See 154 Cong. Rec.
S8840 (daily ed. Sept. 16, 2008) (Statement of the Managers) (``After
the Court's decisions in Sutton that impairments must be considered in
their mitigated state and in Toyota that there must be a demanding
standard for qualifying as disabled, lower courts more often found that
an individual's impairment did not constitute a disability. 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. Id. at S8840-41 (``Thus,
some 18 years later we are faced with a situation in which physical or
mental impairments that would previously have been found to constitute
disabilities are not considered disabilities under the Supreme Court's
narrower standard'' and ``[t]he resulting court decisions contribute to
a legal environment in which individuals must demonstrate an
inappropriately high degree of functional limitation in order to be
protected from discrimination under the ADA.'').
Consequently, Congress amended the ADA with the Americans with
Disabilities Act Amendments Act of 2008. 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. See 154 Cong. Rec. H8294-96 (daily ed. Sept. 17, 2008)
(joint statement of Reps. Steny Hoyer and Jim Sensenbrenner); see also
154 Cong. Rec. S8840-44 (daily ed. Sept. 16, 2008) (Statement of the
Managers).
The ADA Amendments Act modified the ADA by adding a new ``findings
and purposes'' section focusing exclusively on the restoration of
Congress's intent in the ADA to broadly interpret the term
``disability'' to ensure expansive coverage. 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. The ``purposes'' provisions specifically
address the Supreme Court decisions that narrowed the interpretation of
the term ``disability,'' rejecting the Toyota strict interpretation of
the terms ``major'' and ``substantially;'' the Sutton requirement that
ameliorative mitigating measures must be considered when evaluating
whether an impairment substantially limits a major life activity; and
the narrowing of the third, ``regarded as'' prong of the definition of
``disability'' in Sutton and School Board of Nassau County v. Arline,
480 U.S. 273 (1987). In addition, the ADA Amendments Act specifically
rejects the EEOC's interpretation of ``substantially limited'' as
meaning ``significantly restricted,'' noting that it is too demanding
of a standard. See Public Law 110-325 sec. 2(b).
The findings and purposes section of the ADA Amendments Act ``gives
clear guidance to the courts and . . . [is] intend[ed] to be applied
appropriately and consistently.'' 154 Cong. Rec. S8841 (daily ed. Sept.
16, 2008) (Statement of the Managers). The Department has amended its
regulations to reflect the ADA Amendments Act, including its findings
and purposes.

IV. Summary of the ADA Amendments Act of 2008

The ADA Amendments Act restores the broad application of the ADA by
revising the ADA's ``Findings and Purposes'' section, expanding the
statutory language regarding the meaning and interpretation of the
definition of ``disability,'' providing specific rules of construction
for interpreting that definition, and expressly superseding the
standards enunciated by the Supreme Court in Sutton and Toyota and
their progeny.
First, the ADA Amendments Act deletes two findings that were in the
ADA: (1) That ``some 43,000,000 Americans have one or more physical or
mental disabilities,'' and (2) that ``individuals with disabilities are
a discrete and insular minority.'' 154 Cong. Rec. S8840 (daily ed.
Sept. 16, 2008) (Statement of the Managers); see also Public Law 110-
325, sec. 3. As explained in the 2008 Senate Statement of the Managers,
``[t]he [Supreme] Court treated these findings as limitations on how it
construed other provisions of the ADA. 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. Deleting these findings removes this
barrier to construing and applying the definition of disability more
generously.'' 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008)
(Statement of the Managers).
Second, the ADA as amended clarifies Congress's intent that the
definition of ``disability'' ``shall be construed in favor of broad
coverage of individuals under this chapter, to the maximum extent
permitted by the terms of this chapter.'' 42 U.S.C. 12102(4)(A).
Third, the ADA as amended provides an expanded definition of what
may constitute a ``major life activity,'' within the meaning of the
ADA. 42 U.S.C. 12102(2). 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. Id.
Fourth, although the amended statute retains the term
``substantially limits'' from the original ADA definition, Congress set
forth rules of construction applicable to the meaning of substantially
limited that make clear that the term must be interpreted far more
broadly than in Toyota. 42 U.S.C. 12102(4); see also Public Law 110-
325, sec. 2(b)(5). Congress was specifically concerned that lower
courts had applied Toyota in a way that ``created an inappropriately
high level of limitation necessary to obtain coverage under the ADA.''
Public Law 110-325, sec. 2(b)(5). Congress sought to convey that ``the
primary object of attention in cases brought under the ADA should be
whether entities covered under the ADA have complied with their
obligations, and to convey that the question of whether an individual's
impairment is a disability under the ADA should not demand extensive
analysis.'' Id.
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. 42 U.S.C.
12102(4)(E)(i). 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. Public Law 110-325, sec. 2(b)(2). 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. 42 U.S.C. 12102(4)(D).
Sixth, the ADA as amended makes clear that, despite confusion on
the subject in some court decisions, the ``regarded as'' prong of the
disability definition does not require the individual to demonstrate
that he or she has, or is perceived to have, an impairment that
substantially limits a major life activity. 42 U.S.C. 12102(3). 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

[[Page 53208]]

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.
42 U.S.C. 12201(h).
Finally, the ADA as amended gives the Attorney General explicit
authority to issue regulations implementing the definition of
``disability.'' 42 U.S.C. 12205a.

V. Background on This Rulemaking and Public Comments Received

The Department published its Notice of Proposed Rulemaking (NPRM)
proposing to amend its title II and title III ADA regulations in the
Federal Register on January 30, 2014. 79 FR 4839 (Jan. 30, 2014). The
comment period closed on March 31, 2014. 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. These
commenters asserted that the Department's discussion of the potential
costs for testing entities or educational entities of complying with
the ADA Amendments Act and this rule could be misunderstood to mean
that the Department believed the changes in the definition of
``disability'' did not have an impact on individuals with other types
of disabilities.
As discussed in the regulatory assessment, the Department believes
that persons with all types of impairments, including, but not limited
to, those enumerated in Sec. Sec. 35.108(b) and 36.105(b), will
benefit from the ability to establish coverage under the ADA as
amended, and will therefore be able to challenge the denial of access
to goods, services, programs, or benefits based on the existence of a
disability. 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. 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.

VI. Relationship of This Regulation to Revisions to the Equal
Employment Opportunity Commission's ADA Title I Regulation Implementing
the ADA Amendments Act of 2008

The EEOC is responsible for regulations implementing title I of the
ADA addressing employment discrimination based on disability. On March
25, 2011, the EEOC published its final rule revising its title I
regulation to implement the revisions to the ADA contained in the ADA
Amendments Act. 76 FR 16978 (Mar. 25, 2011).\4\
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\4\ On September 23, 2009, the EEOC published its NPRM in the
Federal Register proposing revisions to the title I definition of
``disability.'' See 74 FR 48431. The EEOC received and reviewed more
than 600 public comments in response to its NRPM. In addition, the
EEOC and the Department held four joint ``Town Hall Listening
Sessions'' throughout the United States and heard testimony from
more than 60 individuals and representatives of the business/
employer industry and the disability advocacy community.
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Because the ADA's definition of ``disability'' applies to title I
as well as titles II and III of the ADA, the Department has made every
effort to ensure that its proposed revisions to the title II and III
regulations are consistent with the provisions of the EEOC final rule.
Consistency among the title I, title II, and title III rules will
promote consistent application of the requirements of the ADA
Amendments Act, regardless of the Federal agency responsible for
enforcement or the ADA title that is enforced. Further, because most
entities subject to either title II or title III are also subject to
title I with respect to employment, they should already be familiar
with the revisions to the definition of ``disability'' in the 4-year-
old EEOC revised regulation. 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.

VII. Regulatory Process Matters

A. Executive Order 13563 and 12866--Regulatory Planning and Review

This final rule has been drafted in accordance with Executive Order
13563 of January 18, 2011, 76 FR 3821, Improving Regulation and
Regulatory Review, and Executive Order 12866 of September 30, 1993, 58
FR 51735, Regulatory Planning and Review. Executive Order 13563 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 13563 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.
The Department has determined that this rule is a ``significant
regulatory action'' as defined by Executive Order 12866, section 3(f).
The Department has determined, however, that this rule is not an
economically significant regulatory action, as it will not have an
annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities. This
rule has been reviewed by the Office of Management and Budget (OMB)
pursuant to Executive Orders 12866 and 13563.
Purpose and Need for Rule and Scope of Final Regulatory Assessment
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. The ADA Amendments Act, which took effect on
January 1, 2009, was enacted in response to earlier Supreme Court
decisions that significantly narrowed the application of the definition
of ``disability'' under the ADA. See Sutton v. United Air

[[Page 53209]]

Lines, Inc., 527 U.S. 471 (1999); Toyota Motor Mfg., Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002). The ADA Amendments Act clarifies the
proper interpretation of the term ``disability'' in the ADA and
fulfills congressional intent to restore the broad scope of the ADA by
making it easier for individuals to establish that they have a
disability within the meaning of the statute. See Public Law 110-325,
sec. 2(a)(3)-(7). The Act authorizes the Attorney General to issue
regulations under title II and title III of the ADA to implement
sections 3 and 4 of the Act, including the rules of construction
presented in section 3. 42 U.S.C. 12205a. The Department is making
several revisions to the title II and title III ADA regulations that
are based on specific provisions in the ADA Amendments Act.
The Department notes that the Supreme Court cases limiting the
application of the definition of ``disability'' had the most
significant impact on individuals asserting coverage under title I of
the ADA with respect to employment. 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.g., S. 154 Cong. Rec. S8840-44 (daily ed.
Sept. 16, 2008) (Statement of the Managers). With respect to titles II
and III, while the statutory amendments required by the ADA Amendments
Act affect persons with all types of disabilities and across all titles
of the ADA, Congress anticipated that the ADA Amendments Act's expanded
definition would especially impact persons with learning disabilities
who assert ADA rights in education and testing situations. See H.R.
Rep. No. 110-730, pt. 1, at 10-11 (2008); see also 154 Cong. Rec. S8842
(daily ed. Sept. 16, 2008). Congress was concerned about the number of
individuals with learning disabilities who were denied reasonable
modifications or testing accommodations (e.g., extra exam time) because
covered entities claimed these individuals did not have disabilities
covered by the ADA.
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.\5\ The Department is aware
that the accommodation of those individuals might entail some economic
costs; however, it appears that in light of the legislative history and
the experience of the Department in resolving ADA claims from 1990 to
the present, 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. 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 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.
---------------------------------------------------------------------------

\5\ A number of commenters on the NPRM expressed concern that
the Department's focus on the economic impact of the ADA Amendments
Act with respect to individuals with learning disabilities and in
the area of education and testing might lead the public to think
that the Department did not believe the ADA Amendments Act would
benefit persons with other disabilities or in the full range of
situations and contexts covered by titles II and III of the ADA.
---------------------------------------------------------------------------

Public Comments on Regulatory Assessment and Department Responses
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.
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.
General and Recurring Concerns Expressed in Comments
Many commenters expressed appreciation for the proposed regulation,
with several noting that the regulation would offer qualitative and
quantitative benefits. Some of the quantitative benefits noted by
commenters were a reduction in litigation costs as well as access to
educational opportunities for persons with disabilities that would
enhance employment prospects, productivity, and future earnings and
investments. Qualitative benefits referenced in the comments included
enhanced personal self-worth and dignity, as well as the values of
equity, fairness, and full participation. Other commenters expressed
concern about costs associated with implementation of the regulation.
The Department reviewed a number of comments suggesting that it
underestimated the costs that postsecondary schools or national testing
entities will incur to comply with the ADA Amendments Act. Commenters
stated that the ADA Amendments Act will lead to a significant increase
in the number of students seeking accommodations from postsecondary
schools, which will lead to substantially increased direct costs (e.g.,
the costs of providing additional exam time and other accommodations to
students with disabilities) and indirect costs (e.g., the costs of
processing these requests, complaints to the Office for Civil Rights at
the U.S. Department of Education, and lawsuits). Commenters further
stated that the Department overlooked the costs that postsecondary
schools will incur in providing accommodations other than additional
exam time, such as tutors, note takers, auxiliary aids, e-books, etc.
These commenters suggested that postsecondary schools will need to hire
additional staff to manage the additional administrative burden that
the ADA Amendments Act imposes.
Those comments and as well as other related comments, are
specifically addressed below. But, as a threshold matter, the
Department believes that the concerns predicated on the assumption of a
significant rise in students seeking accommodations due to changes
brought about by the ADA Amendments Act are overstated. One of the
primary purposes of the ADA Amendments Act was to restore ADA coverage
to a subset of individuals with disabilities who lost ADA protection as
a result of a series of

[[Page 53210]]

Supreme Court decisions dating back to 1999.
While the Department recognizes that there has been an increase in
the number of students with disabilities requesting accommodations at
postsecondary institutions, much of this increase is likely not
attributable to the passage of the ADA Amendments Act. Commenters and
existing data suggest that, for the most part, increases in the number
of students with disabilities attending college and seeking
accommodations are likely related to the following factors:
There are more diagnoses of disabilities in children
overall since 1997; \6\
---------------------------------------------------------------------------

\6\ Coleen A. Boyle, et al., Trends in the Prevalence of
Developmental Disabilities in US Children, 1997-2008, 127 Pediatrics
1034 (2011), available at http://pediatrics.aappublications.org/content/pediatrics/early/2011/05/19/peds.2010-2989.full.pdf (last
visited April 22, 2016); see also Matt Krupnick, Colleges respond to
growing ranks of learning disabled, The Hechinger Report (Feb. 13,
2014), available at http://hechingerreport.org/colleges-respond-to-growing-ranks-of-learning-disabled/ (last visited Feb. 3, 2016).
---------------------------------------------------------------------------

More students are attending college generally; \7\
---------------------------------------------------------------------------

\7\ U.S. Department of Education, National Center for Education
Statistics, Fast Facts: Enrollment, available at http://nces.ed.gov/fastfacts/display.asp?id=98 (last visited Feb. 3, 2016).
---------------------------------------------------------------------------

Other laws such as the Individuals with Disabilities
Education Act (IDEA) and section 504 are causing students with
disabilities to be identified more widely and at a younger age; \8\
---------------------------------------------------------------------------

\8\ See Stephen B. Thomas, College Students and Disability Law,
33 J. Special Ed. 248 (2000), available at http://www.ldonline.org/article/6082/ (last visited Apr. 22, 2016).
---------------------------------------------------------------------------

The stigma of identifying as a person with a disability
appears to have diminished since the passage of the ADA in 1990;
Diagnoses of autism spectrum disorders among children have
increased significantly since 1997, perhaps as a result of improved
diagnostic tools and protocols; \9\ and
---------------------------------------------------------------------------

\9\ Centers for Disease Control and Prevention, Prevalence of
Autism Spectrum Disorder Among Children Aged 8 Years--Autism and
Developmental Disabilities Monitoring Network, 11 Sites, United
States, 2010, MMWR 2014; 63 (SS-02), available at http://www.cdc.gov/mmwr/pdf/ss/ss6302.pdf (last visited April 22, 2016).
---------------------------------------------------------------------------

Postsecondary schools have improved their ability to
accommodate students with disabilities, thus encouraging more students
to seek such accommodations, and empowering students with disabilities
to enroll in college and remain enrolled there.\10\
---------------------------------------------------------------------------

\10\ See Justin Pope, Students with Autism, Other Disabilities
Have More College Options Than Ever Before, Huff Post Impact,
available at http://www.huffingtonpost.com/2013/09/16/autism-college-options_n_3934583.html (Sept. 16, 2013) (last visited Feb.
3, 2016).
---------------------------------------------------------------------------

Most of the students affected by the ADA Amendments Act are
students whose impairments did not clearly meet the definition of
``disability'' under the ADA after the series of Supreme Court
decisions beginning in 1999 reduced the scope of that coverage. For
instance, under the narrowed scope of coverage, some individuals with
learning disabilities or ADHD may have been denied accommodations or
failed to request them in the belief that such requests would be
denied. As a result, the most likely impact of the ADA Amendments Act
is seen in the number of students with disabilities eligible to request
and receive accommodations in testing situations. There are different
types of accommodations requested in testing situations, but requests
for additional exam time appear to be the type of accommodation most
likely to have a significant, measurable cost impact. Other types of
accommodations requested in testing situations are expected to incur
few to no additional costs as a result of the ADA Amendments Act and
this rule. For instance, requests for accommodations such as the use of
assistive technology or the need for alternative text formats were the
types of accommodations that would have been granted prior to the
passage of the ADA Amendments Act because students with sensory
disabilities needing these types of accommodations would have been
covered by the ADA even under the narrower scope of coverage arising
from the application of the Supreme Court's decisions in Toyota and
Sutton. As a result, those types of accommodations cannot be directly
attributed to the ADA Amendments Act. In addition, other types of
accommodations such as adjustments to the testing environment (e.g.,
preferential seating or alternative locations) or the ability to have
snacks or drinks would result in minimal or no costs. Therefore, the
Department's examination of the costs of this rule is confined to those
accommodations that individuals at postsecondary institutions or taking
national examinations are most likely to request as a result of the ADA
Amendments Act and that are most likely to incur measurable costs--
extra time on tests and examinations.
One commenter, however, asserted that costs should be estimated for
entities other than postsecondary institutions and testing entities,
such as elementary and secondary schools, courthouses, etc. Certain
concerns related to elementary and secondary schools are addressed
below, but the Department found no direct evidence to indicate that
institutions other than postsecondary institutions and testing entities
will incur any significant economic impact as a result of accommodating
individuals now covered under the ADA after passage of the ADA
Amendments Act. Even after conducting further research, the Department
was unable to identify any accommodations that would result in
compliance costs that could be specifically attributable to the ADA
Amendments Act other than those identified and measured in this
analysis--i.e., accommodations for extra time on exams. While the
Department anticipates that other individuals with disabilities will
benefit from the ADA Amendments Act, no specific subsets of individuals
with disabilities or specific accommodations were identified.
Accordingly, it appears that the economic impact of ADA Amendments Act
compliance for entities other than postsecondary schools and testing
entities will not significantly affect the overall economic impact of
the rule, and thus those costs are not analyzed here.
One commenter cited the 2013-2014 Institutional Disability Access
Management Strategic Plan at Cornell University \11\ as an example of
the kind of careful planning done by postsecondary institutions to
address the needs of students with disabilities as a basis for
determining that the costs of implementing the ADA Amendments Act will
be very high. This document focuses almost exclusively on initiatives
taken in furtherance of ADA compliance generally, rather than
compliance with the ADA Amendments Act specifically. Further, this
document discloses that Cornell University annually updates its plans
and policies toward individuals with disabilities. Nothing in this
document indicates that Cornell University is absorbing high costs as a
result of such ongoing updates, or that the ADA Amendments Act has
presented Cornell University with an unusually high burden, over and
above the ordinary obligations that the ADA itself imposes. It is true
that this document reflects careful, comprehensive, and possibly costly
planning on the behalf of students with disabilities, but the expense
inherent in such planning is attributable to the overall requirements
of the ADA itself, rather than the implementation of the ADA Amendments
Act.
---------------------------------------------------------------------------

\11\ Cornell University--Disability Information, Institutional
Disability Access Management Strategic Plan for Cornell University,
July 1, 2013-June 30, 2014, available at http://disability.cornell.edu/docs/2013-2014-disability-strategic-plan.pdf
(last visited Feb. 3, 2016).

---------------------------------------------------------------------------

[[Page 53211]]

Comments Regarding the ADA and Related Laws
Many of the commenters' points regarding increased costs appear to
apply to concerns about the costs of complying with the ADA generally
and not to costs related to expanded coverage due to the ADA Amendments
Act. It is true that in some cases the costs of accommodating some
students with more severe mobility and sensory disabilities could be
significant, but these students were clearly covered even under the
restrictive standards set forth by Sutton and Toyota, and accordingly,
such costs cannot be attributed to the implementation of the ADA
Amendments Act. One commenter expressed a concern that there has been
an increase in requests for ``exotic or untrained animals as service or
emotional support animals'' in student housing provided by
postsecondary institutions. The Department notes that neither ``exotic
animals'' nor ``emotional support animals'' qualify as service animals
under the existing regulations implementing titles II and III of the
ADA and thus, any costs related to allowing such animals are not due to
the application of the requirements of this rule.\12\ And, similar to
the observation noted above, the vast majority of students who use
service animals as defined under the ADA have disabilities that would
have been covered prior to passage of the ADA Amendments Act, even
under the Supreme Court's more narrow application of the definition of
``disability.'' So, although such costs may be measurable, they cannot
fairly be attributed to the implementation of the ADA Amendments Act.
---------------------------------------------------------------------------

\12\ As in other types of housing environments, students who
wish to have emotional support animals in housing provided by their
place of education may make those requests under the Fair Housing
Act, 42 U.S.C. 3601 et seq., and not the ADA.
---------------------------------------------------------------------------

Comments Regarding the Costs for the Adjustment of Existing Policies
The Department acknowledges that postsecondary schools and national
testing entities will incur some costs to update their written policies
and training procedures to ensure that the definition of ``disability''
is interpreted in accordance with the requirements of the ADA
Amendments Act, but has found no evidence to indicate that such costs
would be high. The Department also notes that even prior to passage of
the ADA Amendments Act, many postsecondary schools had policies in
place that were broader and more comprehensive than would have been
required under the more restrictive coverage set forth in Sutton and
Toyota. As a result, their policies and procedures may require few, if
any, updates to conform to the ADA Amendments Act and the revised
regulations. The Department has found no evidence to suggest that the
changes required by the ADA Amendments Act have placed or will place a
significant burden upon the ongoing processes of evaluating and
updating policies that already exist at postsecondary schools or with
national testing entities. Nevertheless, the Department has attempted
in this Final RA to quantify the cost of training staff members and
updating policies as a result of the changes that the ADA Amendments
Act final rule may require.
Some commenters argued that the Department's estimate of a one-time
cost of $500 per institution to change policies and procedures in
compliance with the ADA Amendments Act was too low. Instead, one
commenter proposed an estimated one-time cost of $2,500 per
institution, and another commenter suggested an estimated one-time cost
of $5,000 per institution for the first year's training costs. The
underlying data and methodology to support these estimates were not
provided by these commenters.
The Department has found no data to substantiate the claims that
the cost of changing existing policies and training procedures to
comply with the ADA Amendments Act will be $2,500 or $5,000 per
institution. The commenters proposing those costs did not provide any
detailed evidence or arguments in support of such costs, and the
Department's research found no evidence to indicate that any
institutions have incurred training or policy revision costs of that
magnitude since the ADA Amendments Act became effective in 2009. The
commenter suggesting a $5,000 cost cites to one institution's
disability access plan to suggest some of the types of costs that might
be incurred. The referenced document, however, does not provide
specific dollar figures and is not ADA Amendments Act specific.
Therefore, the Department does not believe that the commenter's
projected cost increases are correct because, as discussed above, the
programmatic concerns identified in this document pertained to ADA
compliance as a whole, but not with changes to the ADA created by the
ADA Amendments Act specifically. The Department acknowledges that the
absence of evidence of such costs, however, is not necessarily
conclusive that some costs do not or will not exist. Nevertheless, the
Department believes that, had postsecondary schools incurred $2,500 to
$5,000 in such compliance costs since 2009 or if they expected to incur
such costs going forward, some indicia of these costs would be readily
apparent.
Because no relevant supporting information regarding the
commenters' estimates was provided, the Department conducted additional
independent research and interviewed representatives at two
postsecondary institutions to determine whether any additional formal
or informal training had been needed to understand the implications of
the ADA Amendments Act (and make adjustments to existing policies and
procedures to conform to the Act's requirements). One of those two
institutions stated that no additional training had been needed. The
second institution said that additional training had been provided
during meetings with staff. Approximately two hours per staff member
(i.e., two hours per meeting) had been dedicated to this training.
Approximately two part-time staff and six graduate students (working
part time) received this training. In addition, the staff member
providing the training had to attend a one-day conference to receive
the information to pass along to the other staff. The Department
conducted research to determine the costs of attending such a
conference and receiving training on the changes to the law resulting
from the ADA Amendments Act. Based on this independent research and
feedback from representatives of two postsecondary institutions, the
Department increased its estimate for one-time training costs from
approximately $500 to $1,371 (see below for greater details on how the
$1,371 was derived).
Comments Regarding the Costs of Additional Staff Time for the
Administration of the Rule
Some commenters argued that the rule will lead to a significant
increase in postsecondary institution accessibility support staff time
devoted to disability accommodation issues, perhaps even requiring
postsecondary institutions to hire additional personnel. One commenter
representing higher educational institutions estimated that each
affected institution would be required to hire one new full-time staff
member, at $40,000 per year, to address increased student requests.
This commenter cited a study that indicated that the mean number of
staff who assist students with disabilities is four per campus. The
Department questions the commenter's estimate that each affected
institution would have to increase their

