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The preamble to the proposed rule contained a statement that some
interpreted as encouraging the continuation of separate schools,
sheltered workshops, special recreational programs, and other similar
programs. It is important to emphasize that Sec. 36.202(c) only calls
for separate programs when such programs are necessary to provide as
effective an opportunity to individuals with disabilities as to other
individuals. Likewise, Sec. 36.203(a) only permits separate programs
when a more integrated setting would not be appropriate. Separate
programs are permitted, then, in only limited circumstances. The
sentence at issue has been deleted from the preamble because it was too
broadly stated and had been erroneously interpreted as Departmental
encouragement of separate programs without qualification.
The proposed rule's reference in Sec. 36.203(b) to separate
programs or activities provided in accordance with this section has
been changed to this subpart in recognition of the fact that
separate programs or activities may, in some limited circumstances, be
permitted not only by Sec. 36.203(a) but also by Sec. 36.202(c).
In addition, some commenters suggested that the individual with the
disability is the only one who can decide whether a setting is appropriate and what the needs are. Others suggested that only
the public accommodation can make these determinations. The regulation
does not give exclusive responsibility to either party. Rather, the
determinations are to be made based on an objective view, presumably one
which would take into account views of both parties.
(Code of Federal Regulations. Title 28, Volume 1. TITLE 28--JUDICIAL ADMINISTRATION. CHAPTER
I--DEPARTMENT OF JUSTICE. PART 36_NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES CITE: 28CFR36)
