In the NPRM, the Department proposed adding ‘‘companion” to the scope of coverage under § 35.160 to codify the Department’s longstanding position that a public entity’s obligation to ensure effective communication extends not just to applicants, participants, and members of the public with disabilities, but to companions as well, if any of them are individuals with disabilities. In the NPRM, the Department also sought input on whether it should establish a program accessibility requirement that public entities modify additional cells at a detention or correctional facility to incorporate the accessibility features needed by specific inmates with mobility disabilities when the number of cells required by sections 232.2 and 232.3 of the 2004 ADAAG are inadequate to meet the needs of their inmate population. One group of commenters voiced concern about accessibility being provided in a timely manner and recommended that the rule specify that the program accessibility requirement applies while waiting for the accessibility modifications. A group with experience addressing inmate needs recommended the inmate’s input should be required to prevent inappropriate segregation or placement in an inaccessible or inappropriate area. One large association commented that it receives many inmate complaints that announcements are made over loudspeakers or public address systems, and that inmates who do not hear announcements for inmate count or other instructions face disciplinary action for failure to comply.

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206 (1998), stated explicitly that the ADA covers the operations of State prisons; accordingly, title II’s program accessibility requirements apply to State and local correctional and detention facilities. Program requirements. In a unanimous decision, the Supreme Court, in Pennsylvania Department of Corrections v. Yeskey, 524 U.S. Since promulgation of the 1991 title II regulation, the Department has investigated hundreds of complaints alleging failures by public entities to provide effective communication, and many of these investigations resulted in settlement agreements and consent decrees. Section 35.160 of the 1991 title II regulation requires a public entity to take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others. There are many situations in which the interests of program participants without disabilities require that their companions with disabilities be provided effective communication. Examples of such situations include back-to- school nights or parent-teacher conferences at a public school.

These commenters asked that the Department limit the public entity’s obligation to communicate effectively with a companion to situations where such communications are necessary to serve the interests of the person who is receiving the public entity’s services. Some in the medical community objected to the inclusion of any regulatory language regarding companions, asserting that such language is overbroad, seeks services for individuals whose presence is not required by the public entity, is not necessary for the delivery of the services or participation in the program, and places additional burdens on the medical community. Still others requested explicit clarification that where the individual seeking access to or participating in the public entity’s program, services, or activities requires auxiliary aids and cam girl Websites services, but the companion does not, the public entity may not seek out, or limit its communications to, the companion instead of communicating directly with the individual with a disability when it would be appropriate to do so.

The Department notes that § 35.150(a)(3) states that a public entity is not required to take ‘‘any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.” Thus, corrections systems would not have to comply with the requirements of § 35.152(b)(1) in any specific circumstance where these defenses are met. In light of the Supreme Court’s decision in Yeskey and the requirements of title II, however, it is critical that public entities provide these opportunities to inmates with disabilities. Some commenters asked the Department to clarify that a companion with a disability may be entitled to effective communication from a public entity even though the applicants, participants, or members of the general public seeking access to, or participating in, the public entity’s services, programs, or activities are not individuals with disabilities. The Department has considered the concerns raised by the commenters with respect to this section and recognizes that corrections systems may move inmates routinely and for a variety of reasons, such as crowding, safety, security, classification change, need for specialized programs, or to provide medical care.