[[Page 53212]]

staff by one full-time staff person, or approximately 25 percent of the
mean entire staff, to address the incremental changes created by the
ADA Amendments Act. The general increase in accommodation requests is
likely attributable to a number of other factors not related to the ADA
Amendments Act, including higher enrollment of students with
disabilities. While there will likely be an incremental increase in the
number of testing accommodations requested and granted as a direct
result of the ADA Amendments Act, this incremental increase is unlikely
to be the driving factor for hiring additional staff.
Similarly, some commenters argued that the Department needed to
incorporate estimates of the additional administrative time needed to
review and administer additional requests for testing accommodations
for both postsecondary and national testing entities. To address these
concerns, the Department contacted several universities and testing
entities, but received responses from only one school and one testing
entity, and those responses were inconclusive. The postsecondary school
said that there has been no noticeable increase in applications for
accommodations since the passage of the ADA Amendments Act, but the
testing entity stated that it has detected a large increase in requests
for additional testing time since the passage of the ADA Amendments
Act. In light of the uncertainty regarding any potential additional
staff time needed to review additional requests for accommodations, the
Department has made several assumptions based on research and
discussions with subject matter experts and impacted entities so as to
incorporate estimated costs for this item. This information is
presented further below.
Comments Regarding the Costs of Additional Disputes
Some commenters argued that the ADA Amendments Act would lead to
increased litigation and internal disputes against institutions, as the
scope of potential litigants would expand due to the increase in
individuals covered by the ADA as a result of the passage of the ADA
Amendments Act. Other commenters disagreed, stating that the new
regulation would reduce the volume of complaints and litigation and
streamline outstanding complaints and litigation due to increased
consistency and predictability in judicial interpretation and executive
enforcement. The Department does not agree with the commenters who
asserted that the impact of the ADA Amendments Act will lead to an
increase in litigation and disputes. The ADA Amendments Act clarified
several contentious or uncertain aspects of the ADA, and thus may have
decreased the overall amount of ADA litigation by reducing ambiguities
in the law. However, assessing the impact of covered entities' failures
to comply (or alleged failures to comply) with the requirements of the
ADA, as amended, and the legal challenges that may result from
compliance failures, are not properly within the ambit of the Final RA,
nor do we have any relevant information that would assist in an
analysis of such issues even if it they were appropriate to include in
the Final RA.
Comments Regarding the Computation of Costs for Additional Examinations
and Testing
One commenter stated that the Department placed too much emphasis
on the cost of proctor supervision when assessing the cost of extra
exam time in postsecondary institutions. The commenter posited that
many tests are administered electronically; accordingly, the costs of
those tests are appropriately based on the cost of ``seat time'' and
not the cost of proctor supervision. Unfortunately, no commenter
provided a description of what the additional costs per student might
be in such circumstances, nor did any commenter explain how such costs
could be computed. The Department contacted several postsecondary
institutions and testing entities for approximations of seat time
costs, but did not receive any relevant information.
Two commenters noted that for some long national examinations,
additional testing time would necessitate the provision of an
additional testing day that would increase costs substantially. This
potential cost was not estimated in the Initial RA because research
indicated that prior to the passage of the ADA Amendments Act, national
examination institutions were already accommodating individuals who
required additional time because of disabilities already explicitly
covered by the ADA. As a result, testing entities were already
providing an additional testing day where necessary. Therefore, any
individuals who would now request additional time on national exams
lasting six hours or more as a direct result of the ADA Amendments Act
would be accommodated alongside those individuals who would have been
covered prior to the ADA Amendments Act, and any potential costs would
likely be minimal. Despite this conclusion, the Department has
nonetheless conducted a sensitivity analysis to assess these potential
costs with the assumption that testing entities were not already
providing an additional testing day to accommodate certain individuals
with disabilities. Because an additional testing day for these
examinations was likely already provided prior to passage of the ADA
Amendments Act, the Department continues to believe that the costs of
accommodating any additional students who are now seeking additional
exam time as a direct result of the ADA Amendments Act will be minimal.
As a result, the sensitivity analysis the Department has conducted
likely overestimates these potential costs. Further information on the
potential range of these costs can be found below.
Comments Regarding the Estimate of ADHD Prevalence Among Postsecondary
Students
Several commenters questioned the Department's approach of reducing
the portion of students with ADHD who would be impacted by the ADA
Amendments Act. In the Initial RA, the Department had assumed based on
some available research that 30 percent of those who self-identify as
having ADHD as their primary disability would not need additional
testing time because they would not meet the clinical definition of the
disability. One commenter raised concern about presenting a specific
percentage of students with ADHD who would not meet that clinical
definition, because that number might inadvertently become a benchmark
for postsecondary institutions and national testing entities to deny
accommodations to a similar percentage of applicants requesting
additional exam time because of their ADHD. The Department did not
intend for this percentage to establish a benchmark. Covered entities
should continue to evaluate requests for additional exam time by all
individuals with disabilities on an individualized basis. In direct
response to these concerns, the Department has decided not to reduce
the number of individuals with ADHD who could now receive testing
accommodations as a direct result of the ADA Amendments Act.
Comments Regarding the Economic Impact of the Rule on Industries
A commenter representing institutions of higher education stated
that the rule would have a significant impact on higher education as an
industry, such that the rule should be considered ``economically
significant.'' For the reasons indicated throughout

[[Page 53213]]

the Final RA, however, the Department does not believe that this
commenter's points were persuasive. Based on the Department's own
research and evaluation, it is convinced that the cost of ADA
Amendments Act compliance will be far less than $100 million dollars in
any given year.
The commenter stated that the Department erred in its analysis by
focusing primarily on college students with learning disabilities or
ADHD and did not factor in potential costs related to students with
other impairments including depression, schizophrenia, obsessive
compulsive disorder, traumatic brain injuries, post-traumatic stress
disorder, visual impairments not rising to the level of blindness,
anxiety, autism, food allergies, or transitory impairments. Prior to
passage of the ADA Amendments Act, higher educational institutions
already were incurring costs to accommodate students with the above-
referenced impairments that constituted disabilities. These costs are
not attributable to this rulemaking and thus not analyzed as such. For
the relatively small number of students with the above-referenced
disabilities who might not have been covered prior to the passage of
the ADA Amendments Act, the Department was unable to specifically
identify or measure any potential costs that postsecondary institutions
would incur in accommodating these students.
The commenter also stated that the Department's Initial RA should
have considered the costs of academic accommodations other than
extended testing time, such as ``note takers, tutors, technology-based
auxiliary aids, electronic versions of text-books and class materials,
and other accommodations and aids,'' as well as ``significant costs
resulting from accommodation requests outside the classroom context,
such as those involving residence halls, food services or athletics.''
The Department notes that, as with reasonable modifications and testing
accommodations required prior to the ADA Amendments Act, the
accommodations or auxiliary aids or services described by the commenter
were being provided before the passage of the ADA Amendments Act and
will not entail new costs specifically attributable to the ADA
Amendments Act.
Comments Regarding ADA/IDEA Concerns
Several commenters addressed the possibility that the expanded
definition of ``disability'' could result in more cases arising under
the ADA, rather than under the IDEA, in elementary and secondary
schools. An association focusing on children with learning disabilities
noted that students who manage their disabilities well often find that
school districts challenge their IDEA claims of disability, but that
such claims may meet with more success under the ADA or section 504 of
the Rehabilitation Act. One commenter, whose comments were endorsed by
several other groups, noted that particular subsets of children may be
eligible for benefits under the ADA but not under the IDEA. These
include students with episodic conditions, mitigated conditions, and
conditions such as diabetes and seizure impairments that may require
maintenance support, such as diet or medications. A national
association of kindergarten through twelfth-grade educators indicated
that, increasingly, in its view, some parents are more likely to seek
school-related modifications for their child under the ADA, rather than
the IDEA. This commenter suggested, accordingly, that ADA litigation
would increase once parents become aware of the application of a
broader definition of ``disability'' due to the ADA Amendments Act.
The Department recognizes that the definition of ``disability''
under the IDEA is different than that under the ADA.\13\ While many
students will be covered by both statutes, some students covered by the
ADA will not be eligible for special education services under the IDEA;
however, such students are covered by section 504 of the Rehabilitation
Act and are entitled to a ``free appropriate public education'' (FAPE)
under the Department of Education's section 504 regulation. The
Department acknowledges commenters' views that some parents may assert
rights for their elementary, middle, and high school students under the
ADA due to the expanded definition of ``disability.'' However, the
Department believes that the overall number of additional requests for
reasonable modifications by elementary and secondary students that can
be attributed to the ADA Amendments Act will be small and that any
resulting economic impact is likely to be extremely limited. Students
with ADHD and learning disabilities who already are covered by section
504 and, in many instances, the IDEA as well, are entitled to needed
special education, related aids and services, modifications or
auxiliary aids or services under those statutes. Further, prior to
filing suit under the ADA, any student that is covered under both the
ADA and the IDEA must exhaust administrative remedies under the IDEA if
seeking a remedy that is available under that statute. Thus, while the
ADA is critical to ensuring that students with disabilities have a full
and equal opportunity to participate in and benefit from public
education, when viewed in concert with the protections already afforded
by section 504 and the IDEA, the economic impact of implementing the
ADA Amendments Act in K-12 schools will be minimal. The Department also
notes that none of these commenters provided any data demonstrating
that elementary and secondary schools have incurred additional costs
due to the passage of the ADA Amendments Act more than six years ago.
---------------------------------------------------------------------------

\13\ Under the IDEA, a ``child with a disability'' is a child
``with intellectual disabilities, hearing impairments (including
deafness), speech or language impairments, visual impairments
(including blindness), serious emotional disturbance . . .
orthopedic impairments, autism, traumatic brain injury, other health
impairments, or specific learning disabilities [and] who, by reason
thereof, needs special education and related services.'' 20 U.S.C.
1401(3). The IDEA regulation elaborates on each disability category
used in the statute. See 34 CFR 300.8.
---------------------------------------------------------------------------

Comments Regarding Possible Fraudulent Claims of Disability
A number of commenters stated that the rule might encourage some
people without learning disabilities to claim that they have learning
disabilities, so that they can take advantage of extra exam time. The
Department has not identified any study suggesting that the release of
this rule--more than six years after the effective date of the ADA
Amendments Act--likely will motivate a spike in false claims for
students seeking extra time on examinations. While individuals with
learning disabilities previously denied accommodations may be motivated
to seek recognition of their disabilities under this rule, because it
may offer an improved opportunity for consideration of their unmet
needs, the Department does not believe that individuals who might feign
disabilities in pursuit of extra time would modify their behavior as a
result of this rule; to the contrary, the motivation and opportunity to
feign such disabilities would have existed prior to the passage of the
ADA Amendments Act. The Department acknowledges that there will always
be some individuals who seek to take advantage of rules that extend
benefits to particular classes of individuals. However, the Department
has determined that the costs of such fraudulent behavior cannot
readily be computed. It appears that there is no generally accepted
metric for

[[Page 53214]]

determining how many claims of disability are fraudulent, or how the
cost of such fraudulent activity should be computed. And, the
Department found no evidence to indicate that the rate of fraudulent
claims of disability has increased since the implementation of the ADA
Amendments Act in 2009. It should be emphasized that individuals
seeking accommodations for their disabilities in testing situations
under the ADA will still undergo an individualized assessment to
determine whether they have disabilities covered by the statute.
Extended exam time is an accepted reasonable modification or testing
accommodation under the ADA for persons whose disabilities inhibit
their ability to complete timed tests. Because the Department is not
able to identify or measure an increase in fraudulent claims associated
with this rule, those potential costs are not reflected in the economic
analysis.
Final Results of the Primary Analysis
This section presents the calculations used to estimate the total
costs resulting from the revisions to the title II and title III
regulations to incorporate the changes made by the ADA Amendments Act.
Costs are first presented for postsecondary institutions and then for
national testing entities. For a more detailed explanation of the
Department's methodology and data used to calculate these costs, please
refer to relevant sections in the Final RA. The Final RA is available
on Department's Web site at www.ada.gov.
As explained above, total costs to postsecondary institutions will
include three components:
One-time cost of training staff on relevant impact of ADA
Amendments Act;
Annual cost of processing additional accommodation
requests for extra exam time made as a direct result of the ADA
Amendments Act; and
Annual cost of proctoring additional time on exams as a
direct result of the ADA Amendments Act.
To calculate the annual costs to all postsecondary institutions for
processing these additional accommodation requests and proctoring
additional exam time as a direct result of the ADA Amendments Act, the
potential number of students who could request and receive these
accommodations needs to be calculated. Calculations for the three costs
listed above plus the number of students who are eligible to receive
and likely to request accommodations for extra exam time as a direct
result of the ADA Amendments Act are presented below.
The annual one-time training cost for all postsecondary
institutions is presented in Table 1 below. The methodology used to
calculate this cost is explained further in Section 2.1 of the Final
RA, and the sources for the data used are provided in Section 3.1.1 of
the Final RA.

Table 1--Calculation of One-Time Training Costs for Postsecondary
Institutions
------------------------------------------------------------------------
Variable Value
------------------------------------------------------------------------
Number of Postsecondary Institutions.................... 7,234
One-Time Cost of Training on the Impacts of ADA 1,371
Amendments Act per Institution.........................
One-Time Training Cost for Postsecondary 9,917,633
Institutions.......................................
------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of
the inputs provided in the table.

The number of additional eligible students likely to request and
receive extra time on exams at postsecondary institutions as a direct
result of the ADA Amendments Act is calculated in Tables 2 and 3 below.
The methodology used for this calculation is explained further in
Section 2.2 of the Final RA, and the sources for the data used are
provided in Section 3.1.2 of the Final RA.

Table 2--Calculation of Number of Students Who Are Eligible To Receive Accommodations for Extra Exam Time at
Postsecondary Institutions
[First year]
----------------------------------------------------------------------------------------------------------------
Row # Variable Value Source
----------------------------------------------------------------------------------------------------------------
1.................. Total Number of 20,486,000 See Table 9 of the Final RA.
Postsecondary Students.
2.................. Percentage of Postsecondary 2.96% See Table 11 of the Final RA.
Students with a Learning
Disability or ADHD.
3.................. Total Postsecondary Students 606,386 Calculation
with a Learning Disability (Multiply Row 1 and Row 2).
or ADHD.
4.................. Percentage of Students with 51.1% See Table 12 of the Final RA.
Learning Disabilities or
ADHD Already Receiving
Accommodations for Extra
Exam Time Prior to Passage
of the ADA Amendments Act.
5.................. Total Number of Students 309,863 Calculation (Multiply Row 3 and Row 4).
with Learning Disabilities
or ADHD who were Requesting
Accommodations for Extra
Exam Time Prior to the ADA
Amendments Act.
6.................. Percentage of Students with 48.9% See Table 12 of the Final RA.
Learning Disabilities or
ADHD Not Receiving
Accommodations for Extra
Exam Time Prior to Passage
ADA Amendments Act.
7.................. Total Eligible Students who 296,523 Calculation
Could Potentially Request (Multiply Row 3 and Row 6).
and Receive Accommodations
for Extra Exam Time as a
Direct Result of the ADA
Amendments Act.
----------------------------------------------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

[[Page 53215]]

Table 3--Calculation of Number of Students Who Are Eligible To Receive and Likely To Request Accommodations for
Extra Exam Time at Postsecondary Institutions
[First year]
----------------------------------------------------------------------------------------------------------------
Row # Variable Low value Med value High value Source
----------------------------------------------------------------------------------------------------------------
1.......... Total Eligible 296,523 296,523 296,523 See Table 2 above.
Students who Could
Potentially Request
and Receive
Accommodations for
Extra Exam Time as
a Direct Result of
the ADA Amendments
Act.
2.......... Percentage of 50% 70% 90% See Table 13 of the Final RA.
Eligible Students
Who Were Not
Previously
Receiving
Accommodations for
Extra Exam Time
Prior to Passage of
the ADA Amendments
Act Who are Now
Likely to Request
and Receive this
Accommodation.
3.......... Number of Students 148,261 207,566 266,870 Calculation (Multiply Row 1 and Row
who are Eligible to 2).
Receive and Likely
to Request
Accommodations for
Extra Exam Time as
a Direct Result of
the ADA Amendments
Act.
----------------------------------------------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Table 4 below presents the calculations of the annual cost to
postsecondary institutions for processing new accommodation requests
for extra exam time. These requests are in addition to the ones
currently received and processed by postsecondary institutions that are
not being made as a direct result of the ADA Amendments Act. Costs
depend on the number of students who will now be eligible to request
and receive an accommodation for extra time on an exam as a direct
result of the ADA Amendments Act revisions. The methodology used to
calculate this cost is explained further in Section 2.3 of the Final
RA, and the sources for the data used are provided in Section 3.1.3 of
the Final RA.

Table 4--Calculation of Annual Cost to Postsecondary Institutions for Processing Additional Accommodation
Requests for Extra Exam Time
[First year]
----------------------------------------------------------------------------------------------------------------
Variable Low value Med value High value
----------------------------------------------------------------------------------------------------------------
Number of Students who are Eligible to Receive and Likely to 148,261 207,566 266,870
Request Accommodations for Extra Exam Time.....................
Number of Staff Hours to Process each Accommodation Request..... 2 2 2
Total Staff Hours to Process New Requests................... 296,523 415,132 533,741
Staff Hourly Wage Rate for Processing Accommodation Requests.... $24.91 $24.91 $24.91
Annual Cost to Postsecondary Institutions for Processing $7,387,118 $10,341,966 $13,296,813
Additional Accommodation Requests for Extra Exam Time......
----------------------------------------------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Tables 5 and 6 calculate the annual costs to postsecondary
institutions for proctoring additional time on exams requested by
eligible students as a direct result of the ADA Amendments Act. The
methodology used to calculate this cost is explained further in Section
2.4 of the Final RA, and the sources for the data used are provided in
Section 3.1.4 of the Final RA.

Table 5--Calculation of Annual Cost to Postsecondary Institutions for
Proctoring Extra Time on Exams, Per Student
[First year]
------------------------------------------------------------------------
Variable Value
------------------------------------------------------------------------
Average Length of an Exam at a Postsecondary 1.5
Institution in Hours...............................
Average Additional Time Requested, as a Percentage 75%
of Total Exam Time.................................
Average Amount of Extra Time per Exam in Hours.. 1.13
Average Number of Exams per Class................... 3
Average Number of Classes per Year.................. 8
Average Number of Exams per Student............. 24
Average Annual Additional Exam Time per Student in 27
Hours..............................................
Average Proctor to Student Ratio.................... 0.11
Average Hourly Wage of Exam Proctor................. $12.90
Annual Cost for Proctoring Additional Time on $36.67
Exams per Student..............................
------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of
the inputs provided in the table.

[[Page 53216]]

Table 6--Total Annual Cost to Postsecondary Institutions for Proctoring Extra Time on Exams
[First year]
----------------------------------------------------------------------------------------------------------------
Variable Low Med High
----------------------------------------------------------------------------------------------------------------
Annual Cost for Proctoring Additional Time on Exams per Student. $36.67 $36.67 $36.67
Number of Students who are Eligible to Receive and Likely to 148,261 207,566 266,870
Request Accommodations for Extra Exam Time.....................
Annual Cost to Postsecondary Institutions for Proctoring Extra $5,437,419 $7,612,387 $9,787,355
Time on Exams..................................................
----------------------------------------------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Just as with postsecondary institutions, the costs to national
testing entities from the revisions to the ADA Amendments Act will
include three components:
One-time cost of training staff on relevant impact of ADA
Amendments Act;
Annual cost of processing additional accommodation
requests for extra exam time made as a direct result of the ADA
Amendments Act; and
Annual cost of proctoring additional time on exams as a
direct result of the ADA Amendments Act.
The annual costs of processing additional accommodation requests
and proctoring the extra exam time depends on the number of test takers
who will request accommodations for extra exam time as a direct result
of the ADA Amendments Act. Calculations for the three costs listed
above plus the number of test takers who are eligible to receive and
likely to request accommodations of extra exam time as a direct result
of the ADA Amendments Act are presented below.
The annual one-time training cost for all national testing entities
is presented in Table 7 below. The methodology used to calculate this
cost is explained further in Section 2.1 of the Final RA, and the
sources for the data used are provided in Section 3.2.1 of the Final
RA.

Table 7--Calculation of One-Time Training Costs for National Testing
Entities
------------------------------------------------------------------------
Variable Value
------------------------------------------------------------------------
Number of National Testing Entities................. 1,397
One-Time Cost of Training on the Impacts of ADA $1,371
Amendments Act per Institution.....................
One-Time Training Cost for National Testing $1,915,252
Entities.......................................
------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of
the inputs provided in the table.

The number of test takers who are now eligible to receive and
likely to request extra time on national exams is calculated in Tables
8 and 9 below. The methodology used to calculate this number is
explained further in Section 2.2 of the Final RA, and the sources for
the data used are provided in Section 3.2.2 of the Final RA.

Table 8--Calculation of Number of Test Takers Who Are Eligible To Receive Accommodations for Extra Exam Time
From National Testing Entities
[First year]
----------------------------------------------------------------------------------------------------------------
Row # Variable Value Source
----------------------------------------------------------------------------------------------------------------
1.................. Total Number of Test Takers. 10,450,539 See Table 23 of the Final RA.
2.................. Percentage of Test Takers 2.96% See Table 11 of the Final RA.
with a Learning Disability
or ADHD *.
3.................. Total Test Takers with a 309,336 Calculation (Multiply Row 1 and Row 2).
Learning Disability or ADHD.
4.................. Percentage of Test Takers 51.1% See Table 12 of the Final RA.
with Learning Disabilities
or ADHD Already Receiving
Accommodations for Extra
Exam Time Prior to Passage
of the ADA Amendments Act.*
5.................. Total Number of Test Takers 158,071 Calculation (Multiply Row 3 and Row 4).
with Learning Disabilities
or ADHD who were Requesting
Accommodations for Extra
Exam Time Prior to the ADA
Amendments Act.
6.................. Percentage of Test Takers 48.9% See Table 12 of the Final RA.
with Learning Disabilities
or ADHD Not Receiving
Accommodations for Extra
Exam Time Prior to Passage
ADA Amendments Act.*
7.................. Total Eligible Test Takers 151,265 Calculation (Multiply Row 3 and Row 6).
who Could Potentially
Request and Receive
Accommodations for Extra
Exam Time as a Direct
Result of the ADA
Amendments Act.
----------------------------------------------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.
* For these assumptions, the Final RA assumes the same values for national test takers as found for
postsecondary students, since no specific data for national examinations was found and many national exams are
designed for students or recent graduates.

[[Page 53217]]

Table 9--Calculation of Number of Test Takers Who Are Eligible To Receive and Likely To Request Accommodations
for Extra Exam Time From National Testing Entities
----------------------------------------------------------------------------------------------------------------
Row # Variable Low Med High Source
----------------------------------------------------------------------------------------------------------------
1.......... Total Eligible Test 151,265 151,265 151,265 See Table 8 above.
Takers who Could
Potentially Request
and Receive
Accommodations for
Extra Exam Time as
a Direct Result of
the ADA Amendments
Act.
2.......... Percentage of 50% 70% 90% See Table 13 of the Final RA.
Eligible Test
Takers Who Were Not
Previously
Receiving
Accommodations for
Extra Exam Time
Prior to Passage of
the ADA Amendments
Act Who are Now
Likely to Request
and Receive this
Accommodation.
3.......... Number of Test 75,633 105,886 136,139 Calculation (Multiply Row 1 and Row
Takers who are 2).
Eligible to Receive
and Likely to
Request
Accommodations for
Extra Exam Time as
a Direct Result of
the ADA Amendments
Act.
----------------------------------------------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Table 10 illustrates the calculations of the annual cost to
national testing entities for processing additional accommodation
requests for extra exam time made as a direct result of the ADA
Amendments Act. The methodology used to calculate this cost is
explained further in Section 2.3 of the Final RA, and the sources for
the data used are provided in Section 3.2.3 of the Final RA.

Table 10--Calculation of Annual Cost to National Testing Entities for Processing Additional Accommodation
Requests for Extra Exam Time
[First year]
----------------------------------------------------------------------------------------------------------------
Variable Low value Med value High value
----------------------------------------------------------------------------------------------------------------
Number of Test Takers who are Eligible to Receive and Likely to 75,633 105,886 136,139
Request Accommodations for Extra Exam Time.....................
Number of Staff Hours to Process each Accommodation Request..... 2 2 2
Total Staff Hours to Process Additional Accommodation 151,265 211,771 272,278
Requests for Extra Exam Time...............................
Staff Hourly Wage Rate for Processing Accommodation Requests.... $24.91 $24.91 $24.91
Annual Cost to National Testing Entities for Processing $3,768,396 $5,275,755 $6,783,113
Additional Accommodation Requests for Extra Exam Time......
----------------------------------------------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Finally, Tables 11 and 12 calculate the annual costs to national
testing entities for allowing test takers to receive additional time on
exams. Again, the cost here may be calculated as the opportunity cost
of the seat occupied by the test taker for the additional hours of
testing. However, because the seat cost per test taker was not
available for this Final RA analysis, the additional time spent by a
test proctor to oversee the exam is used as a proxy for the cost. The
methodology used to calculate this cost is explained further in Section
2.4 of the Final RA, and the sources for the data used are provided in
Section 3.2.4 of the Final RA.

Table 11--Calculation of Annual Cost to National Testing Entities for
Proctoring Extra Time on Exams, per Test Taker
[First year]
------------------------------------------------------------------------
Variable Value
------------------------------------------------------------------------
Average Length of a National Exam in Hours........... 4.11
Average Extra Time Requested, as a Percentage of 75%
Total Exam Time.....................................
Average Amount of Extra Time per Exam in Hours... 3.09
Average Number of Exams per Test Taker per Year...... 1
Average Annual Extra Exam Time per Test Taker in 3.09
Hours...........................................
Average Proctor-to-Test-Taker Ratio.................. 1
Average Hourly Wage of Exam Proctor.................. $12.90
Cost to National Testing Entities for Proctoring $39.81
Extra Time on Exams per Test Taker..............
------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of
the inputs provided in the table.

Table 12--Total Annual Cost to National Testing Entities for Proctoring Extra Time on Exams
[First year]
----------------------------------------------------------------------------------------------------------------
Variable Low value Med value High value
----------------------------------------------------------------------------------------------------------------
Cost to National Testing Entities for Proctoring Extra Time on $39.81 $39.81 $39.81
Exams per Test Taker...........................................
Number of Test Takers who are Eligible to Receive and Likely to 75,633 105,886 136,139
Request Accommodations for Extra Exam Time each year...........

[[Page 53218]]

Annual Cost to National Testing Entities for Proctoring Extra $3,011,096 $4,215,534 $5,419,973
Time on Exams..................................................
----------------------------------------------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Based on the calculations provided above, total costs to society
for implementing the ADA Amendments Act revisions into the title II and
title III regulations will range between $31.4 million and $47.1
million in the first year. The first year of costs will be higher than
all subsequent years because the first year includes the one-time cost
of training. Note that even the high end of this first-year cost range
is well below the $100 million mark that signifies an ``economically
significant'' regulation. The breakdown of total costs by entity is
provided in Table 13 below.

Table 13--Total Costs First Year (2016) in Primary Analysis, Non-Discounted
[$ millions]
----------------------------------------------------------------------------------------------------------------
Cost category Low value Med value High value
----------------------------------------------------------------------------------------------------------------
Postsecondary Institutions: ANNUAL Total Costs of Processing $12.8 $18.0 $23.1
Additional Requests and Proctoring Extra Exam Time.............
Postsecondary Institutions: ONE-TIME Cost for Additional 9.9 9.9 9.9
Training at Institutions.......................................
National Exams: ANNUAL Total Costs of Processing Additional 6.8 9.5 12.2
Requests and Proctoring Extra Exam Time........................
National Exams: ONE-TIME Cost for Additional Training at 1.9 1.9 1.9
Institutions...................................................
-----------------------------------------------
Total....................................................... 31.4 39.3 47.1
----------------------------------------------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the sum of the inputs provided in the table.

Taking these costs over the next 10 years and discounting to
present value terms at a rate of 7 percent, the total cost of
implementing the ADA Amendments Act revisions is approximately $214.2
million over 10 years, as shown in Table 14 below.

Table 14--Total Costs Over 10 Years, Primary Analysis
----------------------------------------------------------------------------------------------------------------
Annualized
Total discounted value ($ millions) estimate ($ Year dollar Discount rate Period covered
millions) (percent)
----------------------------------------------------------------------------------------------------------------
$214.2.......................................... $28.6 2015 7 2016-2025
$243.6.......................................... 26.3 2015 3 2016-2025
----------------------------------------------------------------------------------------------------------------

Potential Additional Costs to National Testing Entities
The ADA Amendments Act revisions will allow eligible individuals
with disabilities to receive additional time on exams, both for course-
work exams at postsecondary institutions and standardized national
examinations. Some national examinations are long and can last up to
eight hours per test. Thus, when test takers request additional time on
these longer exams, such requests will inevitably push the exam into an
additional day.
As commenters pointed out in response to the Initial RA, there are
costs associated with providing exams on an additional day. While there
is no data to predict which exams will extend to an additional day,
especially given that specific accommodations are determined
individually, this Final RA assumes that exams that normally would take
six hours or more to administer and be scheduled for one day may
require an additional day of testing if the test taker seeks more time
as an accommodation. To quantify the total costs of providing an
additional day of testing for those individuals who would not
previously have received this additional time, prior to the passage of
the ADA Amendments Act, the following two costs are quantified:
Exam Revision Costs
While it appears that many national testing entities do not revise
the content of exams that span an additional day, the exam format and
materials can be affected by such an extension. For instance, computer-
based exams are programmed to span a certain amount of time, allowing
for timed break periods throughout. When more time is provided to take
the exam, the exam must be reprogrammed to span the new amount of time,
with planned breaks for the test taker. For paper-based exams, test
booklets are often reprinted to allow one set of questions for one day
of testing, and another set for the extra day of testing. This form of
printing prevents test takers from going home and looking up the
answers for the next set of questions.
Room Rental Cost
Exams are delivered in different settings depending on the type of
national exam. Some exams are delivered at testing centers where
different types of exams are administered at once in the same room. In
this case, the cost of an extra day of testing could be captured by the
seat cost per test taker. Other exams are delivered to test takers
exclusively taking that exam, and those exams are often administered in
rooms rented out at a university, hotel, or other building. This cost
could be captured by the room rental cost. The Final RA takes a
conservative approach, using the room

[[Page 53219]]

rental cost to approximate the cost of delivering an exam over an
additional day, as this is the larger of the two costs.
Based on the calculations provided in Sections 4.2.1 and 4.2.2 of
the Final RA, the total additional costs of providing an extra testing
day to eligible test takers will likely range between $2.7 and $4.8
million per year. Table 15 adds this into the total costs in the first
year to approximate the range of total costs to society from
implementing the ADA Amendments Act revisions. For further information
on the methodology, data, and assumptions used to analyze these
potential additional costs for national testing entities, please refer
to Section 4.2 of the Final RA.

Table 15--Total Costs First Year, Plus Potential Additional Costs for Additional Day of Testing, Non-Discounted
[$ millions]
----------------------------------------------------------------------------------------------------------------
Cost category Low value Med value High value
----------------------------------------------------------------------------------------------------------------
Postsecondary Institutions: ANNUAL Total Costs of Processing $12.8 $18.0 $23.1
Additional Requests and Proctoring Extra Exam Time.............
Postsecondary Institution: ONE-TIME Cost for Additional Training 9.9 9.9 9.9
at Institutions................................................
National Exams: ANNUAL Total Costs of Processing Additional 6.8 9.5 12.2
Requests and Proctoring Extra Exam Time........................
National Exams: ONE-TIME Cost for Additional Training at 1.9 1.9 1.9
Institutions...................................................
National Exams: ANNUAL Potential Additional Costs for Exams that 2.7 3.8 4.8
Run over onto an Additional Day................................
-----------------------------------------------
Total....................................................... 34.1 43.1 52.0
----------------------------------------------------------------------------------------------------------------
Note: Due to rounding, totals may not equate exactly to the sum of the inputs provided in the table.

Benefits Discussion
The Department believes that the enactment of the ADA Amendments
Act benefits millions of Americans, and the benefits to those
individuals are non-quantifiable but nonetheless significant. The
Department determined, however, that there was a group of individuals
with disabilities who would be able to receive benefits in the form of
increased access to accommodations in testing from postsecondary
institutions and national testing entities, and that these benefits
would be associated with specific costs to those institutions and
entities, which are analyzed above.
With respect to specific benefits, in the first year, our analysis
estimates that approximately 148,261 to 266,870 postsecondary students
will take advantage of accommodations for extra exam time that they
otherwise would not have received but for this rule. Over 10 years,
approximately 1.6 million to 2.8 million students will benefit. An
additional 802,196 to 1.4 million national exam test takers would
benefit over that same 10 years (assuming that people take an exam one
time only).
Some number of these individuals could be expected to earn a degree
or license that they otherwise would not have as a result of the
testing accommodations they are now eligible to receive as a direct
result of the ADA Amendments Act. The Department was unable to find
robust data to estimate the number of students who would receive a
bachelor's degree or licenses after this rule goes into effect that
would not otherwise have received one. However, extensive research has
shown notably higher earnings for those with college degrees over those
who do not have degrees. Estimates of this lifetime earnings vary, with
some studies estimating an earning differential ranging from
approximately $300,000 to $1 million.\14\ In addition, some number of
students may be able to earn a degree in a higher-paying field than
they otherwise could, and yet other students would get the same degree,
but perhaps finish their studies faster or more successfully (i.e.,
higher grades) than otherwise would be the case. All of these outcomes
would be expected to lead to greater lifetime productivity and
earnings.
---------------------------------------------------------------------------

\14\ See Mark Schneider, How Much Is That Bachelor's Degree
Really Worth?: The Million Dollar Misunderstanding, American
Enterprise Institute, AEI Online (May 2009), available at http://www.aei.org/article/education/higher-education/how-much-is-that-bachelors-degree-really-worth/ (last visited Feb. 3, 2016); U.S.
Census Bureau, Work-Life earnings by Field of Degree and Occupation
for People with a Bachelor's Degree: 2011, American Community Survey
Briefs (Oct. 2012), available at http://www.census.gov/prod/2012pubs/acsbr11-04.pdf (last visited Feb. 3, 2016); Anthony P.
Carnevale et al., The College Payoff-Education, Occupations,
Lifetime Earnings, Georgetown University Center on Education and the
Workforce (2011), available at https://cew.georgetown.edu/wp-content/uploads/2014/11/collegepayoff-complete.pdf (last visited
April 22, 2016).
---------------------------------------------------------------------------

In addition to these quantitative benefits, this rule will have
significant non-quantifiable benefits to individuals with disabilities
who, prior to the passage of the ADA Amendments Act and this rule, were
denied the opportunity for equal access to an education or to become
licensed in their chosen professions because of their inability to
receive needed testing accommodations. As with all other improvements
in access for individuals with disabilities, the ADA Amendments Act is
expected to generate psychological benefits for covered individuals,
including reduced stress and an increased sense of personal dignity and
self-worth, as more individuals with disabilities are able to
successfully complete tests and exams and more accurately demonstrate
their academic skills and abilities. Some individuals will now be more
likely to pursue a favored career path or educational pursuit, which
will in turn lead to greater personal satisfaction.
Additional benefits to society arise from improved testing
accessibility. For instance, if some persons with disabilities are able
to increase their earnings, they may need less public support--either
direct financial support or support from other programs or services.
This, in turn, would lead to cross-sector benefits from resource
savings arising from reduced social service agency outlays. Others,
such as family members of individuals with disabilities, may also
benefit from reduced financial and psychological pressure due to the
greater independence and earnings of the family member whose disability
is now covered by the ADA under the revised definition of
``disability.''
In addition to the discrete group of individuals with learning
disabilities and ADHD who will benefit from the changes made to the
definition of ``disability,'' there is a class of individuals who will
now fall within the nondiscrimination protections of the ADA if they
are refused access to or participation in the facilities, programs,

[[Page 53220]]

services, or activities of covered entities. The benefits to these
individuals are significant, but unquantifiable. The Department
believes (as did Congress when it enacted the ADA) that there is
inherent value that results from greater accessibility for all
Americans. Economists use the term ``existence value'' to refer to the
benefit that individuals derive from the plain existence of a good,
service, or resource--in this case, the increased accessibility to
postsecondary degrees and specialized licenses that would arise from
greater access to testing accommodations or the increased accessibility
to covered entities' facilities, programs, services, or activities as a
result of the ADA Amendments Act. This value can also be described as
the value that people both with and without disabilities derive from
the guarantees of equal protection and nondiscrimination. In other
words, people value living in a country that guarantees the rights of
persons with disabilities, whether or not they themselves are directly
or indirectly affected by disabilities. There can be a number of
reasons why individuals might value accessibility even if they do not
require it now and do not ever anticipate needing it in the future.
These reasons include bequest motives and concern for relatives or
friends who require accessibility. People in society value equity,
fairness, and human dignity, even if they cannot express these values
in terms of money. These are the exact values that agencies are
directed to consider in Executive Order 13563.

B. Regulatory Flexibility Act

In the NPRM, the Department stated that, based on its analysis, it
``can certify that the rule will not have a significant economic impact
on a substantial number of small entities.'' The Department sought
public comment on this proposed certification and its underlying
analysis, including the costs to small entities, but received no public
comments on these issues. The Attorney General has again reviewed this
regulation in accordance with the Regulatory Flexibility Act, 5 U.S.C.
605(b), and by approving it hereby certifies that it will not have a
significant economic impact on a substantial number of small entities
for the reasons discussed more fully below.
First, the ADA Amendments Act took effect on January 1, 2009; all
covered entities have been required to comply with the Act since that
date and thus should be familiar with the requirements of the law.
Second, the rule does not include reporting requirements and imposes no
new recordkeeping requirements. Third, as shown above, the only title
II and title III entities that would be significantly affected by the
proposed changes to the ADA regulations are national testing entities
and postsecondary institutions. The type of accommodations that most
likely will be requested and required by those whose coverage has been
clarified under titles II and III of ADA Amendments Act will be
additional time in testing situations. While many of these national
testing or postsecondary institutions are small businesses or small
governmental entities, the costs associated with additional testing
time are minimal; therefore, the Department believes the economic
impact of this rule will be neither significant for these small
entities nor disproportionate relative to the costs for larger
entities.
The Department estimates that approximately 7,234 postsecondary
institutions could be impacted based on data from the U.S. Department
of Education National Center for Education Statistics.\15\ The
Department used data from the U.S. Census Bureau \16\ from 2012 for
Junior Colleges (NAICS \17\ 6112) and Colleges, Universities, and
Professional Schools (NAICS 6113) to estimate the proportion of those
entities that would meet the Small Business Administration's criteria
for small business or small governmental entity.\18\ As shown in Table
18 and Table 19 below, small postsecondary institutions are estimated
to account for approximately 35.3 percent of all postsecondary
institutions. Therefore, the Department estimates that 2,556 small
postsecondary institutions would be impacted by this rule.
---------------------------------------------------------------------------

\15\ U.S. Department of Education, National Center for Education
Statistics (2015). Digest of Education Statistics, 2013 (NCES 2015-
011), Chapter 2. 2011-2012 academic year--Number of Title IV
institutions, by level and control of institution and state or other
jurisdiction, available at https://nces.ed.gov/fastfacts/display.asp?id=84 (last visited Feb.3, 2016).
\16\ U.S. Census Bureau, Number of Firms, Number of
Establishments, Employment, Annual Payroll, and Estimated Receipts
by Enterprise Receipt Sizes for the United States, NAICS Sectors:
2012, available at http://www.census.gov/econ/susb/ (last visited
Feb. 3, 2016).
\17\ North American Industry Classification System.
\18\ U.S. Small Business Administration, Table of Small Business
Size Standards, available at https://www.sba.gov/content/small-business-size-standards (last visited April 22, 2016).
---------------------------------------------------------------------------

The overall costs of this rule for postsecondary institutions were
calculated based on the number of entities and number of postsecondary
students affected. The cost of processing additional accommodation
requests for extra exam time and the cost of additional time spent
proctoring exams depend on the number of students. This methodology
assumes that per-student costs are roughly the same for institutions of
differing sizes. Because larger entities have more students on average
than smaller ones, the Department used the proportion of the industry
sub-group's revenues for small and large entities as a proxy for the
number of students. Thus, using receipts for Junior Colleges (NAICS
6112) and Colleges, Universities, and Professional Schools (NAICS 6113)
as a proxy for number of students, small postsecondary institutions are
estimated to bear 4 percent of the processing and proctoring costs for
providing additional exam time for that industry sub-group--or
approximately $726,534 of the $17.95 million first-year costs.
Additionally, postsecondary institutions are expected to incur one-time
costs for additional training of $1,371 per entity (see Tables 6-8 in
the Final RA). In total, small postsecondary institutions would incur
$4.2 million in costs in the first year, which would average
approximately $1,655 for each of the 2,556 small postsecondary
institutions. The average annual revenue for each these small
postsecondary institutions is $501,600. The cost is 0.33 percent of
their revenue. Therefore, the costs will not be substantial for these
small entities.
In comparison to the number of small postsecondary entities, there
are approximately 4,678 postsecondary institutions (64.7 percent of the
7,234) that would be considered larger entities, and these larger
entities would incur $23.6 million in costs during the first year,
which would average out to approximately $5,053 per large postsecondary
institution during the first year. This $5,053 per large postsecondary
institution during the first year is approximately 3.1 times higher
than the cost that would be incurred by small postsecondary
institutions during that same time.

[[Page 53221]]

Table 16--Firm, Establishment, and Receipts Data for Junior Colleges (NAICS 6112) in 2012
----------------------------------------------------------------------------------------------------------------
Est. receipts
Firms Establishments ($000,000)
----------------------------------------------------------------------------------------------------------------
All Junior Colleges....................................... 464 953 8,449
Small Junior Colleges (estimated)*........................ 378 427 1,723
Small Junior Colleges as a Percentage of All Junior 81.5% 44.8% 20.4%
Colleges.................................................
----------------------------------------------------------------------------------------------------------------
* SBA small business standard is $20.5 million; small business totals here include those with receipts under $25
million. This is due to data being reported in size categories that do not exactly match industry small
business classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and
from $20 million to $24.99 million, and from $25 million to $29.99 million.
Source: Calculated from data provided by the U.S. Census Bureau, Statistics of U.S. Businesses. See SBA Office
of Advocacy and U.S. Census Bureau, Statistics of U.S. Businesses, Table 2--Number of firms, establishment,
receipts, employment, and payroll by firm size (in receipts) and industry, 2012, available at https://www.sba.gov/advocacy/firm-size-data (last visited April 22, 2016).

Table 17--Firm, Establishment, and Receipts Data for Colleges, Universities, and Professional Schools (NAICS
6113) in 2012
----------------------------------------------------------------------------------------------------------------
Est. receipts
Firms Establishments ($000,000)
----------------------------------------------------------------------------------------------------------------
All Colleges, Universities, and Professional Schools...... 2,282 4,329 222,854
Small Colleges, Universities, and Professional Schools 1,369 1,439 7,637
(estimated) *............................................
Small Colleges, Universities, and Professional Schools as 60.0% 33.2% 3.4%
a Percentage of All Colleges, Universities, and
Professional Schools.....................................
----------------------------------------------------------------------------------------------------------------
* SBA small business standard is $27.5 million; small business totals here include those with receipts under $30
million. This is due to data being reported in size categories that do not exactly match industry small
business classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and
from $20 million to $24.99 million, and from $25 million to $29.99 million.
Source: Calculated from data provided by the U.S. Census Bureau, Statistics of U.S. Businesses. See SBA Office
of Advocacy and U.S. Census Bureau, Statistics of U.S. Businesses, Table 2--Number of firms, establishment,
receipts, employment, and payroll by firm size (in receipts) and industry, 2012, available at https://www.sba.gov/advocacy/firm-size-data (last visited April 22, 2016).

Table 18--Firm, Establishment, and Receipts Data for Both Junior Colleges (NAICS 6112) and Small Colleges,
Universities, and Professional Schools (NAICS 6113), Combined, in 2012
----------------------------------------------------------------------------------------------------------------
Est. receipts
Firms Establishments ($000,000)
----------------------------------------------------------------------------------------------------------------
All Junior Colleges, and Colleges, Universities, and 2,746 5,282 231,303
Professional Schools.....................................
Small Junior Colleges, and Colleges, Universities, and 1,747 1,866 9,360
Professional Schools (estimated) *.......................
Small Junior Colleges, and Colleges, Universities, and 63.6% 35.3% 4.0%
Professional Schools as a Percentage of All Junior
Colleges, and Colleges, Universities, and Professional
Schools..................................................
----------------------------------------------------------------------------------------------------------------
* SBA small business standard for Junior Colleges is $20.5 million; small business totals here include Junior
Colleges with receipts under $25 million. This is due to data being reported in size categories that do not
exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from $15
million to $19.99 million; and from $20 million to $24.99 million, and from $25 million to $29.99 million. The
SBA small business standard for Colleges, Universities, and Professional Schools is $27.5 million; small
business totals here include Colleges, Universities, and Professional Schools with receipts under $30 million.
This is due to data being reported in size categories that do not exactly match industry small business
classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and from $20
million to $24.99 million, and from $25 million to $29.99 million.
Source: Calculated from data provided by the U.S. Census Bureau, Statistics of U.S. Businesses. See SBA Office
of Advocacy and U.S. Census Bureau, Statistics of U.S. Businesses, Table 2--Number of firms, establishment,
receipts, employment, and payroll by firm size (in receipts) and industry, 2012, available at https://www.sba.gov/advocacy/firm-size-data (last visited April 22, 2016).

Table 19--Estimated Small Entity Establishments for Postsecondary
Institutions in 2011-12
------------------------------------------------------------------------

------------------------------------------------------------------------
Total Postsecondary Establishments (All Firms/Entities); 7,234
Academic year 2010-2011 *..............................
Percent Small Entities (2012) **........................ 35.3%
Total Impacted Small Entity Establishments ***.......... 2,556
------------------------------------------------------------------------
* U.S. Department of Education, National Center for Education
Statistics, (2015), Digest of Education Statistics, 2013 (NCES 2015-
011), available at https://nces.ed.gov/fastfacts/display.asp?id=84
(last visited Feb. 3, 2016).
** Derived from Tables 16-18 above.
*** Estimated using percentage of small establishments for NAICS sectors
6112 and 6113.

[[Page 53222]]

In addition to postsecondary institutions, some national testing
entities would also be impacted. The Department used data on
Educational Test Development and Evaluation Services (NAICS 6117102)
\19\ to estimate the number of affected entities. Approximately 1,397
national testing entities would be impacted by this rule, irrespective
of size. Small entity establishments are estimated to account for 923
(66.1 percent) of these.
---------------------------------------------------------------------------

\19\ Using data reported by the Census Bureau for 2007, the most
recent year for which information on NAICS 6117102 was available.

Table 20--Firm and Receipts Data for National Testing Entities in 2007: Educational Test Development and
Evaluation Services (NAICS 6117102)
----------------------------------------------------------------------------------------------------------------
Est. receipts
Firms Establishments ($000,000)
----------------------------------------------------------------------------------------------------------------
Small, Medium, and Large Entities *....................... 748 1,144 2,843
Small Entities **......................................... 734 756 704
Percentage Small Entities................................. 98.1% 66.1% 24.8%
Total Entities............................................ 1,000 1,397 2,907
Estimated Total Small Entities ***........................ 981 923 720
----------------------------------------------------------------------------------------------------------------
* Includes only those entities which were categorized by annual revenue in the available data.
** Data is reported in size categories that do not exactly match industry small business classifications: i.e.
from $5 million to $9.99 million, and from $10 million to $24.99 million. SBA small business standard is $15.0
million for all Educational Support Services; small business totals here include those with receipts under $25
million.
*** Applying the estimated percentage of small entities to the total number of entities.
Source: Calculated from data provided by the U.S. Census Bureau. See U.S. Census Bureau, 2007 Economic Census,
Educational Services: Subject Series--Estab and Firm Size: Receipts/Revenue Size of Establishments for the
United States: 2007 (EC0761SSSZ4), available at http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_61SSSZ1&prodType=tableE: (last visited Feb. 3, 2016).

Small entity establishments in the Educational Test Development and
Evaluation Services industry group account for 24.8 percent of that
industry's receipts. If receipts are used as a proxy for number of test
takers in a manner similar to that described above for postsecondary
institutions, then small national testing entities can be expected to
bear 24.8 percent of the industry's $9.49 million first-year costs of
processing additional accommodation requests for extra exam time and
additional time spent proctoring exams--or approximately $2.35 million.
Additionally, national testing entities are expected to incur a fixed
cost for additional training of $1,371 per entity. Thus, for the
approximately 923 small national testing entities, total costs in the
first year are estimated to average $3,918 each. Average revenue for
these entities is $780,264. The cost is 0.50 percent of their revenue.
Therefore, the costs will not be substantial for these small entities.
In comparison to the number of small testing entities,
approximately 474 national testing center establishments (33.9 percent
of the 1,397) would be considered larger entities, and they would incur
$7.79 million in costs during the first year, which would average out
to approximately $16,440 per large national testing center
establishment during the first year. This $16,440 per large national
testing center establishment is approximately 4.2 times as high as the
cost that would be incurred by small national testing center
establishments during that same time.
As explained above, the Department estimates that approximately
2,556 small postsecondary establishments and 923 small national testing
establishments would be impacted by this rule, for a total of
approximately 3,479 small business establishments. The estimates were
based on average estimates for all entities, irrespective of size. The
Department notes that the average first-year cost estimates presented
above for small entities are higher than the first-year cost estimates
presented in the NPRM because the Department's estimates for the
initial training costs (which will be incurred during the first year)
are now higher based on public comment and further research and
analysis conducted by the Department. However, the overall costs of
this rule for small entities over the 10-year period are lower because
the Department's final overall cost estimates in the Final RA are lower
as a result of refinements made to the analysis in response to public
comment and based on further research conducted by the Department.
Based on the above analysis, the Attorney General can certify that
the rule will not have a significant economic impact on a substantial
number of small entities.

C. Executive Order 13132: Federalism

Executive Order 13132 of August 4, 1999, Federalism, directs that,
to the extent practicable and permitted by law, an agency shall not
promulgate any regulation that has federalism implications, that
imposes substantial direct compliance costs on State and local
governments, that is not required by statute, or that preempts State
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. Because this rule does not have
federalism implications as defined in the Executive Order, does not
impose direct compliance costs on State and local governments, is
required by statute, and does not preempt State law within the meaning
of the Executive Order, the Department has concluded that compliance
with the requirements of section 6 is not necessary.

D. Plain Language Instructions

The Department makes every effort to promote clarity and
transparency in its rulemaking. In any regulation, there is a tension
between drafting language that is simple and straightforward and
drafting language that gives full effect to issues of legal
interpretation. The Department operates a toll-free ADA Information
Line (800) 514-0301 (voice); (800) 514-0383 (TTY) that the public is
welcome to call to obtain assistance in understanding anything in this
final rule.

E. Paperwork Reduction Act

This final rule does not contain any new or revised ``collection[s]
of information'' as defined by the

[[Page 53223]]

Paperwork Reduction Act of 1995. 44 U.S.C. 3501 et seq.

F. Unfunded Mandates Reform Act

Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1503(2), excludes from coverage under that Act any proposed or final
Federal regulation that ``establishes or enforces any statutory rights
that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.

List of Subjects for 28 CFR Parts 35 and 36

Administrative practice and procedure, Buildings and facilities,
Business and industry, Civil rights, Communications equipment,
Individuals with disabilities, Reporting and recordkeeping
requirements, State and local governments.

By the authority vested in me as Attorney General by law, including
28 U.S.C. 509 and 510, 42 U.S.C. 12134, 12186, and 12205a, and Public
Law 110-325, 122 Stat. 3553 (2008), parts 35 and 36 of title 28 of the
Code of Federal Regulations are amended as follows:

PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES

0
1. Revise the authority citation for part 35 to read as follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134,
12131, and 12205a.

0
2. Revise Sec. 35.101 to read as follows:

Sec. 35.101 Purpose and broad coverage.

(a) Purpose. The purpose of this part is to implement subtitle A of
title II of the Americans with Disabilities Act of 1990 (42 U.S.C.
12131-12134), as amended by the ADA Amendments Act of 2008 (ADA
Amendments Act) (Pub. L. 110-325, 122 Stat. 3553 (2008)), which
prohibits discrimination on the basis of disability by public entities.
(b) Broad coverage. The primary purpose of the ADA Amendments Act
is to make it easier for people with disabilities to obtain protection
under the ADA. Consistent with the ADA Amendments Act's purpose of
reinstating a broad scope of protection under the ADA, the definition
of ``disability'' in this part shall be construed broadly in favor of
expansive coverage to the maximum extent permitted by the terms of the
ADA. The primary object of attention in cases brought under the ADA
should be whether entities covered under the ADA have complied with
their obligations and whether discrimination has occurred, not whether
the individual meets the definition of ``disability.'' The question of
whether an individual meets the definition of ``disability'' under this
part should not demand extensive analysis.

0
3. Amend Sec. 35.104 by revising the definition of ``Disability'' to
read as follows:

Sec. 35.104 Definitions.

* * * * *
Disability. The definition of disability can be found at Sec.
35.108.
* * * * *

0
4. Add Sec. 35.108 to subpart A to read as follows:

Sec. 35.108 Definition of ``disability.''

(a)(1) Disability means, with respect to an individual:
(i) A physical or mental impairment that substantially limits one
or more of the major life activities of such individual;
(ii) A record of such an impairment; or
(iii) Being regarded as having such an impairment as described in
paragraph (f) of this section.
(2) Rules of construction. (i) The definition of ``disability''
shall be construed broadly in favor of expansive coverage, to the
maximum extent permitted by the terms of the ADA.
(ii) An individual may establish coverage under any one or more of
the three prongs of the definition of ``disability'' in paragraph
(a)(1) of this section, the ``actual disability'' prong in paragraph
(a)(1)(i) of this section, the ``record of'' prong in paragraph
(a)(1)(ii) of this section, or the ``regarded as'' prong in paragraph
(a)(1)(iii) of this section.
(iii) Where an individual is not challenging a public entity's
failure to provide reasonable modifications under Sec. 35.130(b)(7),
it is generally unnecessary to proceed under the ``actual disability''
or ``record of'' prongs, which require a showing of an impairment that
substantially limits a major life activity or a record of such an
impairment. In these cases, the evaluation of coverage can be made
solely under the ``regarded as'' prong of the definition of
``disability,'' which does not require a showing of an impairment that
substantially limits a major life activity or a record of such an
impairment. An individual may choose, however, to proceed under the
``actual disability'' or ``record of'' prong regardless of whether the
individual is challenging a public entity's failure to provide
reasonable modifications.
(b)(1) Physical or mental impairment means:
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body systems,
such as: neurological, musculoskeletal, special sense organs,
respiratory (including speech organs), cardiovascular, reproductive,
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin,
and endocrine; or
(ii) Any mental or psychological disorder such as intellectual
disability, organic brain syndrome, emotional or mental illness, and
specific learning disability.
(2) Physical or mental impairment includes, but is not limited to,
contagious and noncontagious diseases and conditions such as the
following: orthopedic, visual, speech, and hearing impairments, and
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, intellectual disability, emotional
illness, dyslexia and other specific learning disabilities, Attention
Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection
(whether symptomatic or asymptomatic), tuberculosis, drug addiction,
and alcoholism.
(3) Physical or mental impairment does not include homosexuality or
bisexuality.
(c)(1) Major life activities include, but are not limited to:
(i) Caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, sitting, reaching, lifting,
bending, speaking, breathing, learning, reading, concentrating,
thinking, writing, communicating, interacting with others, and working;
and
(ii) The operation of a major bodily function, such as the
functions of the immune system, special sense organs and skin, normal
cell growth, and digestive, genitourinary, bowel, bladder,
neurological, brain, respiratory, circulatory, cardiovascular,
endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems.
The operation of a major bodily function includes the operation of an
individual organ within a body system.
(2) Rules of construction. (i) In determining whether an impairment
substantially limits a major life activity, the term major shall not be
interpreted strictly to create a demanding standard.
(ii) Whether an activity is a major life activity is not determined
by reference to whether it is of central importance to daily life.
(d) Substantially limits--(1) Rules of construction. The following
rules of

[[Page 53224]]

construction apply when determining whether an impairment substantially
limits an individual in a major life activity.
(i) The term ``substantially limits'' shall be construed broadly in
favor of expansive coverage, to the maximum extent permitted by the
terms of the ADA. ``Substantially limits'' is not meant to be a
demanding standard.
(ii) The primary object of attention in cases brought under title
II of the ADA should be whether public entities have complied with
their obligations and whether discrimination has occurred, not the
extent to which an individual's impairment substantially limits a major
life activity. Accordingly, the threshold issue of whether an
impairment substantially limits a major life activity should not demand
extensive analysis.
(iii) An impairment that substantially limits one major life
activity does not need to limit other major life activities in order to
be considered a substantially limiting impairment.
(iv) An impairment that is episodic or in remission is a disability
if it would substantially limit a major life activity when active.
(v) An impairment is a disability within the meaning of this part
if it substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population. An impairment does not need to prevent, or significantly or
severely restrict, the individual from performing a major life activity
in order to be considered substantially limiting. Nonetheless, not
every impairment will constitute a disability within the meaning of
this section.
(vi) The determination of whether an impairment substantially
limits a major life activity requires an individualized assessment.
However, in making this assessment, the term ``substantially limits''
shall be interpreted and applied to require a degree of functional
limitation that is lower than the standard for substantially limits
applied prior to the ADA Amendments Act.
(vii) The comparison of an individual's performance of a major life
activity to the performance of the same major life activity by most
people in the general population usually will not require scientific,
medical, or statistical evidence. Nothing in this paragraph (d)(1) is
intended, however, to prohibit or limit the presentation of scientific,
medical, or statistical evidence in making such a comparison where
appropriate.
(viii) The determination of whether an impairment substantially
limits a major life activity shall be made without regard to the
ameliorative effects of mitigating measures. However, the ameliorative
effects of ordinary eyeglasses or contact lenses shall be considered in
determining whether an impairment substantially limits a major life
activity. Ordinary eyeglasses or contact lenses are lenses that are
intended to fully correct visual acuity or to eliminate refractive
error.
(ix) The six-month ``transitory'' part of the ``transitory and
minor'' exception in paragraph (f)(2) of this section does not apply to
the ``actual disability'' or ``record of'' prongs of the definition of
``disability.'' The effects of an impairment lasting or expected to
last less than six months can be substantially limiting within the
meaning of this section for establishing an actual disability or a
record of a disability.
(2) Predictable assessments. (i) The principles set forth in the
rules of construction in this section are intended to provide for more
generous coverage and application of the ADA's prohibition on
discrimination through a framework that is predictable, consistent, and
workable for all individuals and entities with rights and
responsibilities under the ADA.
(ii) Applying these principles, the individualized assessment of
some types of impairments will, in virtually all cases, result in a
determination of coverage under paragraph (a)(1)(i) of this section
(the ``actual disability'' prong) or paragraph (a)(1)(ii) of this
section (the ``record of'' prong). Given their inherent nature, these
types of impairments will, as a factual matter, virtually always be
found to impose a substantial limitation on a major life activity.
Therefore, with respect to these types of impairments, the necessary
individualized assessment should be particularly simple and
straightforward.
(iii) For example, applying these principles it should easily be
concluded that the types of impairments set forth in paragraphs
(d)(2)(iii)(A) through (K) of this section will, at a minimum,
substantially limit the major life activities indicated. The types of
impairments described in this paragraph may substantially limit
additional major life activities (including major bodily functions) not
explicitly listed in paragraphs (d)(2)(iii)(A) through (K).
(A) Deafness substantially limits hearing;
(B) Blindness substantially limits seeing;
(C) Intellectual disability substantially limits brain function;
(D) Partially or completely missing limbs or mobility impairments
requiring the use of a wheelchair substantially limit musculoskeletal
function;
(E) Autism substantially limits brain function;
(F) Cancer substantially limits normal cell growth;
(G) Cerebral palsy substantially limits brain function;
(H) Diabetes substantially limits endocrine function;
(I) Epilepsy, muscular dystrophy, and multiple sclerosis each
substantially limits neurological function;
(J) Human Immunodeficiency Virus (HIV) infection substantially
limits immune function; and
(K) Major depressive disorder, bipolar disorder, post-traumatic
stress disorder, traumatic brain injury, obsessive compulsive disorder,
and schizophrenia each substantially limits brain function.
(3) Condition, manner, or duration. (i) At all times taking into
account the principles set forth in the rules of construction, in
determining whether an individual is substantially limited in a major
life activity, it may be useful in appropriate cases to consider, as
compared to most people in the general population, the conditions under
which the individual performs the major life activity; the manner in
which the individual performs the major life activity; or the duration
of time it takes the individual to perform the major life activity, or
for which the individual can perform the major life activity.
(ii) Consideration of facts such as condition, manner, or duration
may include, among other things, consideration of the difficulty,
effort or time required to perform a major life activity; pain
experienced when performing a major life activity; the length of time a
major life activity can be performed; or the way an impairment affects
the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side
effects of medication or burdens associated with following a particular
treatment regimen, may be considered when determining whether an
individual's impairment substantially limits a major life activity.
(iii) In determining whether an individual has a disability under
the ``actual disability'' or ``record of'' prongs of the definition of
``disability,'' the focus is on how a major life activity is
substantially limited, and not on what outcomes an individual can
achieve. For example, someone with a learning disability may achieve a
high level of academic success, but may nevertheless be substantially
limited in one or more major life activities, including, but not
limited to, reading, writing, speaking, or

[[Page 53225]]

learning because of the additional time or effort he or she must spend
to read, write, speak, or learn compared to most people in the general
population.
(iv) Given the rules of construction set forth in this section, it
may often be unnecessary to conduct an analysis involving most or all
of the facts related to condition, manner, or duration. This is
particularly true with respect to impairments such as those described
in paragraph (d)(2)(iii) of this section, which by their inherent
nature should be easily found to impose a substantial limitation on a
major life activity, and for which the individualized assessment should
be particularly simple and straightforward.
(4) Mitigating measures include, but are not limited to:
(i) Medication, medical supplies, equipment, appliances, low-vision
devices (defined as devices that magnify, enhance, or otherwise augment
a visual image, but not including ordinary eyeglasses or contact
lenses), prosthetics including limbs and devices, hearing aid(s) and
cochlear implant(s) or other implantable hearing devices, mobility
devices, and oxygen therapy equipment and supplies;
(ii) Use of assistive technology;
(iii) Reasonable modifications or auxiliary aids or services as
defined in this regulation;
(iv) Learned behavioral or adaptive neurological modifications; or
(v) Psychotherapy, behavioral therapy, or physical therapy.
(e) Has a record of such an impairment. (1) An individual has a
record of such an impairment if the individual has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(2) Broad construction. Whether an individual has a record of an
impairment that substantially limited a major life activity shall be
construed broadly to the maximum extent permitted by the ADA and should
not demand extensive analysis. An individual will be considered to fall
within this prong of the definition of ``disability'' if the individual
has a history of an impairment that substantially limited one or more
major life activities when compared to most people in the general
population, or was misclassified as having had such an impairment. In
determining whether an impairment substantially limited a major life
activity, the principles articulated in paragraph (d)(1) of this
section apply.
(3) Reasonable modification. An individual with a record of a
substantially limiting impairment may be entitled to a reasonable
modification if needed and related to the past disability.
(f) Is regarded as having such an impairment. The following
principles apply under the ``regarded'' as prong of the definition of
``disability'' (paragraph (a)(1)(iii) of this section):
(1) Except as set forth in paragraph (f)(2) of this section, an
individual is ``regarded as having such an impairment'' if the
individual is subjected to a prohibited action because of an actual or
perceived physical or mental impairment, whether or not that impairment
substantially limits, or is perceived to substantially limit, a major
life activity, even if the public entity asserts, or may or does
ultimately establish, a defense to the action prohibited by the ADA.
(2) An individual is not ``regarded as having such an impairment''
if the public entity demonstrates that the impairment is, objectively,
both ``transitory'' and ``minor.'' A public entity may not defeat
``regarded as'' coverage of an individual simply by demonstrating that
it subjectively believed the impairment was transitory and minor;
rather, the public entity must demonstrate that the impairment is (in
the case of an actual impairment) or would be (in the case of a
perceived impairment), objectively, both ``transitory'' and ``minor.''
For purposes of this section, ``transitory'' is defined as lasting or
expected to last six months or less.
(3) Establishing that an individual is ``regarded as having such an
impairment'' does not, by itself, establish liability. Liability is
established under title II of the ADA only when an individual proves
that a public entity discriminated on the basis of disability within
the meaning of title II of the ADA, 42 U.S.C. 12131-12134.
(g) Exclusions. The term ``disability'' does not include--
(1) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current
illegal use of drugs.

Subpart B--General Requirements

0
5. Amend Sec. 35.130 by revising paragraph (b)(7) and adding paragraph
(i) to read as follows:

Sec. 35.130 General prohibitions against discrimination.

* * * * *
(b) * * *
(7)(i) 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.
(ii) A public entity is not required to provide a reasonable
modification to an individual who meets the definition of
``disability'' solely under the ``regarded as'' prong of the definition
of ``disability'' at Sec. 35.108(a)(1)(iii).
* * * * *
(i) Nothing in this part shall provide the basis for a claim that
an individual without a disability was subject to discrimination
because of a lack of disability, including a claim that an individual
with a disability was granted a reasonable modification that was denied
to an individual without a disability.
* * * * *

0
6. Add Appendix C to part 35 to read as follows:

Appendix C to Part 35--Guidance to Revisions to ADA Title II and Title
III Regulations Revising the Meaning and Interpretation of the
Definition of ``Disability'' and Other Provisions in Order To
Incorporate the Requirements of the ADA Amendments Act

Note: This appendix contains guidance providing a section-by-
section analysis of the revisions to 28 CFR parts 35 and 36
published on August 11, 2016.

Guidance and Section-by-Section Analysis

This section provides a detailed description of the Department's
changes to the meaning and interpretation of the definition of
``disability'' in the title II and title III regulations, the
reasoning behind those changes, and responses to public comments
received on these topics. See Office of the Attorney General;
Amendment of Americans with Disabilities Act Title II and Title III
Regulations to Implement ADA Amendments Act of 2008, 79 FR 4839
(Jan. 30, 2014) (NPRM).

Sections 35.101 and 36.101--Purpose and Broad Coverage

Sections 35.101 and 36.101 set forth the purpose of the ADA
title II and title III regulations. In the NPRM, the Department
proposed revising these sections by adding references to the ADA
Amendments Act in renumbered Sec. Sec. 35.101(a) and 36.101(a) and
by adding new Sec. Sec. 35.101(b) and 36.101(b), which explain that
the ADA is intended to have broad coverage and that the definition
of ``disability'' shall be construed broadly. The proposed language
in paragraph (b) stated that the primary purpose of the ADA
Amendments Act is to make it easier for

[[Page 53226]]

people with disabilities to obtain protection under the ADA.
Consistent with the ADA Amendments Act's purpose of reinstating a
broad scope of protection under the ADA, the definition of
``disability'' in this part shall be construed broadly in favor of
expansive coverage to the maximum extent permitted by the terms of
the ADA. The primary object of attention in ADA cases should be
whether covered entities have complied with their obligations and
whether discrimination has occurred, not whether the individual
meets the definition of disability. The question of whether an
individual meets the definition of disability should not demand
extensive analysis.
Many commenters supported inclusion of this information as
reiterating the statutory language evincing Congress' intention ``to
restore a broad definition of `disability' under the ADA. . . .''
Several commenters asked the Department to delete the last sentence
in Sec. Sec. 35.101(b) and 36.101(b), arguing that inclusion of
this language is inconsistent with the individualized assessment
required under the ADA. Some of these commenters acknowledged,
however, that this language is drawn directly from the ``Purposes''
of the ADA Amendments Act. See Public Law 110-325, sec. 2(b)(5). The
Department declines to remove this sentence from the final rule. In
addition to directly quoting the statute, the Department believes
that this language neither precludes nor is inconsistent with
conducting an individualized assessment of whether an individual is
covered by the ADA.
Some commenters recommended that the Department add a third
paragraph to these sections expressly stating that ``not all
impairments are covered disabilities.'' These commenters contended
that ``[t]here is a common misperception that having a diagnosed
impairment automatically triggers coverage under the ADA.'' While
the Department does not agree that such a misperception is common,
it agrees that it would be appropriate to include such a statement
in the final rule, and has added it to the rules of construction
explaining the phrase ``substantially limits'' at Sec. Sec.
35.108(d)(1)(v) and 36.105(d)(1)(v).

Sections 35.104 and 36.104--Definitions

The current title II and title III regulations include the
definition of ``disability'' in regulatory sections that contain all
enumerated definitions in alphabetical order. Given the expanded
length of the definition of ``disability'' and the number of
additional subsections required in order to give effect to the
requirements of the ADA Amendments Act, the Department, in the NPRM,
proposed moving the definition of ``disability'' from the general
definitional sections at Sec. Sec. 35.104 and 36.104 to a new
section in each regulation, Sec. Sec. 35.108 and 36.105,
respectively.
The Department received no public comments in response to this
proposal and the definition of ``disability'' remains in its own
sections in the final rule.

Sections 35.108(a)(1) and 36.105(a)(1) Definition of
``disability''--General

In the ADA, Congress originally defined ``disability'' as ``(A)
a physical or mental impairment that substantially limits one or
more major life activities of an individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.''
Public Law 101-336, sec. 3 (1990). This three-part definition--the
``actual,'' ``record of,'' and ``regarded as'' prongs--was modeled
after the definition of ``handicap'' found in the Rehabilitation Act
of 1973. H.R. Rep. No. 110-730, pt. 2, at 6 (2008). The Department's
1991 title II and title III ADA regulations reiterate this three-
part basic definition as follows:
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.

56 FR 35694, 35717 (July 26, 1991); 56 FR 35544, 35548 (July 26,
1991).
While the ADA Amendments Act did not amend the basic structure
or terminology of the original statutory definition of
``disability,'' the Act revised the third prong to incorporate by
reference two specific provisions construing this prong. 42 U.S.C.
12102(3)(A)-(B). The first statutory provision clarified the scope
of the ``regarded as'' prong by explaining that ``[a]n individual
meets the requirement of `being regarded as having such an
impairment' if the individual establishes that he or she has been
subjected to an action prohibited under this chapter because of an
actual or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.''
42 U.S.C. 12102(3)(A). The second statutory provision provides an
exception to the ``regarded as'' prong for impairments that are both
transitory and minor. A transitory impairment is defined as ``an
impairment with an actual or expected duration of 6 months or
less.'' 42 U.S.C. 12102(3)(B). In the NPRM, the Department proposed
revising the ``regarded as'' prong in Sec. Sec. 35.108(a)(1)(iii)
and 36.105(a)(1)(iii) to reference the regulatory provisions that
implement 42 U.S.C. 12102(3). The NPRM proposed, at Sec. Sec.
35.108(f) and 36.105(f), that ``regarded as'' having an impairment
would mean that the individual has been subjected to an action
prohibited by the ADA because of an actual or perceived impairment
that is not both ``transitory and minor.''
The first proposed sentence directed that the meaning of the
``regarded as prong'' shall be understood in light of the
requirements in Sec. Sec. 35.108(f) and 36.105(f). The second
proposed sentence merely provided a summary restatement of the
requirements of Sec. Sec. 35.108(f) and 36.105(f). The Department
received no comments in response to this proposed language. Upon
consideration, however, the Department decided to retain the first
proposed sentence but omit the second as superfluous. Because the
first sentence explicitly incorporates and directs the public to the
requirements set out in Sec. Sec. 35.108(f) and 36.105(f), the
Department believes that summarizing those requirements here is
unnecessary. Accordingly, in the final rule, Sec. Sec.
35.108(a)(1)(iii) and 36.105(a)(1)(iii) simply reference paragraph
(f) of the respective section. See also, discussion in the Guidance
and Section-by-Section analysis of Sec. Sec. 35.108(f) and
36.105(f), below.

Sections 35.108(a)(2) and 36.105(a)(2) Definition of
``disability''--Rules of Construction

In the NPRM, the Department proposed Sec. Sec. 35.108(a)(2) and
36.105(a)(2), which set forth rules of construction on how to apply
the definition of ``disability.'' Proposed Sec. Sec.
35.108(a)(2)(i) and 36.105(a)(2)(i) state that an individual may
establish coverage under any one or more of the prongs in the
definition of ``disability''--the ``actual disability'' prong in
paragraph (a)(1)(i), the ``record of'' prong in paragraph (a)(1)(ii)
or the ``regarded as'' prong in paragraph (a)(1)(iii). See
Sec. Sec. 35.108(a)(1)(i) through (iii); 36.105(a)(1)(i) through
(iii). The NPRM's inclusion of rules of construction stemmed
directly from the ADA Amendments Act, which amended the ADA to
require that the definition of ``disability'' be interpreted in
conformance with several specific directives and an overarching
mandate to ensure ``broad coverage . . . to the maximum extent
permitted by the terms of [the ADA].'' 42 U.S.C. 12102(4)(A).
To be covered under the ADA, an individual must satisfy only one
prong. The term ``actual disability'' is used in these rules of
construction as shorthand terminology to refer to an impairment that
substantially limits a major life activity within the meaning of the
first prong of the definition of ``disability.'' See Sec. Sec.
35.108(a)(1)(i); 36.105(a)(1)(i). The terminology selected is for
ease of reference. It is not intended to suggest that an individual
with a disability who is covered under the first prong has any
greater rights under the ADA than an individual who is covered under
the ``record of'' or ``regarded as'' prongs, with the exception that
the ADA Amendments Act revised the ADA to expressly state that an
individual who meets the definition of ``disability'' solely under
the ``regarded as'' prong is not entitled to reasonable
modifications of policies, practices, or procedures. See 42 U.S.C.
12201(h).
Proposed Sec. Sec. 35.108(a)(2)(ii) and 36.105(a)(2)(ii) were
intended to incorporate Congress's expectation that consideration of
coverage under the ``actual disability'' and ``record of
disability'' prongs of the definition of ``disability'' will
generally be unnecessary except in cases involving requests for
reasonable modifications. See 154 Cong. Rec. H6068 (daily ed. June
25, 2008) (joint statement of Reps. Steny Hoyer and Jim
Sensenbrenner). Accordingly, these provisions state that, absent a
claim that a covered entity has failed to provide reasonable
modifications, typically it is not necessary to rely on the ``actual
disability'' or ``record of'' disability prongs. Instead, in such
cases, the coverage can be evaluated exclusively under the
``regarded as'' prong,'' which does not require a showing of an
impairment that substantially limits a major life activity or a
record of such an impairment. Whether or not an individual is
challenging a covered entity's failure to provide reasonable
modifications, the

[[Page 53227]]

individual may nevertheless proceed under the ``actual disability''
or ``record of'' prong. The Department notes, however, that where an
individual is challenging a covered entity's failure to provide
effective communication, that individual cannot rely solely on the
``regarded as prong'' because the entitlement to an auxiliary aid or
service is contingent on a disability-based need for the requested
auxiliary aid or service. See 28 CFR 35.160(b), 28 CFR 36.303(c).
The Department received no comments objecting to these proposed
rules of construction. The final rule retains these provisions but
renumbers them as paragraphs (ii) and (iii) of Sec. Sec.
35.108(a)(2) and 36.105(a)(2) and replaces the reference to
``covered entity'' in the title III regulatory text with ``public
accommodation.''
The Department has added a third rule of construction at the
beginning of Sec. Sec. 35.108(a)(2) and 36.105(a)(2), numbered
Sec. Sec. 35.108(a)(2)(i) and 36.105(a)(2)(i). Closely tracking the
amended statutory language, these provisions state that ``[t]he
definition of disability shall be construed broadly in favor of
expansive coverage, to the maximum extent permitted by the terms of
the ADA.'' See 42 U.S.C. 12102(4)(A). This principle is referenced
in other portions of the final rule, but the Department believes it
is important to include here underscore Congress's intent that it be
applied throughout the determination of whether an individual falls
within the ADA definition of ``disability.''

Sections 35.108(b) and 36.105(b)--Physical or Mental Impairment

The ADA Amendments Act did not change the meaning of the term
``physical or mental impairment.'' Thus, in the NPRM, the Department
proposed only minor modifications to the general regulatory
definitions for this term at Sec. Sec. 35.108(b)(1)(i) and
36.105(b)(1)(i) by adding examples of two additional body systems--
the immune system and the circulatory system--that may be affected
by a physical impairment.
In addition, the Department proposed adding ``dyslexia'' to
Sec. Sec. 35.108(b)(2) and 36.105(b)(2) as an example of a specific
learning disability that falls within the meaning of the phrase
``physical or mental impairment.'' Although dyslexia is a specific
diagnosable learning disability that causes difficulties in reading,
unrelated to intelligence and education, the Department became aware
that some covered entities mistakenly believe that dyslexia is not a
clinically diagnosable impairment. Therefore, the Department sought
public comment regarding its proposed inclusion of a reference to
dyslexia in these sections.
The Department received a significant number of comments in
response to this proposal. Many commenters supported inclusion of
the reference to dyslexia. Some of these commenters also asked the
Department to include other examples of specific learning
disabilities such as dysgraphia \1\ and dyscalculia.\2\ Several
commenters remarked that as ``research and practice bear out,
dyslexia is just one of the specific learning disabilities that
arise from `neurological differences in brain structure and function
and affect a person's ability to receive, store, process, retrieve
or communicate information.' '' These commenters identified the most
common specific learning disabilities as: ``Dyslexia, dysgraphia,
dyscalculia, auditory processing disorder, visual processing
disorder and non-verbal learning disabilities,'' and recommended
that the Department rephrase its reference to specific learning
disabilities to make clear that there are many other specific
learning disabilities besides dyslexia. The Department has
considered all of these comments and has decided to use the phrase
``dyslexia and other specific learning disabilities'' in the final
rule.
---------------------------------------------------------------------------

\1\ Dysgraphia is a learning disability that negatively affects
the ability to write.
\2\ Dyscalculia is a learning disability that negatively affects
the processing and learning of numerical information.
---------------------------------------------------------------------------

Another commenter asked the Department to add a specific
definition of dyslexia to the regulatory text itself. The Department
declines to do so as it does not give definitions for any other
physical or mental impairment in the regulations.
Other commenters recommended that the Department add ADHD to the
list of examples of ``physical or mental impairments'' in Sec. Sec.
35.108(b)(2) and 36.105(b)(2).\3\ Some commenters stated that ADHD,
which is not a specific learning disability, is a very commonly
diagnosed impairment that is not always well understood. These
commenters expressed concern that excluding ADHD from the list of
physical and mental impairments could be construed to mean that ADHD
is less likely to support an assertion of disability as compared to
other impairments. On consideration, the Department agrees that, due
to the prevalence of ADHD but lack of public understanding of the
condition, inclusion of ADHD among the examples set forth in
Sec. Sec. 35.108(b)(2) and 36.105(b)(2) will provide appropriate
and helpful guidance to the public.
---------------------------------------------------------------------------

\3\ The Department is using the term ADHD in the same manner as
it is currently used in the Diagnostic and Statistical Manual of
Mental Disorders: Fifth Edition (DSM-5), to refer to three different
presentations of symptoms: Predominantly inattentive (which was
previously known as ``attention deficit disorder); predominantly
hyperactive or impulsive; or a combined presentation of inattention
and hyperactivity-impulsivity. The DSM-5 is the most recent edition
of a widely-used manual designed to assist clinicians and
researchers in assessing mental disorders. See Diagnostic and
Statistical Manual of Mental Disorders: Fifth Edition DSM-5,
American Psychiatric Association, at 59-66 (2013).
---------------------------------------------------------------------------

Other commenters asked the Department to include arthritis,
neuropathy, and other examples of physical or mental impairments
that could substantially impair a major life activity. The
Department declines to add any other examples because, while it
notes the value in clarifying the existence of impairments such as
ADHD, it also recognizes that the regulation need not elaborate an
inclusive list of all impairments, particularly those that are very
prevalent, such as arthritis, or those that may be symptomatic of
other underlying impairments already referenced in the list, such as
neuropathy, which may be caused by cancer or diabetes. The list is
merely illustrative and not exhaustive. The regulations clearly
state that the phrase ``physical or mental impairment'' includes,
but is not limited to'' the examples provided. No negative
implications should be drawn from the omission of any specific
impairment in Sec. Sec. 35.108(b) and 36.105(b).
The Department notes that it is important to distinguish between
conditions that are impairments and physical, environmental,
cultural, or economic characteristics that are not impairments. The
definition of the term ``impairment'' does not include physical
characteristics such as eye color, hair color, or left-handedness,
or height, weight, or muscle tone that are within ``normal'' range.
Moreover, conditions that are not themselves physiological
disorders, such as pregnancy, are not impairments. However, even if
an underlying condition or characteristic is not itself a physical
or mental impairment, it may give rise to a physical or mental
impairment that substantially limits a major life activity. In such
a case, an individual would be able to establish coverage under the
ADA. For example, while pregnancy itself is not an impairment, a
pregnancy-related impairment that substantially limits a major life
activity will constitute a disability under the first prong of the
definition.\4\ Major life activities that might be substantially
limited by pregnancy-related impairments could include walking,
standing, and lifting, as well as major bodily functions such as the
musculoskeletal, neurological, cardiovascular, circulatory,
endocrine, and reproductive functions. Alternatively, a pregnancy-
related impairment may constitute a ``record of'' a substantially
limiting impairment, or may be covered under the ``regarded as''
prong if it is the basis for a prohibited action and is not both
``transitory and minor.''
---------------------------------------------------------------------------

\4\ Pregnancy-related impairments may include, but are not
limited to: Disorders of the uterus and cervix, such as insufficient
cervix or uterine fibroids; and pregnancy-related anemia, sciatica,
carpal tunnel syndrome, gestational diabetes, nausea, abnormal heart
rhythms, limited circulation, or depression. See EEOC Enforcement
Guidance on Pregnancy Discrimination and Related Issues, EEOC Notice
915.003, June 25, 2015, available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (last visited Feb. 3, 2016).
---------------------------------------------------------------------------

Sections 35.108(c) and 36.105(c)--Major Life Activities

Prior to the passage of the ADA Amendments Act, the ADA did not
define ``major life activities,'' leaving delineation of
illustrative examples to agency regulations. Paragraph 2 of the
definition of ``disability'' in the Department's current title II
and title III regulations at 28 CFR 35.104 and 36.104 states that
``major life activities'' means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
The ADA Amendments Act significantly expanded the range of major
life activities by directing that ``major'' be interpreted in a more
expansive fashion, by adding a significant new category of major
life activities, and by providing non-exhaustive

[[Page 53228]]

lists of examples of major life activities. The amended statute's
first list of major life activities includes, but is not limited to,
``caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking,
communicating, and working.'' 42 U.S.C. 12102(2)(A). The ADA
Amendments Act also broadened the definition of ``major life
activity'' to include physical or mental impairments that
substantially limit the operation of a ``major bodily function,''
which include, but are not limited to, the ``functions of the immune
system, normal cell growth, digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine, and reproductive
functions.'' 42 U.S.C. 12102(2)(B). These expanded lists of examples
of major life activities reflect Congress's directive to expand the
meaning of the term ``major'' in response to court decisions that
interpreted the term more narrowly than Congress intended. See
Public Law 110-25, sec. 3 (b)(4).

Examples of Major Life Activities, Other Than the Operations of a
Major Bodily Function

In the NPRM, at Sec. Sec. 35.108(c) and 36.105(c), the
Department proposed revisions of the title II and title III lists of
examples of major life activities (other than the operations of a
major bodily function) to incorporate all of the statutory examples,
as well as to provide additional examples included in the EEOC title
I final regulation--reaching, sitting, and interacting with others.
See 29 CFR 1630.2(i)(1)(i).
A number of commenters representing persons with disabilities or
the elderly recommended that the Department add a wide variety of
other activities to this first list. Some commenters asked the
Department to include references to test taking, writing, typing,
keyboarding, or executive function.\5\ Several commenters asked the
Department to include other activities as well, such as the ability
to engage in sexual activity, perform mathematical calculations,
travel, or drive. One commenter asked the Department to recognize
that, depending upon where people live, other life activities may
fall within the category of major life activities. This commenter
asserted, for example, that tending livestock or operating farm
equipment can be a major life activity in a farming or ranching
community, and that maintaining septic, well or water systems, or
gardening, composting, or hunting may be a major life activity in a
rural community.
---------------------------------------------------------------------------

\5\ ``Executive function'' is an umbrella term that has been
described as referring to ``a constellation of cognitive abilities
that include the ability to plan, organize, and sequence tasks and
manage multiple tasks simultaneously.'' See, e.g. National Institute
of Neurological Disorders and Stroke, Domain Specific Tasks of
Executive Functions, available at grants.nih.gov/grants/guide/notice-files/NOT-NS-04-012.html (last visited Feb. 3, 2016).
---------------------------------------------------------------------------

On consideration of the legislative history and the relevant
public comments, the Department decided to include ``writing'' as an
additional example in its non-exhaustive list of examples of major
life activities in the final rule. The Department notes Congress
repeatedly stressed that writing is one of the major life activities
that is often affected by a covered learning disability. See, e.g.,
154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the
Managers); H.R. Rep. No. 110-730 pt. 1, at 10-11 (2008).
Other than ``writing,'' the Department declines to add
additional examples of major life activities to these provisions in
the final rule. This list is illustrative, and the Department
believes that it is neither necessary nor possible to list every
major life activity. Moreover, the Department notes that many of the
commenters' suggested inclusions implicate life activities already
included on the list. For example, although, as commenters pointed
out, some courts have concluded that test taking is a major life
activity,\6\ the Department notes that one or more already-included
major life activities--such as reading, writing, concentrating, or
thinking, among others--will virtually always be implicated in test
taking. Similarly, activities such as operating farm equipment, or
maintaining a septic or well system, implicate already-listed major
life activities such as reaching, lifting, bending, walking,
standing, and performing manual tasks.
---------------------------------------------------------------------------

\6\ In Bartlett v. N.Y. State Bd. of Law Exam'rs, 970 F. Supp.
1094, 1117 (S.D.N.Y. 1997), aff'd in part and vacated in part, 156
F.3d 321 (2d Cir. 1998), cert. granted, judgment vacated on other
grounds, 527 U.S. 1031 (1999), and aff'd in part, vacated in part,
226 F.3d 69 (2d Cir. 2000), then-Judge Sotomayor stated, ``[I]n the
modern era, where test-taking begins in the first grade, and
standardized tests are a regular and often life-altering occurrence
thereafter, both in school and at work, I find test-taking is within
the ambit of `major life activity.' '' See also Rawdin v. American
Bd. of Pediatrics, 985 F. Supp. 2d 636 (E.D. Pa. 2013), aff'd. on
other grounds, 2014 U.S. App. LEXIS 17002 (3d Cir. Sept. 3, 2014).
---------------------------------------------------------------------------

The commenters' suggested additions also implicate the
operations of various bodily systems that may already be recognized
as major life activities. See discussion of Sec. Sec.
35.108(c)(1)(ii) and 36.105(c)(1)(ii), below. For example, it is the
Department's view that individuals who have cognitive or other
impairments that affect the range of abilities that are often
described as part of ``executive function'' will likely be able to
assert that they have impairments that substantially limit brain
function, which is one of the major bodily functions listed among
the examples of major life activities.

Examples of Major Life Activities--Operations of a Major Bodily
Function

In the NPRM, the Department proposed revising the regulatory
definitions of disability at Sec. Sec. 35.108(c)(1)(ii) and
36.105(c)(1)(ii) to make clear that the operations of major bodily
functions are major life activities, and to include a non-exhaustive
list of examples of major bodily functions, consistent with the
language of the ADA as amended. Because the statutory list is non-
exhaustive, the Department also proposed further expanding the list
to include the following examples of major bodily functions: The
functions of the special sense organs and skin, genitourinary,
cardiovascular, hemic, lymphatic, and musculoskeletal systems. These
six major bodily functions also are specified in the EEOC title I
final regulation. 29 CFR 1630.2(i)(1)(i).
One commenter objected to the Department's inclusion of
additional examples of major life activities in both these lists,
suggesting that the Department include only those activities and
conditions specifically set forth in the ADA as amended. The
Department believes that providing other examples of major life
activities, including major bodily functions, is within the Attorney
General's authority to both interpret titles II and III of the ADA
and promulgate implementing regulations and that these examples
provide helpful guidance to the public. Therefore, the Department
declines to limit its lists of major life activities to those
specified in the statute. Further, the Department notes that even
the expanded lists of major life activities and major bodily
functions are illustrative and non-exhaustive. The absence of a
particular life activity or bodily function from the list should not
create a negative implication as to whether such activity or
function constitutes a major life activity under the statute or the
implementing regulation.

Rules of Construction for Major Life Activities

In the NPRM, proposed Sec. Sec. 35.108(c)(2) and 36.105(c)(2)
set out two specific principles applicable to major life activities:
``[i]n determining other examples of major life activities, the term
`major' shall not be interpreted strictly to create a demanding
standard for disability,'' and ``[w]hether an activity is a `major
life activity' is not determined by reference to whether it is of
`central importance to daily life.' '' The proposed language
furthered a main purpose of the ADA Amendments Act--to reject the
standards enunciated by the Supreme Court in Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams that (1) strictly
interpreted the terms ``substantially'' and ``major'' in the
definition of ``disability'' to create a demanding standard for
qualifying as disabled under the ADA, and that (2) required an
individual to have an impairment that prevents or severely restricts
the individual from doing activities that are of central importance
to most people's daily lives to be considered as ``substantially
limited'' in performing a major life activity under the ADA. Public
Law 110-325, sec. 2(b)(4).
The Department did not receive any comments objecting to its
proposed language. In the final rule, the Department retained these
principles but has numbered each principle individually and deemed
them ``rules of construction'' because they are intended to inform
the determination of whether a particular activity is a major life
activity.

Sections 35.108(d)(1) and 36.105(d)(1)--Substantially Limits

Overview. The ADA as amended directs that the term
``substantially limits'' shall be ``interpreted consistently with
the findings and purposes of the ADA Amendments Act.'' 42 U.S.C.
12102(4)(B). See also Findings and Purposes of the ADA Amendments
Act, Public Law 110-325, sec. 2(a)-(b). In the

[[Page 53229]]

NPRM, the Department proposed to add nine rules of construction at
Sec. Sec. 35.108(d) and 36.105(d) clarifying how to interpret the
meaning of ``substantially limits'' when determining whether an
individual's impairment substantially limits a major life activity.
These rules of construction are based on the requirements of the ADA
as amended and the clear mandates of the legislative history. Due to
the insertion of the rules of construction, these provisions are
renumbered in the final rule.

Sections 35.108(d)(1)(i) and 36.105(d)(1)(i)--Broad Construction,
Not a Demanding Standard

In accordance with Congress's overarching directive to construe
the term ``disability'' broadly, see 42 U.S.C. 12102(4)(A), the
Department, in its NPRM, proposed Sec. Sec. 35.108(d)(1)(i) and
36.105(d)(1)(i), which state: ``The term `substantially limits'
shall be construed broadly in favor of expansive coverage, to the
maximum extent permitted by the terms of the ADA.'' These provisions
are also rooted in the Findings and Purposes of the ADA Amendments
Act, in which Congress instructed that ``the question of whether an
individual's impairment is a disability under the ADA should not
demand extensive analysis.'' See Public Law 110-325, sec. 2(b)(1),
(4)-(5).
Several commenters on these provisions supported the
Department's proposal to include these rules of construction, noting
that they were in keeping with both the statutory language and
Congress's intent to broaden the definition of ``disability'' and
restore expansive protection under the ADA. Some of these commenters
stated that, even after the passage of the ADA Amendments Act, some
covered entities continued to apply a narrow definition of
``disability.''
Other commenters expressed concerns that the proposed language
would undermine congressional intent by weakening the meaning of the
word ``substantial.'' One of these commenters asked the Department
to define the term ``substantially limited'' to include an element
of materiality, while other commenters objected to the breadth of
these provisions and argued that it would make the pool of people
who might claim disabilities too large, allowing those without
substantial limitations to be afforded protections under the law.
Another commenter expressed concern about the application of the
regulatory language to the diagnosis of learning disabilities and
ADHD.
The Department considered all of these comments and declines to
provide a definition of the term ``substantially limits'' or make
any other changes to these provisions in the final rule. The
Department notes that Congress considered and expressly rejected
including language defining the term ``substantially limits'': ``We
have concluded that adopting a new, undefined term that is subject
to widely disparate meanings is not the best way to achieve the goal
of ensuring consistent and appropriately broad coverage under this
Act. The resulting need for further judicial scrutiny and
construction will not help move the focus from the threshold issue
of disability to the primary issue of discrimination.'' 154 Cong.
Rec. S8441. (daily ed. Sept. 16, 2008) (Statement of the Managers).
The Department believes that the nine rules of construction
interpreting the term ``substantially limits'' provide ample
guidance on determining whether an impairment substantially limits a
major life activity and are sufficient to ensure that covered
entities will be able to understand and apply Congress's intentions
with respect to the breadth of the definition of ``disability.''
Moreover, the commenters' arguments that these provisions would
undermine congressional intent are unsupported. To the contrary,
Congress clearly intended the ADA Amendments Act to expand coverage:
``The managers have introduced the ADA Amendments Act of 2008 to
restore the proper balance and application of the ADA by clarifying
and broadening the definition of disability, and to increase
eligibility for the protections of the ADA. It is our expectation
that because this bill makes the definition of disability more
generous, some people who were not covered before will now be
covered.'' 154 Cong. Rec. S8441 (daily ed. Sept. 16, 2008)
(Statement of the Managers).
The Department has also considered the comments expressed about
the interplay between the proposed regulatory language and the
diagnosis of learning disabilities and ADHD disorders. The
Department believes that the revised definition of ``disability,''
including, in particular, the provisions construing ``substantially
limits,'' strikes the appropriate balance to effectuate Congress's
intent when it passed the ADA Amendments Act, and will not modify
its regulatory language in response to these comments.

Sections 35.108(d)(1)(ii) and 36.105(d)(1)(ii)--Primary Object of
ADA Cases

In the ADA Amendments Act, Congress directed that rules of
construction should ensure that ``substantially limits'' is
construed in accordance with the findings and purposes of the
statute. See 42 U.S.C. 12102(4)(B). One of the purposes of the Act
was to convey that ``the primary object of attention in cases
brought under the ADA should be whether entities covered under the
ADA have complied with the obligations and to convey that the
question of whether an individuals' impairment is a disability
should not demand extensive analysis.'' Public Law 110-325, sec.
2(b)(5). The legislative history clarifies that: ``Through this
broad mandate [of the ADA], Congress sought to protect anyone who is
treated less favorably because of a current, past, or perceived
disability. Congress did not intend for the threshold question of
disability to be used as a means of excluding individuals from
coverage. Nevertheless, as the courts began interpreting and
applying the definition of disability strictly, individuals have
been excluded from the protections that the ADA affords because they
are unable to meet the demanding judicially imposed standard for
qualifying as disabled.''). H.R. Rep. No. 110-730, pt. 2, at 5
(2008) (House Committee on the Judiciary).
In keeping with Congress's intent and the language of the ADA
Amendments Act, the rules of construction at proposed Sec. Sec.
35.108(d)(1)(iii) and 36.105(d)(1)(iii) make clear that the primary
object of attention in ADA cases should be whether public or other
covered entities have complied with their obligations and whether
discrimination has occurred, not the extent to which an individual's
impairment substantially limits a major life activity. In
particular, the threshold issue of whether an impairment
substantially limits a major life activity should not demand
extensive analysis.
A number of commenters expressed support for these rules of
construction, noting that they reinforced Congress's intent in
ensuring that the primary focus will be on compliance. Several
commenters objected to the use of the word ``cases'' in these
provisions, stating that it lacked clarity. The word ``cases''
tracks the language of the ADA Amendments Act and the Department
declines to change the term.
A few commenters objected to these provisions because they
believed that the language would be used to supersede or otherwise
change the required analysis of requests for reasonable
modifications or testing accommodations. See 28 CFR 35.130(b)(7),
36.302, 36.309. The Department disagrees with these commenters.
These rules of construction relate only to the determination of
coverage under the ADA. They do not change the analysis of whether a
discriminatory act has taken place, including the determination as
to whether an individual is entitled to a reasonable modification or
testing accommodation. See discussion of Sec. Sec.
35.108(d)(1)(vii) and 36.105(d)(1)(vii) below.
The Department retained the language of these rules of
construction in the final rule except that in the title III
regulatory text it has changed the reference from ``covered entity''
to ``public accommodation.'' The Department also renumbered these
provisions as Sec. Sec. 35.108(d)(1)(ii) and 36.105(d)(1)(ii).

Sections 35.108(d)(1)(iii) and 36.105(d)(1)(iii)--Impairment Need
Not Substantially Limit More Than One Major Life Activity

Proposed Sec. Sec. 35.108(d)(1)(viii) and 36.105(d)(1)(viii)
stated that ``[a]n impairment that substantially limits one major
life activity need not substantially limit other major life
activities in order to be considered a substantially limiting
impairment.'' See 42 U.S.C. 12102(4)(C). This language reflected the
statutory intent to reject court decisions that had required
individuals to show that an impairment substantially limits more
than one major life activity. See 154 Cong. Rec. S8841-44 (daily ed.
Sept. 16, 2008) (Statement of the Managers). Applying this
principle, for example, an individual seeking to establish coverage
under the ADA need not show a substantial limitation in the ability
to learn if that individual is substantially limited in another
major life activity, such as walking, or the functioning of the
nervous or endocrine systems. The proposed rule also was intended to
clarify that the ability to perform one or more particular tasks
within a broad category of activities does not

[[Page 53230]]

preclude coverage under the ADA. See H.R. Rep. No. 110-730, pt. 2,
at 19 & n.52 (2008) (House Committee on the Judiciary). For
instance, an individual with cerebral palsy could have a capacity to
perform certain manual tasks yet nonetheless show a substantial
limitation in the ability to perform a ``broad range'' of manual
tasks.
The Department received one comment specifically supporting this
provision and none opposing it. The Department is retaining this
language in the final rule although it is renumbered and is found at
Sec. Sec. 35.108(d)(1)(iii) and 36.105(d)(1)(iii).

Sections 35.108(d)(1)(iv) and 36.105(d)(1)(iv)--Impairments That
Are Episodic or in Remission

The ADA as amended provides that ``an impairment that is
episodic or in remission is a disability if it would substantially
limit a major life activity when active.''
42 U.S.C. 12102(4)(D). In the NPRM, the Department proposed
Sec. Sec. 35.108(d)(1)(vii) and 36.105(d)(1)(vii) to directly
incorporate this language. These provisions are intended to reject
the reasoning of court decisions concluding that certain individuals
with certain conditions--such as epilepsy or post traumatic stress
disorder--were not protected by the ADA because their conditions
were episodic or intermittent. The legislative history provides that
``[t]his . . . rule of construction thus rejects the reasoning of
the courts in cases like Todd v. Academy Corp.
[57 F. Supp. 2d 448, 453 (S.D. Tex. 1999)] where the court found
that the plaintiff's epilepsy, which resulted in short seizures
during which the plaintiff was unable to speak and experienced
tremors, was not sufficiently limiting, at least in part because
those seizures occurred episodically. It similarly rejects the
results reached in cases [such as Pimental v. Dartmouth-Hitchcock
Clinic, 236 F. Supp. 2d 177, 182-83 (D.N.H. 2002)] where the courts
have discounted the impact of an impairment [such as cancer] that
may be in remission as too short-lived to be substantially limiting.
It is thus expected that individuals with impairments that are
episodic or in remission (e.g., epilepsy, multiple sclerosis,
cancer) will be able to establish coverage if, when active, the
impairment or the manner in which it manifests (e.g., seizures)
substantially limits a major life activity.'' H.R. Rep. No. 110-730,
pt. 2, at 19-20 (2008) (House Committee on the Judiciary).
Some examples of impairments that may be episodic include
hypertension, diabetes, asthma, major depressive disorder, bipolar
disorder, and schizophrenia. The fact that the periods during which
an episodic impairment is active and substantially limits a major
life activity may be brief or occur infrequently is no longer
relevant to determining whether the impairment substantially limits
a major life activity. For example, a person with post-traumatic
stress disorder who experiences intermittent flashbacks to traumatic
events is substantially limited in brain function and thinking.
The Department received three comments in response to these
provisions. Two commenters supported this provision and one
commenter questioned about how school systems should provide
reasonable modifications to students with disabilities that are
episodic or in remission. As discussed elsewhere in this guidance,
the determination of what is an appropriate modification is separate
and distinct from the determination of whether an individual is
covered by the ADA, and the Department will not modify its
regulatory language in response to this comment.

Sections 35.108(d)(1)(v) and 36.105(d)(1)(v)--Comparisons to Most
People in the Population, and Impairment Need Not Prevent or
Significantly or Severely Restrict a Major Life Activity

In the legislative history of the ADA Amendments Act, Congress
explicitly recognized that it had always intended that
determinations of whether an impairment substantially limits a major
life activity should be based on a comparison to most people in the
population. The Senate Managers Report approvingly referenced the
discussion of this requirement in the committee report from 1989.
See 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of
the Managers) (citing S. Rep. No. 101-116, at 23 (1989)). The
preamble to the Department's 1990 title II and title III regulations
also referenced that the impact of an individual's impairment should
be based on a comparison to most people. See 56 FR 35694, 35699
(July 26, 1991).
Consistent with its longstanding intent, Congress directed, in
the ADA Amendments Act, that disability determinations ``should not
demand extensive analysis'' and that impairments do not need to rise
to the level of ``prevent[ing] or severely restrict[ing] the
individual from doing activities that are of central importance to
most people's daily lives.'' See Public Law 110-325, sec. 2(b)(4)-
(5). In giving this direction, Congress sought to correct the
standard that courts were applying to determinations of disability
after Toyota, which had created ``a situation in which physical or
mental impairments that would previously have been found to
constitute disabilities are not considered disabilities under the
Supreme Court's narrower standard.'' 154 Cong. Rec. S8840-8841
(daily ed. Sept. 16, 2008) (Statement of the Managers). The ADA
Amendments Act thus abrogates Toyota's holding by mandating that
``substantially limited'' must no longer create ``an inappropriately
high level of limitation.'' See Public Law 110-325, sec. 2(b)(4)-(5)
and 42 U.S.C. 12102(4)(B). For example, an individual with carpal
tunnel syndrome, a physical impairment, can demonstrate that the
impairment substantially limits the major life activity of writing
even if the impairment does not prevent or severely restrict the
individual from writing.
Accordingly, proposed Sec. Sec. 35.108(d)(1)(ii) and
36.105(d)(1)(ii) state that an impairment is a disability if it
substantially limits the ability of an individual to perform a major
life activity as compared to most people in the general population.
However, an impairment does not need to prevent, or significantly or
severely restrict, an individual from performing a major life
activity in order to be substantially limiting. The proposed
language in the NPRM was rooted in the corrective nature of the ADA
Amendments Act and its explicit rejection of the strict standards
imposed under Toyota and its progeny. See Public Law 110-325, sec.
2(b)(4).
The Department received several comments on these provisions,
none of which recommended modification of the regulatory language. A
few commenters raised concerns that are further addressed in the
``Condition, manner, or duration'' section below, regarding the
Department's inclusion in the NPRM preamble of a reference to
possibly using similarly situated individuals as the basis of
comparison. The Department has removed this discussion and clarified
that it does not endorse reliance on similarly situated individuals
to demonstrate substantial limitations. For example, the Department
recognizes that when determining whether an elderly person is
substantially limited in a major life activity, the proper
comparison is most people in the general population, and not
similarly situated elderly individuals. Similarly, someone with ADHD
should be compared to most people in the general population, most of
whom do not have ADHD. Other commenters expressed interest in the
possibility that, in some cases, evidence to support an assertion
that someone has an impairment might simultaneously be used to
demonstrate that the impairment is substantially limiting. These
commenters approvingly referenced the EEOC's interpretive guidance
for its ADA Amendments Act regulation, which provided an example of
an individual with a learning disability. See 76 FR 16978, 17009
(Mar. 25, 2011). In that example, evidence gathered to demonstrate
the impairment of a learning disability showed a discrepancy between
the person's age, measured intelligence, and education and that
person's actual versus expected achievement. The EEOC noted that
such individuals also likely would be able to demonstrate
substantial limitations caused by that impairment to the major life
activities of learning, reading, or thinking, when compared to most
people in the general population, especially when the ameliorative
effects of mitigating measures were set aside. The Department
concurs with this view.
Finally, the Department added an explicit statement recognizing
that not every impairment will constitute a disability within the
meaning of the section. This language echoes the Senate Statement of
Managers, which clarified that: ``[N]ot every individual with a
physical or mental impairment is covered by the first prong of the
definition of disability in the ADA. An impairment that does not
substantially limit a major life activity is not a disability under
this prong.'' 154 Cong. Rec. S8841 (daily ed. Sept. 16, 2008)
(Statement of the Managers).

Sections 35.108(d)(1)(vi) and 36.105(d)(1)(vi)--``Substantially
Limits'' Shall Be Interpreted To Require a Lesser Degree of
Functional Limitation Than That Required Prior to the ADA
Amendments Act

In the NPRM, proposed Sec. Sec. 35.108(d)(1)(iv) and
36.105(d)(1)(iv) state that determining

[[Page 53231]]

whether an impairment substantially limits a major life activity
requires an individualized assessment. But, the interpretation and
application of the term ``substantially limits'' for this assessment
requires a lower degree of functional limitation than the standard
applied prior to the ADA Amendments Act.
These rules of construction reflect Congress's concern that
prior to the adoption of the ADA Amendments Act, courts were using
too high a standard to determine whether an impairment substantially
limited a major life activity. See Public Law 110-325, sec. 2(b)(4)-
(5); see also 154 Cong. Rec. S8841 (daily ed. Sept. 16, 2008)
(Statement of the Managers) (``This bill lowers the standard for
determining whether an impairment constitute[s] a disability and
reaffirms the intent of Congress that the definition of disability
in the ADA is to be interpreted broadly and inclusively.'').
The Department received no comments on these provisions. The
text of these provisions is unchanged in the final rule, although
they have been renumbered as Sec. Sec. 35.108(d)(1)(vi) and
36.105(d)(1)(vi).

Sections Sec. Sec. 35.108(d)(1)(vii) and 36.105(d)(1)(vii)--
Comparison of Individual's Performance of Major Life Activity
Usually Will Not Require Scientific, Medical, or Statistical
Analysis

In the NPRM, the Department proposed at Sec. Sec.
35.108(d)(1)(v) and 36.105(d)(1)(v) rules of construction making
clear that the comparison of an individual's performance of a major
life activity to that of most people in the general population
usually will not require scientific, medical, or statistical
evidence. However, this rule is not intended to prohibit or limit
the use of scientific, medical, or statistical evidence in making
such a comparison where appropriate.
These rules of construction reflect Congress's rejection of the
demanding standards of proof imposed upon individuals with
disabilities who tried to assert coverage under the ADA prior to the
adoption of the ADA Amendments Act. In passing the Act, Congress
rejected the idea that the disability determination should be ``an
onerous burden for those seeking accommodations or modifications.''
See 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of
the Managers). These rules make clear that in most cases, people
with impairments will not need to present scientific, medical, or
statistical evidence to support their assertion that an impairment
is substantially limiting compared to most people in the general
population. Instead, other types of evidence that are less onerous
to collect, such as statements or affidavits of affected
individuals, school records, or determinations of disability status
under other statutes, should, in most cases, be considered adequate
to establish that an impairment is substantially limiting. The
Department's proposed language reflected Congress's intent to ensure
that individuals with disabilities are not precluded from seeking
protection under the ADA because of an overbroad, burdensome, and
generally unnecessary requirement.
The Department received several comments in support of these
provisions and a number of comments opposing all or part of them.
One commenter representing individuals with disabilities expressed
support for the proposed language, noting that ``[m]any people with
disabilities have limited resources and requiring them to hire an
expert witness to confirm their disability would pose an
insurmountable barrier that could prevent them from pursuing their
ADA cases.''
Commenters representing testing entities objected to this
language arguing that they needed scientific, medical, or
statistical evidence in order to determine whether an individual has
a learning disability or ADHD. These commenters argued that, unlike
other disabilities, assessment of learning disabilities and ADHD
require scientific, medical, or statistical evidence because such
disabilities have no overt symptoms, cannot be readily observed, and
lack medical or scientific verifiability. One commenter stated that
the proposed language ``favor[s] expedience over evidence-based
guidance.''
In opposing these provisions, these commenters appear to
conflate proof of the existence of an impairment with the analysis
of how an impairment substantially limits a major life activity.
These provisions address only how to evaluate whether an impairment
substantially limits a major life activity, and the Department's
proposed language appropriately reflects Congress's intent to ensure
that individuals with disabilities are not precluded from seeking
protection under the ADA because of overbroad, burdensome, and
generally unnecessary evidentiary requirements. Moreover, the
Department disagrees with the commenters' suggestion that an
individual with ADHD or a specific learning disability can never
demonstrate how the impairment substantially limits a major life
activity without scientific, medical, or statistical evidence.
Scientific, medical, or statistical evidence usually will not be
necessary to determine whether an individual with a disability is
substantially limited in a major life activity. However, as the rule
notes, such evidence may be appropriate in some circumstances.
One commenter suggested that the words ``where appropriate'' be
deleted from these provisions in the final rule out of concern that
they may be used to preclude individuals with disabilities from
proffering scientific or medical evidence in support of a claim of
coverage under the ADA. The Department disagrees with the
commenter's reading of these provisions. Congress recognized that
some people may choose to support their claim by presenting
scientific or medical evidence and made clear that ``plaintiffs
should not be constrained from offering evidence needed to establish
that their impairment is substantially limiting.'' See 154 Cong.
Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers).
The language ``where appropriate'' allows for those circumstances
where an individual chooses to present such evidence, but makes
clear that in most cases presentation of such evidence shall not be
necessary.
Finally, although the NPRM did not propose any changes with
respect to the title III regulatory requirements applicable to the
provision of testing accommodations at 28 CFR 36.309, one commenter
requested revisions to Sec. 36.309 to acknowledge the changes to
regulatory language in the definition of ``disability.'' Another
commenter noted that the proposed changes to the regulatory
definition of ``disability'' warrant new agency guidance on how the
ADA applies to requests for testing accommodations.
The Department does not consider it appropriate to include
provisions related to testing accommodations in the definitional
sections of the ADA regulations. The determination of disability,
and thus coverage under the ADA, is governed by the statutory and
regulatory definitions and the related rules of construction. Those
provisions do not speak to what testing accommodations an individual
with a disability is entitled to under the ADA nor to the related
questions of what a testing entity may request or require from an
individual with a disability who seeks testing accommodations.
Testing entities' substantive obligations are governed by 42 U.S.C.
12189 and the implementing regulation at 28 CFR 36.309. The
implementing regulation clarifies that private entities offering
covered examinations need to make sure that any request for required
documentation is reasonable and limited to the need for the
requested modification, accommodation, or auxiliary aid or service.
Furthermore, when considering requests for modifications,
accommodations, or auxiliary aids or services, the entity should
give considerable weight to documentation of past modifications,
accommodations, or auxiliary aids or services received in similar
testing situations or provided in response to an Individualized
Education Program (IEP) provided under the IDEA or a plan describing
services provided under section 504 of the Rehabilitation Act of
1973 (often referred as a Section 504 Plan).
Contrary to the commenters' suggestions, there is no conflict
between the regulation's definitional provisions and title III's
testing accommodation provisions. The first addresses the core
question of who is covered under the definition of ``disability,''
while the latter sets forth requirements related to documenting the
need for particular testing accommodations. To the extent that
testing entities are urging conflation of the analysis for
establishing disability with that for determining required testing
accommodations, such an approach would contradict the clear
delineation in the statute between the determination of disability
and the obligations that ensue.
Accordingly, in the final rule, the text of these provisions is
largely unchanged, except that the provisions are renumbered as
Sec. Sec. 35.108(d)(1)(vii) and 36.108(d)(1)(vii), and the
Department added ``the presentation of,'' in the second sentence,
which was included in the corresponding provision of the EEOC final
rule. See 29 CFR 1630.2(j)(1)(v).

Sections 35.108(d)(1)(viii) and 36.105(d)(1)(viii)--Determination
Made Without Regard to the Ameliorative Effects of Mitigating
Measures

The ADA as amended expressly prohibits any consideration of the
ameliorative effects

[[Page 53232]]

of mitigating measures when determining whether an individual's
impairment substantially limits a major life activity, except for
the ameliorative effects of ordinary eyeglasses or contact lenses.
42 U.S.C. 12102(4)(E). The statute provides an illustrative, and
non-exhaustive list of different types of mitigating measures. Id.
In the NPRM, the Department proposed Sec. Sec. 35.108(d)(2)(vi)
and 36.105(d)(2)(vi), which tracked the statutory language regarding
consideration of mitigating measures. These provisions stated that
the ameliorative effects of mitigating measures should not be
considered when determining whether an impairment substantially
limits a major life activity. However, the beneficial effects of
ordinary eyeglasses or contact lenses should be considered when
determining whether an impairment substantially limits a major life
activity. Ordinary eyeglasses or contact lenses refer to lenses that
are intended to fully correct visual acuity or to eliminate
refractive errors. Proposed Sec. Sec. 35.108(d)(4) and
36.105(d)(4), discussed below, set forth examples of mitigating
measures.
A number of commenters agreed with the Department's proposed
language and no commenters objected. Some commenters, however, asked
the Department to add language to these sections stating that,
although the ameliorative effects of mitigating measures may not be
considered in determining whether an individual has a covered
disability, they may be considered in determining whether an
individual is entitled to specific testing accommodations or
reasonable modifications. The ADA Amendments Act revised the
definition of ``disability'' and the Department agrees that the
Act's prohibition on assessing the ameliorative effects of
mitigating measures applies only to the determination of whether an
individual meets the definition of ``disability.'' The Department
declines to add the requested language, however, because it goes
beyond the scope of this rulemaking by addressing ADA requirements
that are not related to the definition of ``disability.'' These
rules of construction do not apply to the requirements to provide
reasonable modifications under Sec. Sec. 35.130(b)(7) and 36.302 or
testing accommodations under Sec. 36.309 in the title III
regulations. The Department disagrees that further clarification is
needed at this point and declines to modify these provisions except
that they are now renumbered as Sec. Sec. 35.108(d)(1)(viii) and
Sec. 36.105(d)(1)(viii).
The Department notes that in applying these rules of
construction, evidence showing that an impairment would be
substantially limiting in the absence of the ameliorative effects of
mitigating measures could include evidence of limitations that a
person experienced prior to using a mitigating measure or evidence
concerning the expected course of a particular disorder absent
mitigating measures.
The determination of whether an individual's impairment
substantially limits a major life activity is unaffected by an
individual's choice to forgo mitigating measures. For individuals
who do not use a mitigating measure (including, for example,
medication or auxiliary aids and services that might alleviate the
effects of an impairment), the availability of such measures has no
bearing on whether the impairment substantially limits a major life
activity. The limitations posed by the impairment on the individual
and any negative (non-ameliorative) effects of mitigating measures
will serve as the foundation for a determination of whether an
impairment is substantially limiting. The origin of the impairment,
whether its effects can be mitigated, and any ameliorative effects
of mitigating measures that are employed may not be considered in
determining if the impairment is substantially limiting.

Sections 35.108(d)(1)(ix) and 36.105(d)(1)(ix)--Impairment That
Lasts Less Than Six Months Can Still Be a Disability Under First
Two Prongs of the Definition

In Sec. Sec. 35.108(d)(1)(ix) and 36.105(d)(1)(ix), the NPRM
proposed rules of construction noting that the six-month
``transitory'' part of the ``transitory and minor'' exception does
not apply to the ``actual disability'' or ``record of'' prongs of
the definition of ``disability.'' Even if an impairment may last or
is expected to last six months or less, it can be substantially
limiting.
The ADA as amended provides that the ``regarded as'' prong of
the definition of ``disability'' does ``not apply to impairments
that are [both] transitory and minor.'' 42 U.S.C. 12102(3)(B).
``Transitory impairment'' is defined as ``an impairment with an
actual or expected duration of six months or less.'' Id. The statute
does not define the term ``minor.'' Whether an impairment is both
``transitory and minor'' is a question of fact that is dependent
upon individual circumstances. The ADA as amended contains no such
provision with respect to the first two prongs of the definition of
``disability''--``actual disability,'' and ``record of'' disability.
The application of the ``transitory and minor'' exception to the
``regarded as'' prong is addressed in Sec. Sec. 35.108(f) and
36.105(f).
The Department received two comments on this proposed language.
One commenter recommended that the Department delete this language
and ``replace it with language clarifying that if a condition cannot
meet the lower threshold of impairment under the third prong, it
cannot meet the higher threshold of a disability under the first and
second prongs.'' The Department declines to modify these provisions
because the determination of whether an individual satisfies the
requirements of a particular prong is not a comparative
determination between the three means of demonstrating disability
under the ADA. The Department believes that the suggested language
would create confusion because there are significant differences
between the first two prongs and the third prong. In addition, the
Department believes its proposed language is in keeping with the ADA
Amendments Act and the supporting legislative history.
The other commenter suggested that the Department add language
to provide greater clarity with respect to the application of the
transitory and minor exception to the ``regarded as prong.'' The
Department does not believe that additional language should be added
to these rules of construction, which relate only to whether there
is a six-month test for the first two prongs of the definition. As
discussed below, the Department has revised both the regulatory text
at Sec. Sec. 35.108(f) and 36.105(f) and its guidance on the
application of the ``transitory and minor'' exception to the
``regarded as'' prong. See discussion below.

Sections 35.108(d)(2) and 36.105(d)(2)--Predictable Assessments

In the NPRM, proposed Sec. Sec. 35.108(d)(2) and 36.105(d)(2)
set forth examples of impairments that should easily be found to
substantially limit one or more major life activities. These
provisions recognized that while there are no ``per se''
disabilities, for certain types of impairments the application of
the various principles and rules of construction concerning the
definition of ``disability'' to the individualized assessment would,
in virtually all cases, result in the conclusion that the impairment
substantially limits a major life activity. Thus, the necessary
individualized assessment of coverage premised on these types of
impairments should be particularly simple and straightforward. The
purpose of the ``predictable assessments'' provisions is to simplify
consideration of those disabilities that virtually always create
substantial limitations to major life activities, thus satisfying
the statute's directive to create clear, consistent, and enforceable
standards and ensuring that the inquiry of ``whether an individual's
impairment is a disability under the ADA should not demand extensive
analysis.'' See Public Law 110-325, sec. 2(b)(1), (5). The
impairments identified in the predictable assessments provision are
a non-exhaustive list of examples of the kinds of disabilities that
meet these criteria and, with one exception, are consistent with the
corresponding provision in the EEOC ADA Amendments Act rule. See 29
CFR 1630.2(j)(3)(iii).\7\
---------------------------------------------------------------------------

\7\ In the NPRM, the Department proposed adding ``traumatic
brain injury'' to the predictable assessments list.
---------------------------------------------------------------------------

The Department believes that the predictable assessments
provisions comport with the ADA Amendments Act's emphasis on
adopting a less burdensome and more expansive definition of
``disability.'' The provisions are rooted in the application of the
statutory changes to the meaning and interpretation of the
definition of ``disability'' contained in the ADA Amendments Act and
flow from the rules of construction set forth in Sec. Sec.
35.108(a)(2)(i), 36.105(a)(2)(i), 35.108(c)(2)(i) and (ii),
36.105(c)(2)(i) and (ii). These rules of construction and other
specific provisions require the broad construction of the definition
of ``disability'' in favor of expansive coverage to the maximum
extent permitted by the terms of the ADA. In addition, they lower
the standard to be applied to ``substantially limits,'' making clear
that an impairment need not prevent or significantly restrict an
individual from performing a major life activity; clarify that major
life activities include major bodily functions; elucidate that
impairments that are

[[Page 53233]]

episodic or in remission are disabilities if they would be
substantially limiting when active; and incorporate the requirement
that the ameliorative effects of mitigating measures (other than
ordinary eyeglasses or contact lenses) must be disregarded in
assessing whether an individual has a disability.
Several organizations representing persons with disabilities and
the elderly, constituting the majority of commenters on these
provisions, supported the inclusion of the predictable assessments
provisions. One commenter expressed strong support for the provision
and recommended that it closely track the corresponding provision in
the EEOC title I rule, while another noted its value in streamlining
individual assessments. In contrast, some commenters from
educational institutions and testing entities recommended the
deletion of these provisions, expressing concern that it implies the
existence of ``per se'' disabilities, contrary to congressional
intent that each assertion of disability should be considered on a
case-by-case basis. The Department does not believe that the
predictable assessment provisions constitutes a ``per se'' list of
disabilities and will retain it. These provisions highlight, through
a non-exhaustive list, impairments that virtually always will be
found to substantially limit one or more major life activities. Such
impairments still warrant individualized assessments, but any such
assessments should be especially simple and straightforward.
The legislative history of the ADA Amendments Act supports the
Department's approach in this area. In crafting the Act, Congress
hewed to the ADA definition of ``disability,'' which was modeled on
the definition of ``disability'' in the Rehabilitation Act, and
indicated that it wanted courts to interpret the definition as it
had originally been construed. See H.R. Rep. No. 110-730, pt. 2, at
6 (2008). Describing this goal, the legislative history states that
courts had interpreted the Rehabilitation Act definition ``broadly
to include persons with a wide range of physical and mental
impairments such as epilepsy, diabetes, multiple sclerosis, and
intellectual and developmental disabilities . . . even where a
mitigating measure--like medication or a hearing aid--might lessen
their impact on the individual.'' Id.; see also id. at 9 (referring
to individuals with disabilities that had been covered under section
504 of the Rehabilitation Act and that Congress intended to include
under the ADA--``people with serious health conditions like
epilepsy, diabetes, cancer, cerebral palsy, multiple sclerosis,
intellectual and developmental disabilities''); id. at 6, n.6
(citing cases also finding that cerebral palsy, hearing impairments,
intellectual disabilities, heart disease, and vision in only one eye
were disabilities under the Rehabilitation Act); id. at 10 (citing
testimony from Rep. Steny H. Hoyer, one of the original lead
sponsors of the ADA in 1990, stating that ``[w]e could not have
fathomed that people with diabetes, epilepsy, heart conditions,
cancer, mental illnesses and other disabilities would have their ADA
claims denied because they would be considered too functional to
meet the definition of disability''); 2008 Senate Statement of
Managers at 3 (explaining that ``we [we]re faced with a situation in
which physical or mental impairments that would previously have been
found to constitute disabilities [under the Rehabilitation Act]
[we]re not considered disabilities'' and citing individuals with
impairments such as amputation, intellectual disabilities, epilepsy,
multiple sclerosis, diabetes, muscular dystrophy, and cancer as
examples).
Some commenters asked the Department to add certain impairments
to the predictable assessments list, while others asked the
Department to remove certain impairments. Commenters representing
educational and testing institutions urged that, if the Department
did not delete the predictable assessment provisions, then the list
should be modified to remove any impairments that are not obvious or
visible to third parties and those for which functional limitations
can change over time. One commenter cited to a pre-ADA Amendments
Act reasonable accommodations case, which included language
regarding the uncertainty facing employers in determining
appropriate reasonable accommodations when mental impairments often
are not obvious and apparent to employers. See Wallin v. Minnesota
Dep't of Corrections, 153 F.3d 681, 689 (8th Cir. 1998). This
commenter suggested that certain impairments, including autism,
depression, post-traumatic stress disorder, and obsessive-compulsive
disorder, should not be deemed predictable assessments because they
are not immediately apparent to third parties. The Department
disagrees with this commenter, and believes that it is appropriate
to include these disabilities on the list of predictable
assessments. Many disabilities are less obvious or may be invisible,
such as cancer, diabetes, HIV infection, schizophrenia, intellectual
disabilities, and traumatic brain injury, as well as those
identified by the commenter. The likelihood that an impairment will
substantially limit one or more major life activities is unrelated
to whether or not the disability is immediately apparent to an
outside observer. Therefore, the Department will retain the examples
that involve less apparent disabilities on the list of predictable
assessments.
The Department believes that the list accurately illustrates
impairments that virtually always will result in a substantial
limitation of one or more major life activities. The Department
recognizes that impairments are not always static and can result in
different degrees of functional limitation at different times,
particularly when mitigating measures are used. However, the ADA as
amended anticipates variation in the extent to which impairments
affect major life activities, clarifying that impairments that are
episodic or in remission nonetheless are disabilities if they would
be substantially limiting when active and requiring the
consideration of disabilities without regard to ameliorative
mitigating measures. The Department does not believe that limiting
the scope of its provisions addressing predictable assessments only
to those disabilities that would never vary in functional limitation
would be appropriate.
Other commenters speaking as individuals or representing persons
with disabilities endorsed the inclusion of some impairments already
on the list, including traumatic brain injury, sought the inclusion
of additional impairments, requested revisions to some descriptions
of impairments, or asked for changes to the examples of major life
activities linked to specific impairments.
Several commenters requested the expansion of the predictable
assessments list, in particular to add specific learning
disabilities. Some commenters pointed to the ADA Amendments Act's
legislative history, which included Representative Stark's remarks
that specific learning disabilities are ``neurologically based
impairments that substantially limit the way these individuals
perform major life activities, like reading or learning, or the time
it takes to perform such activities.'' 154 Cong. Rec. H8291 (daily
ed. Sept. 17, 2008). Others recommended that some specific types of
specific learning disabilities, including dyslexia, dyscalculia,
dysgraphia, dyspraxia, and slowed processing speed should be
referenced as predictable assessments. With respect to the major
life activities affected by specific learning disabilities,
commenters noted that specific learning disabilities are
neurologically based and substantially limit learning, thinking,
reading, communicating, and processing speed.
Similarly, commenters recommended the inclusion of ADHD, urging
that it originates in the brain and affects executive function
skills including organizing, planning, paying attention, regulating
emotions, and self-monitoring. One commenter noted that if ADHD
meets the criteria established in the DSM-5, then it would
consistently meet the criteria to establish disability under the
ADA. The same commenter noted that ADHD is brain based and affects
the major life activity of executive function. Another commenter
suggested that ADHD should be included and should be identified as
limiting brain function, learning, reading, concentrating, thinking,
communicating, interacting with others, and working. Other
commenters urged the inclusion of panic disorders, anxiety disorder,
cognitive disorder, and post-concussive disorder. A number of
commenters noted that the exclusion of impairments from the
predictable assessments list could be seen as supporting an
inference that the impairments that are not mentioned should not
easily be found to be disabilities.
The Department determined that it will retain the language it
proposed in the NPRM and will not add or remove any impairments from
this list. As discussed above, the list is identical to the EEOC's
predictable assessments list, at 29 CFR 1630.2(g)(3)(iii), except
that the Department's NPRM added traumatic brain injury. The
Department received support for including traumatic brain injury and
did not receive any comments recommending the removal of traumatic
brain injury from the list; thus, we are retaining it in this final
rule.
The Department's decision to track the EEOC's list, with one
minor exception, stems in part from our intent to satisfy the
congressional mandate for ``clear, strong,

[[Page 53234]]

consistent, enforceable standards.'' A number of courts already have
productively applied the EEOC's predictable assessments provision,
and the Department believes that it will continue to serve as a
useful, common-sense tool in promoting judicial efficiency. It is
important to note, however, that the failure to include any
impairment in the list of examples of predictable assessments does
not indicate that that impairment should be subject to undue
scrutiny.
Some commenters expressed concern about the major life
activities that the Department attributed to particular impairments.
Two commenters sought revision of the major life activities
attributed to intellectual disabilities, suggesting that it would be
more accurate to reference cognitive function and learning, instead
of reading, learning, and problem solving. One commenter recommended
attributing the major life activity of brain function to autism
rather than learning, social interaction, and communicating. The
Department determined that it will follow the EEOC's model and, with
respect to both intellectual disabilities and autism, it will
reference the major bodily function of brain function. By using the
term ``brain function'' to describe the system affected by various
mental impairments, the Department intends to capture functions such
as the brain's ability to regulate thought processes and emotions.
The Department considers it important to reiterate that, just as
the list of impairments in these sections is not comprehensive, the
list of major bodily functions or other major life activities linked
to those impairments are not exhaustive. The impairments identified
in these sections, may affect a wide range of major bodily functions
and other major life activities. The Department's specification of
certain major life activities with respect to particular impairments
simply provides one avenue by which a person might elect to
demonstrate that he or she has a disability.
The Department recognizes that impairments listed in Sec. Sec.
35.108(d)(2) and 36.105(d)(2) may substantially limit other major
life activities in addition to those listed in the regulation. For
example, diabetes may substantially limit major life activities
including eating, sleeping, and thinking. Major depressive disorder
may substantially limit major life activities such as thinking,
concentrating, sleeping, and interacting with others. Multiple
sclerosis may substantially limit major life activities such as
walking, bending, and lifting.
One commenter noted that the NPRM did not track the EEOC's
language with respect to the manner in which it identified a major
bodily function that is substantially limited by epilepsy, muscular
dystrophy, or multiple sclerosis in 29 CFR 1630.2(j)(3)(iii). While
the EEOC listed each of these three impairments individually, noting
in each case that the major bodily function affected is neurological
function, at 29 CFR 1630.2(j)(3)(iii), the NPRM grouped the three
impairments and noted that they affect neurological function. In
order to clarify that each of the three impairments may manifest a
substantial limitation of neurological function, the final rule
incorporates ``each'' immediately following the list of the three
impairments. Similarly, the Department added an ``each'' to
Sec. Sec. 35.108(d)(2)(iii)(K) and 36.105(d)(2)(iii)(K) to make
clear that each of the listed impairments substantially limits brain
function.
Some commenters representing testing entities and educational
institutions sought the insertion of language in the predictable
assessment provisions that would indicate that individuals found to
have disabilities are not, by virtue of a determination that they
have a covered disability, eligible for a testing accommodation or a
reasonable modification. The Department agrees with these commenters
that the determination of disability is a distinct determination
separate from the determination of the need for a requested
modification or a testing accommodation. The Department declines to
add the language suggested by the commenters to Sec. Sec.
35.108(d)(2) and 36.105(d)(2), however, because the requirements for
reasonable modifications are addressed separately in Sec. Sec.
35.130(b)(7) and 36.302 of the title II and III regulations and the
requirements related to providing appropriate accommodations in
testing and licensing are found at Sec. 36.309.

Sections 35.108(d)(3) and 36.105(d)(3)--Condition, Manner, or
Duration

Overview. Proposed Sec. Sec. 35.108(d)(3) and 36.105(d)(3),
both titled ``Condition, manner[,] and duration,'' addressed how
evidence related to condition, manner, or duration may be used to
show how impairments substantially limit major life activities.
These principles were first addressed in the preamble to the 1991
rule. At that time, the Department noted that ``[a] person is
considered an individual with a disability . . . when the
individual's important life activities are restricted as to the
conditions, manner, or duration under which they can be performed in
comparison to most people.'' 56 FR 35544, 35549 (July 26, 1991); see
also S. Rep. No. 101-116, at 23 (1989).
These concepts were affirmed by Congress in the legislative
history to the ADA Amendments Act: ``We particularly believe that
this test, which articulated an analysis that considered whether a
person's activities are limited in condition, duration and manner,
is a useful one. We reiterate that using the correct standard--one
that is lower than the strict or demanding standard created by the
Supreme Court in Toyota--will make the disability determination an
appropriate threshold issue but not an onerous burden for those
seeking accommodations or modifications. At the same time,
plaintiffs should not be constrained from offering evidence needed
to establish that their impairment is substantially limiting.'' 154
Cong. Rec. S8346 (Sept. 11, 2008). Noting its continued reliance on
the functional approach to defining disability, Congress expressed
its belief that requiring consistency with the findings and purposes
of the ADA Amendments Act would ``establish[ ] an appropriate
functionality test for determining whether an individual has a
disability.'' Id. While condition, manner, and duration are not
required factors that must be considered, the regulations clarify
that these are the types of factors that may be considered in
appropriate cases. To the extent that such factors may be useful or
relevant to show a substantial limitation in a particular fact
pattern, some or all of them (and related facts) may be considered,
but evidence relating to each of these factors often will not be
necessary to establish coverage.
In the NPRM, proposed Sec. Sec. 35.108(d)(3)(i) and
35.105(d)(3)(i) noted that the rules of construction at Sec. Sec.
35.108(d)(1) and 35.105(d)(1) should inform consideration of how
individuals are substantially limited in major life activities.
Sections 35.108(d)(3)(ii) and 36.105(d)(3)(ii) provided examples of
how restrictions on condition, manner, or duration might be
interpreted and also clarified that the negative or burdensome side
effects of medication or other mitigating measures may be considered
when determining whether an individual has a disability. In
Sec. Sec. 35.108(d)(3)(iii) and 36.105(d)(3)(iii), the proposed
language set forth a requirement to focus on how a major life
activity is substantially limited, rather than on the ultimate
outcome a person with an impairment can achieve.
The Department received comments on the condition, manner, or
duration provision from advocacy groups for individuals with
disabilities, from academia, from education and testing entities,
and from interested individuals. Several advocacy organizations for
individuals with disabilities and private individuals noted that the
section title's heading was inconsistent with the regulatory text
and sought the replacement of the ``and'' in the section's title,
``Condition, manner, and duration,'' with an ``or.'' Commenters
expressed concern that retaining the ``and'' in the heading title
would be inconsistent with congressional intent and would
incorrectly suggest that individuals are subject to a three-part
test and must demonstrate that an impairment substantially limits a
major life activity with respect to condition, manner, and duration.
The Department agrees that the ``and'' used in the title of the
proposed regulatory provision could lead to confusion and a
misapplication of the law and has revised the title so it now reads
``Condition, manner, or duration.'' Consistent with the regulatory
text, the revised heading makes clear that any one of the three
descriptors--``condition,'' ``manner,'' or ``duration''--may aid in
demonstrating that an impairment substantially limits a major life
activity or a major bodily function.

Condition, Manner, or Duration

In the NPRM, proposed Sec. Sec. 35.108(d)(3)(i) and
36.105(d)(3)(i) noted that the application of the terms
``condition'' ``manner,'' or ``duration'' should at all times take
into account the principles in Sec. 35.108(d)(1) and Sec.
36.105(d)(1), respectively, which referred to the rules of
construction for ``substantially limited.'' The proposed regulatory
text also included brief explanations of the meaning of the core
terms, clarifying that in appropriate cases, it could be useful to
consider, in comparison to most people in the general population,
the conditions under which an individual performs a major life
activity; the manner in which an individual performs a major life
activity; or the time it takes an

[[Page 53235]]

individual to perform a major life activity, or for which the
individual can perform a major life activity.
Several disability rights advocacy groups and individuals
supported the NPRM approach, with some referencing the value of
pointing to the rules of construction and their relevance to
condition, manner, or duration considerations. Some commenters noted
that it was helpful to highlight congressional intent that the
definition of ``disability'' should be broadly construed and not
subject to extensive analysis. Another commenter recommended
introducing a clarification that, while the limitation imposed by an
impairment must be important, it does not need to rise to the level
of severely or significantly restricting the ability to perform a
major life activity. Some commenters sought additional guidance
regarding the meaning of the terms ``condition,'' ``manner,'' and
``duration'' and recommended the addition of more illustrative
examples.
In response to commenters' concerns, the Department has modified
the regulatory text in Sec. Sec. 35.108(d)(3)(i) and
36.105(d)(3)(i) to reference all of the rules of construction rather
than only those pertaining to ``substantially limited.'' The
Department also added Sec. Sec. 35.108(d)(3)(iv) and
36.105(d)(3)(iv), further discussed below, to clarify that the rules
of construction will not always require analysis of condition,
manner, or duration, particularly with respect to certain
impairments, such as those referenced in paragraph (d)(2)(iii)
(predictable assessments). With these changes, the Department
believes that the final rule more accurately reflects congressional
intent. The Department also believes that clarifying the application
of the rules of construction to condition, manner, or duration will
contribute to consistent interpretation of the definition of
``disability'' and reduce inadvertent reliance on older cases that
incorporate demanding standards rejected by Congress in the ADA
Amendments Act.
It is the Department's view that the rules of construction offer
substantial guidance about how condition, manner, or duration must
be interpreted so as to ensure the expansive coverage intended by
Congress. Except for this clarification, the Department did not
receive comments opposing the proposed regulatory text on condition,
manner, or duration in Sec. Sec. 35.108(d)(3)(i) and
36.105(d)(3)(i) and did not make any other changes to these
provisions.
Some commenters objected to language in the preamble to the NPRM
which suggested that there might be circumstances in which the
consideration of condition, manner, or duration might not include
comparisons to most people in the general population. On
reconsideration, the Department recognizes that this discussion
could create confusion about the requirements. The Department
believes that condition, manner, or duration determinations should
be drawn in contrast to most people in the general population, as is
indicated in the related rules of construction, at Sec. Sec.
35.108(d)(1)(v) and 36.105(d)(1)(v).

Condition, Manner, or Duration Examples, Including Negative Effects
of Mitigating Measures

Proposed Sec. Sec. 35.108(d)(3)(ii) and 36.105(d)(3)(ii) set
forth examples of the types of evidence that might demonstrate
condition, manner, or duration limitations, including the way an
impairment affects the operation of a major bodily function, the
difficulty or effort required to perform a major life activity, the
pain experienced when performing a major life activity, and the
length of time it takes to perform a major life activity. These
provisions also clarified that the non-ameliorative effects of
mitigating measures may be taken into account to demonstrate the
impact of an impairment on a major life activity. The Department's
discussion in the NPRM preamble noted that such non-ameliorative
effects could include negative side effects of medicine, burdens
associated with following a particular treatment regimen, and
complications that arise from surgery, among others. The preamble
also provided further clarification of the possible applications of
condition, manner, or duration analyses, along with several
examples. Several commenters supported the proposed rule's
incorporation of language and examples offering insight into the
varied ways that limitations on condition, manner, or duration could
demonstrate substantial limitation. One commenter positively noted
that the language regarding the ``difficulty, effort, or time
required to perform a major life activity'' could prove extremely
helpful to individuals asserting a need for testing accommodations,
as evidence previously presented regarding these factors was deemed
insufficient to demonstrate the existence of a disability. Some
commenters requested the insertion of additional examples and
explanation in the preamble about how condition, manner or duration
principles could be applied under the new rules of construction.
Another commenter sought guidance on the specific reference points
that should be used when drawing comparisons with most people in the
general population. The commenter offered the example of delays in
developmental milestones as a possible referent in evaluating
children with speech-language disorders, but noted a lack of
guidance regarding comparable referents for adults. The commenter
also noted that guidance is needed regarding what average or
acceptable duration might be with respect to certain activities. An
academic commenter expressed support for the Department's reference
to individuals with learning impairments using certain self-
mitigating measures, such as extra time to study or taking an
examination in a different format, and the relevance of these
measures to condition, manner, and duration.
The Department did not receive comments opposing the NPRM
language on condition, manner, or duration in Sec. Sec.
35.108(d)(3)(ii) and 36.105(d)(3)(ii) and is not making any changes
to this language. The Department agrees that further explanation and
examples as provided below regarding the concepts of condition,
manner, or duration will help clarify how the ADA Amendments Act has
expanded the definition of ``disability.'' An impairment may
substantially limit the ``condition'' or ``manner'' in which a major
life activity can be performed in a number of different ways. For
example, the condition or manner in which a major life activity can
be performed may refer to how an individual performs a major life
activity; e.g., the condition or manner under which a person with an
amputated hand performs manual tasks will likely be more cumbersome
than the way that most people in the general population would
perform the same tasks. Condition or manner also may describe how
performance of a major life activity affects an individual with an
impairment. For example, an individual whose impairment causes pain
or fatigue that most people would not experience when performing
that major life activity may be substantially limited. Thus, the
condition or manner under which someone with coronary artery disease
performs the major life activity of walking would be substantially
limited if the individual experiences shortness of breath and
fatigue when walking distances that most people could walk without
experiencing such effects. An individual with specific learning
disabilities may need to approach reading or writing in a distinct
manner or under different conditions than most people in the general
population, possibly employing aids including verbalizing,
visualizing, decoding or phonology, such that the effort required
could support a determination that the individual is substantially
limited in the major life activity of reading or writing.
Condition or manner may refer to the extent to which a major
life activity, including a major bodily function, can be performed.
In some cases, the condition or manner under which a major bodily
function can be performed may be substantially limited when the
impairment ``causes the operation [of the bodily function] to over-
produce or under-produce in some harmful fashion.'' See H.R. Rep.
No. 110-730, pt. 2, at 17 (2008). For example, the endocrine system
of a person with type I diabetes does not produce sufficient
insulin. For that reason, compared to most people in the general
population, the impairment of diabetes substantially limits the
major bodily functions of endocrine function and digestion.
Traumatic brain injury substantially limits the condition or manner
in which an individual's brain functions by impeding memory and
causing headaches, confusion, or fatigue--each of which could
constitute a substantial limitation on the major bodily function of
brain function.
``Duration'' refers to the length of time an individual can
perform a major life activity or the length of time it takes an
individual to perform a major life activity, as compared to most
people in the general population. For example, a person whose back
or leg impairment precludes him or her from standing for more than
two hours without significant pain would be substantially limited in
standing, because most people can stand for more than two hours
without significant pain. However, ``[a] person who can walk for 10
miles continuously is not substantially limited in walking merely
because on the eleventh mile, he or she

[[Page 53236]]

begins to experience pain because most people would not be able to
walk eleven miles without experiencing some discomfort.'' See 154
Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the
Managers) (quoting S. Rep. No. 101-116, at 23 (1989)). Some
impairments, such as ADHD, may have two different types of impact on
duration considerations. ADHD frequently affects both an ability to
sustain focus for an extended period of time and the speed with
which someone can process information. Each of these duration-
related concerns could demonstrate that someone with ADHD, as
compared to most people in the general population, takes longer to
complete major life activities such as reading, writing,
concentrating, or learning.
The Department reiterates that, because the limitations created
by certain impairments are readily apparent, it would not be
necessary in such cases to assess the negative side effects of a
mitigating measure in determining that a particular impairment
substantially limits a major life activity. For example, there
likely would be no need to consider the burden that dialysis
treatment imposes for someone with end-stage renal disease because
the impairment would allow a simple and straightforward
determination that the individual is substantially limited in kidney
function.
One commenter representing people with disabilities asked the
Department to recognize that, particularly with respect to learning
disabilities, on some occasions the facts related to condition,
manner, or duration necessary to reach a diagnosis of a learning
disability also are sufficient to establish that the affected
individual has a disability under the ADA. The Department agrees
that the facts gathered to establish a diagnosis of an impairment
may simultaneously satisfy the requirements for demonstrating
limitations on condition, manner, or duration sufficient to show
that the impairment constitutes a disability.

Emphasis on Limitations Instead of Outcomes

In passing the ADA Amendments Act, Congress clarified that
courts had misinterpreted the ADA definition of ``disability'' by,
among other things, inappropriately emphasizing the capabilities of
people with disabilities to achieve certain outcomes. See 154 Cong.
Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers).
For example, someone with a learning disability may achieve a high
level of academic success, but may nevertheless be substantially
limited in one or more of the major life activities of reading,
writing, speaking, or learning because of the additional time or
effort he or she must spend to read, speak, write, or learn compared
to most people in the general population. As the House Education and
Labor Committee Report emphasized:

[S]ome courts have found that students who have reached a high
level of academic achievement are not to be considered individuals
with disabilities under the ADA, as such individuals may have
difficulty demonstrating substantial limitation in the major life
activities of learning or reading relative to ``most people.'' When
considering the condition, manner or duration in which an individual
with a specific learning disability performs a major life activity,
it is critical to reject the assumption that an individual who
performs well academically or otherwise cannot be substantially
limited in activities such as learning, reading, writing, thinking,
or speaking. As such, the Committee rejects the findings in Price v.
National Board of Medical Examiners, Gonzales v. National Board of
Medical Examiners, and Wong v. Regents of University of California.
The Committee believes that the comparison of individuals with
specific learning disabilities to ``most people'' is not problematic
unto itself, but requires a careful analysis of the method and
manner in which an individual's impairment limits a major life
activity. For the majority of the population, the basic mechanics of
reading and writing do not pose extraordinary lifelong challenges;
rather, recognizing and forming letters and words are effortless,
unconscious, automatic processes. Because specific learning
disabilities are neurologically-based impairments, the process of
reading for an individual with a reading disability (e.g., dyslexia)
is word-by-word, and otherwise cumbersome, painful, deliberate and
slow--throughout life. The Committee expects that individuals with
specific learning disabilities that substantially limit a major life
activity will be better protected under the amended Act.

H.R. Rep. No. 110-730 pt. 1, at 10-11 (2008).
Sections 35.108(d)(3)(iii) and 36.105(d)(3)(iii) of the proposed
rule reflected congressional intent and made clear that the outcome
an individual with a disability is able to achieve is not
determinative of whether an individual is substantially limited in a
major life activity. Instead, an individual can demonstrate the
extent to which an impairment affects the condition, manner, or
duration in which the individual performs a major life activity,
such that it constitutes a substantial limitation. The ultimate
outcome of an individual's efforts should not undermine a claim of
disability, even if the individual ultimately is able to achieve the
same or similar result as someone without the impairment.
The Department received several comments on these provisions,
with disability organizations and individuals supporting the
inclusion of these provisions and some testing entities and an
organization representing educational institutions opposing them.
The opponents argued that academic performance and testing outcomes
are objective evidence that contradict findings of disability and
that covered entities must be able to focus on those outcomes in
order to demonstrate whether an impairment has contributed to a
substantial limitation. These commenters argued that the evidence
frequently offered by those making claims of disability that
demonstrate the time or effort required to achieve a result, such as
evidence of self-mitigating measures, informal accommodations, or
recently provided reasonable modifications, is inherently subjective
and unreliable. The testing entities suggested that the Department
had indicated support for their interest in focusing on outcomes
over process-related obstacles in the NPRM preamble language where
the Department had noted that covered entities ``may defeat a
showing of substantial limitation by refuting whatever evidence the
individual seeking coverage has offered, or by offering evidence
that shows that an impairment does not impose a substantial
limitation on a major life activity.'' NPRM, 79 FR 4839, 4847-48
(Jan. 30, 2014). The commenters representing educational
institutions and testing entities urged the removal of Sec. Sec.
35.108(d)(3)(iii) and 36.105(d)(3)(iii) or, in the alternative, the
insertion of language indicating that outcomes, such as grades and
test scores indicating academic success, are relevant evidence that
should be considered when making disability determinations.
In contrast, commenters representing persons with disabilities
and individual commenters expressed strong support for these
provisions, noting that what an individual can accomplish despite an
impairment does not accurately reflect the obstacles an individual
had to overcome because of the impairment. One organization
representing persons with disabilities noted that while individuals
with disabilities have achieved successes at work, in academia, and
in other settings, their successes should not create obstacles to
addressing what they can do ``in spite of an impairment.''
Commenters also expressed concerns that testing entities and
educational institutions had failed to comply with the rules of
construction or to revise prior policies and practices to comport
with the new standards under the ADA as amended. Some commenters
asserted that testing entities improperly rejected accommodation
requests because the testing entities focused on test scores and
outcomes rather than on how individuals learn; required severe
levels of impairment; failed to disregard the helpful effect of
self-mitigating measures; referenced participation in
extracurricular activities as evidence that individuals did not have
disabilities; and argued that individuals diagnosed with specific
learning disabilities or ADHD in adulthood cannot demonstrate that
they have a disability because their diagnosis occurred too late.
Commenters representing persons with disabilities pointed to the
discussion in the legislative history about restoring a focus on
process rather than outcomes with respect to learning disabilities.
They suggested that such a shift in focus also would be helpful in
evaluating ADHD. One commenter asked the Department to include a
reference to ADHD and to explain that persons with ADHD may achieve
a high level of academic success but may nevertheless be
substantially limited in one or more major life activities, such as
reading, writing, speaking, concentrating, or learning. A private
citizen requested the addition of examples demonstrating the
application of these provisions because, in the commenter's view,
there have been many problems with decisions regarding individuals
with learning disabilities and an inappropriate focus on outcomes
and test scores.

[[Page 53237]]

The Department declines the request to add a specific reference
to ADHD in these provisions. The Department believes that the
principles discussed above apply equally to persons with ADHD as
well as individuals with other impairments. The provision already
references an illustrative, but not exclusive, example of an
individual with a learning disability. The Department believes that
this example effectively illustrates the concern that has affected
individuals with other impairments due to an inappropriate emphasis
on outcomes rather than how a major life activity is limited.
Organizations representing testing and educational entities
asked the Department to add regulatory language indicating that
testing-related outcomes, such as grades and test scores, are
relevant to disability determinations under the ADA. The Department
has considered this proposal and declines to adopt it because it is
inconsistent with congressional intent. As discussed earlier in this
section, Congress specifically stated that the outcome an individual
with a disability is able to achieve is not determinative of whether
that individual has a physical or mental impairment that
substantially limits a major life activity. The analysis of whether
an individual with an impairment has a disability is a fact-driven
analysis shaped by how an impairment has substantially limited one
or more major life activities or major bodily functions, considering
those specifically asserted by the individual as well as any others
that may apply. For example, if an individual with ADHD seeking a
reasonable modification or a testing accommodation asserts
substantial limitations in the major life activities of
concentrating and reading, then the analysis of whether or not that
individual has a covered disability will necessarily focus on
concentrating and reading. Relevant considerations could include
restrictions on the conditions, manner, or duration in which the
individual concentrates or reads, such as a need for a non-
stimulating environment or extensive time required to read. Even if
an individual has asserted that an impairment creates substantial
limitations on activities such as reading, writing, or
concentrating, the individual's academic record or prior
standardized testing results might not be relevant to the inquiry.
Instead, the individual could show substantial limitations by
providing evidence of condition, manner, or duration limitations,
such as the need for a reader or additional time. The Department
does not believe that the testing results or grades of an individual
seeking reasonable modifications or testing accommodations always
would be relevant to determinations of disability. While testing and
educational entities may, of course, put forward any evidence that
they deem pertinent to their response to an assertion of substantial
limitation, testing results and grades may be of only limited
relevance.
In addition, the Department does not agree with the assertions
made by testing and educational entities that evidence of testing
and grades is objective and, therefore, should be weighted more
heavily, while evidence of self-mitigating measures, informal
accommodations, or recently provided accommodations or modifications
is inherently subjective and should be afforded less consideration.
Congress's discussion of the relevance of testing outcomes and
grades clearly indicates that it did not consider them definitive
evidence of the existence or non-existence of a disability. While
tests and grades typically are numerical measures of performance,
the capacity to quantify them does not make them inherently more
valuable with respect to proving or disproving disability. To the
contrary, Congress's incorporation of rules of construction
emphasizing broad coverage of disabilities to the maximum extent
permitted, its direction that such determinations should neither
contemplate ameliorative mitigating measures nor demand extensive
analysis, and its recognition of learned and adaptive modifications
all support its openness for individuals with impairments to put
forward a wide range of evidence to demonstrate their disabilities.
The Department believes that Congress made its intention clear
that the ADA's protections should encompass people for whom the
nature of their impairment requires an assessment that focuses on
how they engage in major life activities, rather than the ultimate
outcome of those activities. Beyond directly addressing this concern
in the debate over the ADA Amendments Act, Congress's incorporation
of the far-reaching rules of construction, its explicit rejection of
the consideration of ameliorative mitigating measures--including
``learned behavioral or adaptive neurological modifications,'' 42
U.S.C. 12102(4)(E)(i)(IV), such as those often employed by
individuals with learning disabilities or ADHD--and its stated
intention to ``reinstat[e] a broad scope of protection to be
available under the ADA,'' Public Law 110-325, sec. 2(b)(1), all
support the language initially proposed in these provisions. For
these reasons, the Department determined that it will retain the
language of these provisions as they were originally drafted.

Analysis of Condition, Manner, or Duration Not Always Required

As noted in the discussion above, the Department has added
Sec. Sec. 35.108(d)(3)(iv) and 36.105(d)(3)(iv) in the final rule
to clarify that analysis of condition, manner, or duration will not
always be necessary, particularly with respect to certain
impairments that can easily be found to substantially limit a major
life activity. This language is also found in the EEOC ADA title I
regulation. See 29 CFR 1630(j)(4)(iv). As noted earlier, the
inclusion of these provisions addresses several comments from
organizations representing persons with disabilities. This language
also responds to several commenters' concerns that the Department
should clarify that, in some cases and particularly with respect to
predictable assessments, no or only a very limited analysis of
condition, manner, or duration is necessary.
At the same time, individuals seeking coverage under the first
or second prong of the definition of ``disability'' should not be
constrained from offering evidence needed to establish that their
impairment is substantially limiting. See 154 Cong. Rec. S8842
(daily ed. Sept. 16, 2008) (Statement of the Managers). Such
evidence may comprise facts related to condition, manner, or
duration. And, covered entities may defeat a showing of substantial
limitation by refuting whatever evidence the individual seeking
coverage has offered, or by offering evidence that shows that an
impairment does not impose a substantial limitation on a major life
activity. However, a showing of substantial limitation is not
defeated by facts unrelated to condition, manner, or duration that
are not pertinent to the substantial limitation of a major life
activity that the individual has proffered.

Sections 35.108(d)(4) and 36.105(d)(4)--Examples of Mitigating
Measures

The rules of construction set forth at Sec. Sec.
35.108(d)(1)(viii) and 36.105(d)(1)(viii) of the final rule make
clear that the ameliorative effects of mitigating measures shall not
be considered when determining whether an impairment substantially
limits a major life activity. In the NPRM, proposed Sec. Sec.
35.108(d)(4) and 36.105(d)(4) provided a non-inclusive list of
mitigating measures, which includes medication, medical supplies,
equipment, appliances, low-vision devices, prosthetics, hearing
aids, cochlear implants and implantable hearing devices, mobility
devices, oxygen therapy equipment, and assistive technology. In
addition, the proposed regulation clarified that mitigating measures
can include ``learned behavioral or adaptive neurological
modifications,'' psychotherapy, behavioral therapy, or physical
therapy, and ``reasonable modifications'' or auxiliary aids and
services.
The phrase ``learned behavioral or adaptive neurological
modifications,'' is intended to include strategies developed by an
individual to lessen the impact of an impairment. The phrase
``reasonable modifications'' is intended to include informal or
undocumented accommodations and modifications as well as those
provided through a formal process.
The ADA as amended specifies one exception to the rule on
mitigating measures, stating that the ameliorative effects of
ordinary eyeglasses and contact lenses shall be considered in
determining whether a person has an impairment that substantially
limits a major life activity and thereby is a person with a
disability. 42 U.S.C. 12102(4)(E)(ii). As discussed above,
Sec. Sec. 35.108(d)(4)(i) and 36.105(d)(4)(i) incorporate this
exception by excluding ordinary eyeglasses and contact lenses from
the definition of ``low-vision devices,'' which are mitigating
measures that may not be considered in determining whether an
impairment is a substantial limitation.
The Department received a number of comments supporting the
Department's language in these sections and its broad range of
examples of what constitutes a mitigating measure. Commenters
representing students with disabilities specifically supported the
inclusion of ``learned behavioral or adaptive neurological
modifications,'' noting that the section ``appropriately supports
and highlights that students [and individuals in other settings] may
have developed self-

[[Page 53238]]

imposed ways to support their disability in order to perform major
life activities required of daily life and that such measures cannot
be used to find that the person is not substantially limited.''
The Department notes that self-mitigating measures or
undocumented modifications or accommodations for students who have
impairments that substantially limit learning, reading, writing,
speaking, or concentrating may include such measures as arranging to
have multiple reminders for task completion; seeking help from
others to provide reminders or to assist with the organization of
tasks; selecting courses strategically (such as selecting courses
that require papers instead of exams); devoting a far larger portion
of the day, weekends, and holidays to study than students without
disabilities; teaching oneself strategies to facilitate reading
connected text or mnemonics to remember facts (including strategies
such as highlighting and margin noting); being permitted extra time
to complete tests; receiving modified homework assignments; or
taking exams in a different format or in a less stressful or
anxiety-provoking setting. Each of these mitigating measures,
whether formal or informal, documented or undocumented, can improve
the academic function of a student having to deal with a substantial
limitation in a major life activity such as concentrating, reading,
speaking, learning, or writing. However, when the determination of
disability is made without considering the ameliorative effects of
these measures, as required under the ADA as amended, these
individuals still have a substantial limitation in major life
activities and are covered by the ADA. See also discussion of
Sec. Sec. 35.108(d)(1) and 36.105(d)(1), above.
Some commenters argued that the Department's examples of
mitigating measures inappropriately include normal learning
strategies and asked that the Department withdraw or narrow its
discussion of self-mitigating measures. The Department disagrees.
Narrowing the discussion of self-mitigating measures to exclude
normal or common strategies would not be consistent with the ADA
Amendments Act. The Department construes learned behavioral or
adaptive neurological modifications broadly to include strategies
applied or utilized by an individual with a disability to lessen the
effect of an impairment; whether the strategy applied is normal or
common to students without disabilities is not relevant to whether
an individual with a disability's application of the strategy
lessens the effect of an impairment.
An additional commenter asked the Department to add language to
the regulation and preamble addressing mitigating measures an
individual with ADHD may employ. This commenter noted that ``[a]n
individual with ADHD may employ a wide variety of self-mitigating
measures, such as exertion of extensive extra effort, use of
multiple reminders, whether low tech or high tech, seeking a quiet
or distraction free place or environment to do required
activities.'' The Department agrees with this commenter that these
are examples of the type of self-mitigating measures used by
individuals with ADHD, but believes that they fall within the range
of mitigating measures already addressed by the regulatory language.
Another commenter asked the Department to add language to the
regulation or preamble addressing surgical interventions in a
similar fashion to the approach taken in the EEOC's title I
preamble, 76 FR 16978, 16983 (Mar. 25, 2011). There, the EEOC noted
that a surgical intervention may be an ameliorative mitigating
measure that could result in the permanent elimination of an
impairment, but it also indicated that confusion about how this
example might apply recommended against its inclusion in the
regulatory text. Therefore, the EEOC eliminated that example from
the draft regulatory text and recommended that, ``[d]eterminations
about whether surgical interventions should be taken into
consideration when assessing whether an individual has a disability
are better assessed on a case-by-case basis.'' The Department agrees
with the EEOC and underscores that surgical interventions may
constitute mitigating measures that should not be considered in
determining whether an individual meets the definition of
``disability.'' The Department declines to make any changes to its
proposed regulatory text for these sections of the final rule.
The ADA Amendments Act provides an ``illustrative but non-
comprehensive list of the types of mitigating measures that are not
to be considered.'' 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008)
(Statement of the Managers) at 9; see also H.R. Rep. No. 110-730,
pt. 2, at 20 (2008). The absence of any particular mitigating
measure should not convey a negative implication as to whether the
measure is a mitigating measure under the ADA. Id. This principle
applies equally to the non-exhaustive list in Sec. Sec.
35.108(d)(4) and 36.105(d)(4).

Sections 35.108(e) and 36.105(e)--Has a Record of Such an
Impairment

The second prong of the definition of ``disability'' under the
ADA provides that an individual with a record of an impairment that
substantially limits or limited a major life activity is an
individual with a disability. 42 U.S.C. 12102(1)(B).
Paragraph (3) of the definition of ``disability'' in the
existing title II and title III regulations states that 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. 28 CFR
35.104, 36.104. The NPRM proposed keeping the language in the title
II and title III regulations (with minor editorial changes) but to
renumber it as Sec. Sec. 35.108(e)(1) and 36.105(e)(1). In
addition, the NPRM proposed adding a new second paragraph stating
that any individual's assertion of a record of impairment that
substantially limits a major life activity should be broadly
construed to the maximum extent permitted by the ADA and should not
require extensive analysis. If an individual has a history of an
impairment that substantially limited one or more major life
activities when compared to most people in the general population or
was misclassified as having had such an impairment, then that
individual will satisfy the third prong of the definition of
``disability.'' The NPRM also proposed adding paragraph (3), which
provides that ``[a]n individual with a record of a substantially
limiting impairment may be entitled to a reasonable modification if
needed and related to the past disability.''
The Department received no comments objecting to its proposed
language for these provisions and has retained it in the final rule.
The Department received one comment requesting additional guidance
on the meaning of these provisions. The Department notes that
Congress intended this prong of the definition of ``disability'' to
ensure that people are not discriminated against based on prior
medical history. This prong is also intended to ensure that
individuals are not discriminated against because they have been
misclassified as an individual with a disability. For example,
individuals misclassified as having learning disabilities or
intellectual disabilities are protected from discrimination on the
basis of that erroneous classification. See H.R. Rep. No. 110-730,
pt. 2, at 7-8 & n.14 (2008).
This prong of the definition is satisfied where evidence
establishes that an individual has had a substantially limiting
impairment. The impairment indicated in the record must be an
impairment that would substantially limit one or more of the
individual's major life activities. The terms ``substantially
limits'' and ``major life activity'' under the second prong of the
definition of ``disability'' are to be construed in accordance with
the same principles applicable under the ``actual disability''
prong, as set forth in Sec. Sec. 35.108(b) and 36.105(b).
There are many types of records that could potentially contain
this information, including but not limited to, education, medical,
or employment records. The Department notes that past history of an
impairment need not be reflected in a specific document. Any
evidence that an individual has a past history of an impairment that
substantially limited a major life activity is all that is necessary
to establish coverage under the second prong. An individual may have
a ``record of'' a substantially limiting impairment--and thus
establish coverage under the ``record of'' prong of the statute--
even if a covered entity does not specifically know about the
relevant record. For the covered entity to be liable for
discrimination under the ADA, however, the individual with a
``record of'' a substantially limiting impairment must prove that
the covered entity discriminated on the basis of the record of the
disability.
Individuals who are covered under the ``record of'' prong may be
covered under the first prong of the definition of ``disability'' as
well. This is because the rules of construction in the ADA
Amendments Act and the Department's regulations provide that an
individual with an impairment that is episodic or in remission can
be protected under the first prong if the impairment would be
substantially limiting when active. See Sec. Sec. 35.108(d)(1)(iv);
36.105(d)(1)(iv). Thus, an individual who has cancer that is
currently in remission is an individual with

[[Page 53239]]

a disability under the ``actual disability'' prong because he has an
impairment that would substantially limit normal cell growth when
active. He is also covered by the ``record of'' prong based on his
history of having had an impairment that substantially limited
normal cell growth.
Finally, these provisions of the regulations clarify that an
individual with a record of a disability is entitled to a reasonable
modification currently needed relating to the past substantially
limiting impairment. In the legislative history, Congress stated
that reasonable modifications were available to persons covered
under the second prong of the definition. See H.R. Rep. No. 110-730,
pt. 2, at 22 (2008) (``This makes clear that the duty to accommodate
. . . arises only when an individual establishes coverage under the
first or second prong of the definition.''). For example, a high
school student with an impairment that previously substantially
limited, but no longer substantially limits, a major life activity
may need permission to miss a class or have a schedule change as a
reasonable modification that would permit him or her to attend
follow-up or monitoring appointments from a health care provider.

Sections 35.108(f) and 36.105(f)--Is Regarded as Having Such an
Impairment

The ``regarded as having such an impairment'' prong of the
definition of ``disability'' was included in the ADA specifically to
protect individuals who might not meet the first two prongs of the
definition, but who were subject to adverse decisions by covered
entities based upon unfounded concerns, mistaken beliefs, fears,
myths, or prejudices about persons with disabilities. See 154 Cong.
Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers).
The rationale for the ``regarded as'' part of the definition of
``disability'' was articulated by the Supreme Court in the context
of section 504 of the Rehabilitation Act of 1973 in School Board of
Nassau County v. Arline, 480 U.S. 273 (1987). In Arline, the Court
noted that, although an individual may have an impairment that does
not diminish his or her physical or mental capabilities, it could
``nevertheless substantially limit that person's ability to work as
a result of the negative reactions of others to the impairment.''
Id. at 283. Thus, individuals seeking the protection of the ADA
under the ``regarded as'' prong only had to show that a covered
entity took some action prohibited by the statute because of an
actual or perceived impairment. At the time of the Arline decision,
there was no requirement that the individual demonstrate that he or
she, in fact, had or was perceived to have an impairment that
substantially limited a major life activity. See 154 Cong. Rec.
S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers). For
example, if a daycare center refused to admit a child with burn
scars because of the presence of the scars, then the daycare center
regarded the child as an individual with a disability, regardless of
whether the child's scars substantially limited a major life
activity.
In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the
Supreme Court significantly narrowed the application of this prong,
holding that individuals who asserted coverage under the ``regarded
as having such an impairment'' prong had to establish either that
the covered entity mistakenly believed that the individual had a
physical or mental impairment that substantially limited a major
life activity, or that the covered entity mistakenly believed that
``an actual, nonlimiting impairment substantially limit[ed]'' a
major life activity, when in fact the impairment was not so
limiting. Id. at 489. Congress expressly rejected this standard in
the ADA Amendments Act by amending the ADA to clarify that it is
sufficient for an individual to establish that the covered entity
regarded him or her as having an impairment, regardless of whether
the individual actually has the impairment or whether the impairment
constitutes a disability under the Act. 42 U.S.C. 12102(3)(A). This
amendment restores Congress's intent to allow individuals to
establish coverage under the ``regarded as'' prong by showing that
they were treated adversely because of an actual or perceived
impairment without having to establish the covered entity's beliefs
concerning the severity of the impairment. See H.R. Rep. No. 110-
730, pt. 2, at 18 (2008).
Thus, under the ADA as amended, it is not necessary, as it was
prior to the ADA Amendments Act and following the Supreme Court's
decision in Sutton, for an individual to demonstrate that a covered
entity perceived him as substantially limited in the ability to
perform a major life activity in order for the individual to
establish that he or she is covered under the ``regarded as'' prong.
Nor is it necessary to demonstrate that the impairment relied on by
a covered entity is (in the case of an actual impairment) or would
be (in the case of a perceived impairment) substantially limiting
for an individual to be ``regarded as having such an impairment.''
In short, to be covered under the ``regarded as'' prong, an
individual is not subject to any functional test. See 154 Cong. Rec.
S8843 (daily ed. Sept. 16, 2008) (Statement of the Managers) (``The
functional limitation imposed by an impairment is irrelevant to the
third `regarded as' prong.''); H.R. Rep. No. 110-730, pt. 2, at 17
(2008) (``[T]he individual is not required to show that the
perceived impairment limits performance of a major life activity.'')
The concepts of ``major life activities'' and ``substantial
limitation'' simply are not relevant in evaluating whether an
individual is ``regarded as having such an impairment.''
In the NPRM, the Department proposed Sec. Sec. 35.108(f)(1) and
36.105(f)(1), which are intended to restore the meaning of the
``regarded as'' prong of the definition of ``disability'' by adding
language that incorporates the amended statutory provision: ``An
individual is `regarded as having such an impairment' if the
individual is subjected to an action prohibited by the ADA because
of an actual or perceived physical or mental impairment, whether or
not that impairment substantially limits, or is perceived to
substantially limit, a major life activity, except for an impairment
that is both transitory and minor.''
The proposed provisions also incorporate the statutory
definition of transitory impairment, stating that a ``transitory
impairment is an impairment with an actual or expected duration of
six months or less.'' The ``transitory and minor'' exception was not
in the third prong in the original statutory definition of
``disability.'' Congress added this exception to address concerns
raised by the business community that ``absent this exception, the
third prong of the definition would have covered individuals who are
regarded as having common ailments like the cold or flu.'' See H.R.
Rep. No. 110-730, pt. 2, at 18 (2008). However, as an exception to
the general rule for broad coverage under the ``regarded as'' prong,
this limitation on coverage should be construed narrowly. Id. The
ADA Amendments Act did not define ``minor.''
In addition, proposed Sec. Sec. 35.108(f)(2) and 36.105(f)(2)
stated that any time a public entity or covered entity takes a
prohibited action because of an individual's actual or perceived
impairment, even if the entity asserts, or may or does ultimately
establish, a defense to such action, that individual is ``regarded
as'' having such an impairment. Commenters on these provisions
recommended that the Department revise its language to clarify that
the determination of whether an impairment is in fact ``transitory
and minor'' is an objective determination and that a covered entity
may not defeat ``regarded as'' coverage of an individual simply by
demonstrating that it subjectively believed that the impairment is
transitory and minor. In addition, a number of commenters cited the
EEOC title I rule at 29 CFR 1630.15(f) and asked the Department to
clarify that ``the issue of whether an actual or perceived
impairment is `transitory and minor' is an affirmative defense and
not part of the plaintiff's burden of proof.'' The Department agrees
with these commenters and has revised paragraphs (1) and (2) of
these sections for clarity, as shown in Sec. Sec. 35.108(f)(2) and
36.105(f)(2) of the final rule.
The revised language makes clear that the relevant inquiry under
these sections is whether the actual or perceived impairment that is
the basis of the covered entity's action is objectively ``transitory
and minor,'' not whether the covered entity claims it subjectively
believed the impairment was transitory and minor. For example, a
private school that expelled a student whom it believes has bipolar
disorder cannot take advantage of this exception by asserting that
it believed the student's impairment was transitory and minor,
because bipolar disorder is not objectively transitory and minor.
Similarly, a public swimming pool that refused to admit an
individual with a skin rash, mistakenly believing the rash to be
symptomatic of HIV, will have ``regarded'' the individual as having
a disability. It is not a defense to coverage that the skin rash was
objectively transitory and minor because the covered entity took the
prohibited action based on a perceived impairment, HIV, that is not
transitory and minor.
The revised regulatory text also makes clear that the
``transitory and minor'' exception to a ``regarded as'' claim is a
defense to a claim of discrimination and not part of an individual's
prima facie case. The

[[Page 53240]]

Department reiterates that to fall within this exception, the actual
or perceived impairment must be both transitory (less than six
months in duration) and minor. For example, an individual with a
minor back injury could be ``regarded as'' an individual with a
disability if the back impairment lasted or was anticipated to last
more than six months. The Department notes that the revised
regulatory text is consistent with the EEOC rule which added the
transitory and minor exception to its general affirmative defense
provision in its title I ADA regulation at 29 CFR 1630.15(f).
Finally, in the NPRM, the Department proposed Sec. Sec.
35.108(f)(3) and 36.105(f)(3) which provided that an individual who
is ``regarded as having such an impairment'' does not establish
liability based on that alone. Instead, an individual can establish
liability only when an individual proves that a private entity or
covered entity discriminated on the basis of disability within the
meaning of the ADA. This provision was intended to make it clear
that in order to establish liability, an individual must establish
coverage as a person with a disability, as well as establish that he
or she had been subjected to an action prohibited by the ADA.
The Department received no comments on the language in these
paragraphs. Upon consideration, in the final rule, the Department
has decided to retain the regulatory text for Sec. Sec.
35.108(f)(3) and 36.105(f)(3) except that the reference to ``covered
entity'' in the title III regulatory text is changed to ``public
accommodation.''

Sections 35.108(g) and 36.105(g)--Exclusions

The NPRM did not propose changes to the text of the existing
exclusions contained in paragraph (5) of the definition of
``disability'' in the title II and title III regulations, see 28 CFR
35.104, 36.104, which are based on 42 U.S.C. 12211(b), a statutory
provision that was not modified by the ADA Amendments Act. The NPRM
did propose to renumber these provisions, relocating them at
Sec. Sec. 35.108(g) and 36.105(g) of the Department's revised
definition of ``disability.'' The Department received no comments on
the proposed renumbering, which is retained in the final rule.

Sections 35.130(b)(7)(i)--General Prohibitions Against
Discrimination and 36.302(g)--Modifications in Policies, Practices,
or Procedures

The ADA Amendments Act revised the ADA to specify that a public
entity under title II, and any person who owns, leases (or leases
to), or operates a place of public accommodation under title III,
``need not provide a reasonable accommodation or a reasonable
modification to policies, practices, or procedures to an individual
who meets the definition of disability'' solely on the basis of
being regarded as having an impairment. 42 U.S.C. 12201(h). In the
NPRM, the Department proposed Sec. Sec. 35.130(b)(7)(i) and
36.302(g) to reflect this concept, explaining that a public entity
or covered entity ``is not required to provide a reasonable
modification to an individual who meets the definition of disability
solely under the `regarded as' prong of the definition of
disability.'' These provisions clarify that the duty to provide
reasonable modifications arises only when the individual establishes
coverage under the first or second prong of the definition of
``disability.'' These provisions are not intended to diminish the
existing obligations to provide reasonable modifications under title
II and title III of the ADA.
The Department received no comments associated with these
provisions and retains the NPRM language in the final rule except
for replacing the words ``covered entity'' with ``public
accommodation'' in Sec. 36.302(g).

Sections 35.130(i) and 36.201(c)--Claims of No Disability

The ADA as amended provides that ``[n]othing in this [Act] shall
provide the basis for a claim by an individual without a disability
that the individual was subject to discrimination because of the
individual's lack of disability.'' 42 U.S.C. 12201(g). In the NPRM
the Department proposed adding Sec. Sec. 35.130(i) and 36.201(c) to
the title II and title III regulations, respectively, which
incorporate similar language. These provisions clarify that persons
without disabilities do not have an actionable claim under the ADA
on the basis of not having a disability.
The Department received no comments associated with this issue
and has retained these provisions in the final rule.

Effect of ADA Amendments Act on Academic Requirements in
Postsecondary Education

The Department notes that the ADA Amendments Act revised the
rules of construction in title V of the ADA by including a provision
affirming that nothing in the Act changed the existing ADA
requirement that covered entities provide reasonable modifications
in policies, practices, or procedures unless the entity can
demonstrate that making such modifications, including academic
requirements in postsecondary education, would fundamentally alter
the nature of goods, services, facilities, privileges, advantages,
or accommodations involved. See 42 U.S.C. 12201(f). Congress noted
that the reference to academic requirements in postsecondary
education was included ``solely to provide assurances that the bill
does not alter current law with regard to the obligations of
academic institutions under the ADA, which we believe is already
demonstrated in case law on this topic. Specifically, the reference
to academic standards in post-secondary education is unrelated to
the purpose of this legislation and should be given no meaning in
interpreting the definition of disability.'' 154 Cong. Rec. S8843
(daily ed. Sept. 16, 2008) (Statement of the Managers). Given that
Congress did not intend there to be any change to the law in this
area, the Department did not propose to make any changes to its
regulatory requirements in response to this provision of the ADA
Amendments Act.

PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES

0
7. Revise the authority citation for part 36 to read as follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b)
and 12205a.

0
8. Revise Sec. 36.101 to read as follows:

Sec. 36.101 Purpose and broad coverage.

(a) Purpose. The purpose of this part is to implement subtitle A of
title III of the Americans with Disabilities Act of 1990 (42 U.S.C.
12181-12189), as amended by the ADA Amendments Act of 2008 (ADA
Amendments Act) (Pub. L. 110-325, 122 Stat. 3553 (2008)), which
prohibits discrimination on the basis of disability by covered public
accommodations and requires places of public accommodation and
commercial facilities to be designed, constructed, and altered in
compliance with the accessibility standards established by this part.
(b) Broad coverage. The primary purpose of the ADA Amendments Act
is to make it easier for people with disabilities to obtain protection
under the ADA. Consistent with the ADA Amendments Act's purpose of
reinstating a broad scope of protection under the ADA, the definition
of ``disability'' in this part shall be construed broadly in favor of
expansive coverage to the maximum extent permitted by the terms of the
ADA. The primary object of attention in cases brought under the ADA
should be whether entities covered under the ADA have complied with
their obligations and whether discrimination has occurred, not whether
the individual meets the definition of ``disability.'' The question of
whether an individual meets the definition of ``disability'' under this
part should not demand extensive analysis.

0
9. Amend Sec. 36.104 by revising the definition of ``Disability'' to
read as follows:

Sec. 36.104 Definitions.

* * * * *
Disability. The definition of disability can be found at Sec.
36.105.
* * * * *

0
10. Add Sec. 36.105 to subpart A to read as follows:

Sec. 36.105 Definition of ``disability.''

(a)(1) Disability means, with respect to an individual:
(i) A physical or mental impairment that substantially limits one
or more of the major life activities of such individual;

[[Page 53241]]

(ii) A record of such an impairment; or
(iii) Being regarded as having such an impairment as described in
paragraph (f) of this section.
(2) Rules of construction. (i) The definition of ``disability''
shall be construed broadly in favor of expansive coverage, to the
maximum extent permitted by the terms of the ADA.
(ii) An individual may establish coverage under any one or more of
the three prongs of the definition of ``disability'' in paragraph
(a)(1) of this section, the ``actual disability'' prong in paragraph
(a)(1)(i) of this section, the ``record of'' prong in paragraph
(a)(1)(ii) of this section, or the ``regarded as'' prong in paragraph
(a)(1)(iii) of this section.
(iii) Where an individual is not challenging a public
accommodation's failure to provide reasonable modifications under Sec.
36.302, it is generally unnecessary to proceed under the ``actual
disability'' or ``record of'' prongs, which require a showing of an
impairment that substantially limits a major life activity or a record
of such an impairment. In these cases, the evaluation of coverage can
be made solely under the ``regarded as'' prong of the definition of
``disability,'' which does not require a showing of an impairment that
substantially limits a major life activity or a record of such an
impairment. An individual may choose, however, to proceed under the
``actual disability'' or ``record of'' prong regardless of whether the
individual is challenging a public accommodation's failure to provide
reasonable modifications.
(b)(1) Physical or mental impairment means:
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body systems,
such as: Neurological, musculoskeletal, special sense organs,
respiratory (including speech organs), cardiovascular, reproductive,
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin,
and endocrine; or
(ii) Any mental or psychological disorder such as intellectual
disability, organic brain syndrome, emotional or mental illness, and
specific learning disability.
(2) Physical or mental impairment includes, but is not limited to,
contagious and noncontagious diseases and conditions such as the
following: Orthopedic, visual, speech and hearing impairments, and
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, intellectual disability, emotional
illness, dyslexia and other specific learning disabilities, Attention
Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection
(whether symptomatic or asymptomatic), tuberculosis, drug addiction,
and alcoholism.
(3) Physical or mental impairment does not include homosexuality or
bisexuality.
(c)(1) Major life activities include, but are not limited to:
(i) Caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, sitting, reaching, lifting,
bending, speaking, breathing, learning, reading, concentrating,
thinking, writing, communicating, interacting with others, and working;
and
(ii) The operation of a major bodily function, such as the
functions of the immune system, special sense organs and skin, normal
cell growth, and digestive, genitourinary, bowel, bladder,
neurological, brain, respiratory, circulatory, cardiovascular,
endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems.
The operation of a major bodily function includes the operation of an
individual organ within a body system.
(2) Rules of construction. (i) In determining whether an impairment
substantially limits a major life activity, the term major shall not be
interpreted strictly to create a demanding standard.
(ii) Whether an activity is a major life activity is not determined
by reference to whether it is of central importance to daily life.
(d) Substantially limits--(1) Rules of construction. The following
rules of construction apply when determining whether an impairment
substantially limits an individual in a major life activity.
(i) The term ``substantially limits'' shall be construed broadly in
favor of expansive coverage, to the maximum extent permitted by the
terms of the ADA. ``Substantially limits'' is not meant to be a
demanding standard.
(ii) The primary object of attention in cases brought under title
III of the ADA should be whether public accommodations have complied
with their obligations and whether discrimination has occurred, not the
extent to which an individual's impairment substantially limits a major
life activity. Accordingly, the threshold issue of whether an
impairment substantially limits a major life activity should not demand
extensive analysis.
(iii) An impairment that substantially limits one major life
activity does not need to limit other major life activities in order to
be considered a substantially limiting impairment.
(iv) An impairment that is episodic or in remission is a disability
if it would substantially limit a major life activity when active.
(v) An impairment is a disability within the meaning of this part
if it substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population. An impairment does not need to prevent, or significantly or
severely restrict, the individual from performing a major life activity
in order to be considered substantially limiting. Nonetheless, not
every impairment will constitute a disability within the meaning of
this section.
(vi) The determination of whether an impairment substantially
limits a major life activity requires an individualized assessment.
However, in making this assessment, the term ``substantially limits''
shall be interpreted and applied to require a degree of functional
limitation that is lower than the standard for substantially limits
applied prior to the ADA Amendments Act.
(vii) The comparison of an individual's performance of a major life
activity to the performance of the same major life activity by most
people in the general population usually will not require scientific,
medical, or statistical evidence. Nothing in this paragraph (d)(1) is
intended, however, to prohibit or limit the presentation of scientific,
medical, or statistical evidence in making such a comparison where
appropriate.
(viii) The determination of whether an impairment substantially
limits a major life activity shall be made without regard to the
ameliorative effects of mitigating measures. However, the ameliorative
effects of ordinary eyeglasses or contact lenses shall be considered in
determining whether an impairment substantially limits a major life
activity. Ordinary eyeglasses or contact lenses are lenses that are
intended to fully correct visual acuity or to eliminate refractive
error.
(ix) The six-month ``transitory'' part of the ``transitory and
minor'' exception in paragraph (f)(2) of this section does not apply to
the ``actual disability'' or ``record of'' prongs of the definition of
``disability.'' The effects of an impairment lasting or expected to
last less than six months can be substantially limiting within the
meaning of this section for establishing an actual disability or a
record of a disability.
(2) Predictable assessments. (i) The principles set forth in the
rules of

[[Page 53242]]

construction in this section are intended to provide for more generous
coverage and application of the ADA's prohibition on discrimination
through a framework that is predictable, consistent, and workable for
all individuals and entities with rights and responsibilities under the
ADA.
(ii) Applying these principles, the individualized assessment of
some types of impairments will, in virtually all cases, result in a
determination of coverage under paragraph (a)(1)(i) of this section
(the ``actual disability'' prong) or paragraph (a)(1)(ii) of this
section (the ``record of'' prong). Given their inherent nature, these
types of impairments will, as a factual matter, virtually always be
found to impose a substantial limitation on a major life activity.
Therefore, with respect to these types of impairments, the necessary
individualized assessment should be particularly simple and
straightforward.
(iii) For example, applying these principles it should easily be
concluded that the types of impairments set forth in paragraphs
(d)(2)(iii)(A) through (K) of this section will, at a minimum,
substantially limit the major life activities indicated. The types of
impairments described in this paragraph may substantially limit
additional major life activities (including major bodily functions) not
explicitly listed in paragraphs (d)(2)(iii)(A) through (K).
(A) Deafness substantially limits hearing;
(B) Blindness substantially limits seeing;
(C) Intellectual disability substantially limits brain function;
(D) Partially or completely missing limbs or mobility impairments
requiring the use of a wheelchair substantially limit musculoskeletal
function;
(E) Autism substantially limits brain function;
(F) Cancer substantially limits normal cell growth;
(G) Cerebral palsy substantially limits brain function;
(H) Diabetes substantially limits endocrine function;
(I) Epilepsy, muscular dystrophy, and multiple sclerosis each
substantially limits neurological function;
(J) Human Immunodeficiency Virus (HIV) infection substantially
limits immune function; and
(K) Major depressive disorder, bipolar disorder, post-traumatic
stress disorder, traumatic brain injury, obsessive compulsive disorder,
and schizophrenia each substantially limits brain function.
(3) Condition, manner, or duration.(i) At all times taking into
account the principles set forth in the rules of construction, in
determining whether an individual is substantially limited in a major
life activity, it may be useful in appropriate cases to consider, as
compared to most people in the general population, the conditions under
which the individual performs the major life activity; the manner in
which the individual performs the major life activity; or the duration
of time it takes the individual to perform the major life activity, or
for which the individual can perform the major life activity.
(ii) Consideration of facts such as condition, manner, or duration
may include, among other things, consideration of the difficulty,
effort or time required to perform a major life activity; pain
experienced when performing a major life activity; the length of time a
major life activity can be performed; or the way an impairment affects
the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side
effects of medication or burdens associated with following a particular
treatment regimen, may be considered when determining whether an
individual's impairment substantially limits a major life activity.
(iii) In determining whether an individual has a disability under
the ``actual disability'' or ``record of'' prongs of the definition of
``disability,'' the focus is on how a major life activity is
substantially limited, and not on what outcomes an individual can
achieve. For example, someone with a learning disability may achieve a
high level of academic success, but may nevertheless be substantially
limited in one or more major life activities, including, but not
limited to, reading, writing, speaking, or learning because of the
additional time or effort he or she must spend to read, write, speak,
or learn compared to most people in the general population.
(iv) Given the rules of construction set forth in this section, it
may often be unnecessary to conduct an analysis involving most or all
of the facts related to condition, manner, or duration. This is
particularly true with respect to impairments such as those described
in paragraph (d)(2)(iii) of this section, which by their inherent
nature should be easily found to impose a substantial limitation on a
major life activity, and for which the individualized assessment should
be particularly simple and straightforward.
(4) Mitigating measures include, but are not limited to:
(i) Medication, medical supplies, equipment, appliances, low-vision
devices (defined as devices that magnify, enhance, or otherwise augment
a visual image, but not including ordinary eyeglasses or contact
lenses), prosthetics including limbs and devices, hearing aid(s) and
cochlear implant(s) or other implantable hearing devices, mobility
devices, and oxygen therapy equipment and supplies;
(ii) Use of assistive technology;
(iii) Reasonable modifications or auxiliary aids or services as
defined in this regulation;
(iv) Learned behavioral or adaptive neurological modifications; or
(v) Psychotherapy, behavioral therapy, or physical therapy.
(e) Has a record of such an impairment. (1) An individual has a
record of such an impairment if the individual has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(2) Broad construction. Whether an individual has a record of an
impairment that substantially limited a major life activity shall be
construed broadly to the maximum extent permitted by the ADA and should
not demand extensive analysis. An individual will be considered to fall
within this prong of the definition of ``disability'' if the individual
has a history of an impairment that substantially limited one or more
major life activities when compared to most people in the general
population, or was misclassified as having had such an impairment. In
determining whether an impairment substantially limited a major life
activity, the principles articulated in paragraph (d)(1) of this
section apply.
(3) Reasonable modification. An individual with a record of a
substantially limiting impairment may be entitled to a reasonable
modification if needed and related to the past disability.
(f) Is regarded as having such an impairment. The following
principles apply under the ``regarded as'' prong of the definition of
``disability'' (paragraph (a)(1)(iii) of this section):
(1) Except as set forth in paragraph (f)(2) of this section, an
individual is ``regarded as having such an impairment'' if the
individual is subjected to a prohibited action because of an actual or
perceived physical or mental impairment, whether or not that impairment
substantially limits, or is perceived to substantially limit, a major
life activity, even if the public accommodation asserts, or may or does
ultimately establish, a defense to the action prohibited by the ADA.
(2) An individual is not ``regarded as having such an impairment''
if the public accommodation demonstrates that the impairment is,
objectively, both

[[Page 53243]]

``transitory'' and ``minor.'' A public accommodation may not defeat
``regarded as'' coverage of an individual simply by demonstrating that
it subjectively believed the impairment was transitory and minor;
rather, the public accommodation must demonstrate that the impairment
is (in the case of an actual impairment) or would be (in the case of a
perceived impairment), objectively, both ``transitory'' and ``minor.''
For purposes of this section, ``transitory'' is defined as lasting or
expected to last six months or less.
(3) Establishing that an individual is ``regarded as having such an
impairment'' does not, by itself, establish liability. Liability is
established under title III of the ADA only when an individual proves
that a public accommodation discriminated on the basis of disability
within the meaning of title III of the ADA, 42 U.S.C. 12181-12189.
(g) Exclusions. The term ``disability'' does not include--
(1) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current
illegal use of drugs.

Subpart B--General Requirements

0
11. Amend Sec. 36.201 by adding paragraph (c) to read as follows:

Sec. 36.201 General.

* * * * *
(c) Claims of no disability. Nothing in this part shall provide the
basis for a claim that an individual without a disability was subject
to discrimination because of a lack of disability, including a claim
that an individual with a disability was granted a reasonable
modification that was denied to an individual without a disability.

Subpart C--Specific Requirements

0
12. Amend Sec. 36.302 by adding paragraph (g) to read as follows:

Sec. 36.302 Modifications in policies, practices, or procedures.

* * * * *
(g) Reasonable modifications for individuals ``regarded as'' having
a disability. A public accommodation is not required to provide a
reasonable modification to an individual who meets the definition of
``disability'' solely under the ``regarded as'' prong of the definition
of ``disability'' at Sec. 36.105(a)(1)(iii).
* * * * *

0
13. Add appendix E to part 36 to read as follows:

Appendix E--Guidance to Revisions to ADA Title II and Title III
Regulations Revising the Meaning and Interpretation of the Definition
of ``disability'' and Other Provisions in Order To Incorporate the
Requirements of the ADA Amendments Act

For guidance providing a section-by-section analysis of the
revisions to 28 CFR parts 35 and 36 published on August 11, 2016,
see appendix C of 28 CFR part 35.

Dated: July 15, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-17417 Filed 8-10-16; 8:45 a.m.]
BILLING CODE 4410-13-P