"Primary Consideration" —
The 7 Mistakes Under 28 CFR § 35.160(b)(2)
Two words at the end of one regulation account for a disproportionate share of DOJ ADA findings against municipalities: "primary consideration." The phrase appears in 28 CFR § 35.160(b)(2). It is the single most-litigated standard in the effective-communication mandate, and the seven most common ways entities mishandle it are remarkably consistent across jurisdictions and across decades. This guide walks each mistake, the regulatory text, and the workflow that satisfies the standard. For the broader regulatory context, see our ADA Title II effective communication guide.
Disclaimer: Informational analysis of federal regulations. Not legal advice. Consult ADA counsel for entity-specific guidance.
What the Regulation Actually Says
The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities.
Three things are doing work in this paragraph:
- A three-factor test for what aid is appropriate (method, complexity, context).
- An affirmative duty to ask the individual.
- An affirmative duty to give weight to the answer.
The seven mistakes below all originate in misreading one or more of those three duties.
The 7 Mistakes
Treating the individual's preference as a veto right
Some entities read "primary consideration" as "the individual decides." They then face a request they cannot fulfill (an interpreter on 5-minute notice for a walk-in), refuse, and end up with a finding.
Treating the individual's preference as advisory
The opposite failure. The entity asks, hears the answer, ignores it, provides whatever the entity finds most convenient, and treats the asking as the sum of its obligation. The regulation requires weighting, not just asking.
No written documentation
Verbal compliance is invisible in litigation. The entity may have done everything right at the counter; if there is no record, the file is empty when DOJ asks.
Forgetting companions
28 CFR § 35.160(a)(1) extends effective communication to "applicants, participants, members of the public, and companions." A deaf parent attending a child's school enrollment, a nonverbal caregiver accompanying a patient — both are entitled to the same standard. Municipalities frequently overlook the companion case.
Wrong-context aid — interpreter for a 2-minute transaction
The opposite of the more famous failure. An entity defaults to "we'll get an interpreter" for every interaction. A deaf patron arrives to pay a parking ticket. Staff make the patron wait 90 minutes for an interpreter to arrive. The interpreter was overkill for a 90-second transaction; a picture-based auxiliary device would have resolved the interaction immediately. The patron experiences disparate treatment by virtue of the wait, even though the entity provided the most-expensive aid available.
No real-time bridge — 24-hour ASL turnaround
An entity contracts with an interpreter service but has no immediate-response capability. A walk-in patron is told to come back tomorrow. The DOJ position is that "delayed access is denied access" for walk-in transactional interactions.
Failure to ask
The most basic mistake and the most common. Staff see the patron is deaf or limited-English-proficient, defaults to whatever the entity always does, and never asks the patron what they need. The regulation's affirmative duty is asking — not guessing.
The Documented Workflow That Satisfies the Standard
Five steps. Trainable. Auditable. Defensible.
- Ask — one open question: "How would you like to communicate with us today?"
- Listen and weight — treat the answer as the starting point, not a data point.
- Offer — the requested aid if available; an equally effective alternative if not, with the equal-effectiveness reasoning prepared in advance for the common substitutions.
- Confirm — check that the patron is satisfied the aid is working. If not, escalate.
- Document — date, counter, ask, offer, reasoning if different, acknowledgment.
The five steps in 30 seconds. The entire workflow can be completed in under half a minute at most counters. The compliance gap is not time; it is training and habit.
The Three-Factor Test Worked Through
Each interaction at a public counter can be evaluated quickly using the regulation's own three factors:
Factor 1 — Method of communication
Visual, auditory, tactile, multilingual, AAC-symbolic. Different aids fit different methods. A QR-based auxiliary device covers multiple methods simultaneously, which is what makes it a useful first-line aid.
Factor 2 — Nature, length, and complexity
Transactional (2–10 minutes, known topic): auxiliary device. Extended (30+ minutes, technical detail): qualified interpreter or CART. Complex (legal proceedings, medical informed consent): both, plus advance notice and scheduling.
Factor 3 — Context
Routine permit window: auxiliary device suffices. High-stakes (criminal interrogation, mental-health intake): the aid must rise to the stakes. The auxiliary device may still serve as the immediate bridge while the appropriate specialized aid arrives.
What Documentation Looks Like
A primary-consideration log entry, in minimal form:
Counter: Town Hall, Permit Window 2
Patron asked for: ASL interpreter for parking permit pickup
Aid offered: QR-based picture communication board (transactional interaction, ~3 minutes)
Equal-effectiveness reasoning: Permit pickup is a structured transactional interaction; picture board supports yes/no, signature confirmation, and identity verification; interpreter arrival time would exceed the patron's stated availability.
Patron acknowledged offer: Yes, completed transaction in <5 minutes.
Staff member: [initials]
Nothing elaborate. Nothing legalistic. The entry simply makes verbal compliance visible.
How to Audit Your Workflow Today
- Mystery-shop a deaf walk-in — does any staff member ask the open question?
- Pull six months of primary-consideration log entries — do they exist?
- Ask the front-line manager about the equal-effectiveness reasoning for the most common substitution — can they articulate it?
- Pull the interpreter contract — what is the median response time? Is it acceptable for walk-ins?
- Walk the counter as a companion of a covered participant — does the workflow extend?
- Time the device-first interaction end-to-end — under 5 minutes for routine transactions?
Frequently Asked Questions
What does "primary consideration" mean under the ADA?
28 CFR § 35.160(b)(2) requires public entities to "give primary consideration to the requests of individuals with disabilities" when choosing an auxiliary aid. The entity must ask, weigh the answer seriously, and provide the requested aid unless an equally effective alternative is available. It is materially more than advisory and materially less than a veto right.
Can an entity substitute a different aid for the one requested?
Yes, if the alternative actually provides effective communication for the specific interaction. The entity bears the burden of demonstrating equal effectiveness. The 35.160(b)(2) three-factor test (method of communication, nature/length/complexity, context) governs the analysis. Modern auxiliary devices often satisfy the equal-effectiveness test for transactional interactions; they do not for extended ones.
How should we document primary consideration?
Five elements: date and counter, what the patron asked for, what the entity offered, the equal-effectiveness reasoning if the offer differed, and the patron's acknowledgment. The log can be a one-line entry on a paper sheet or an entry in any logging system. Verbal compliance without documentation is invisible in litigation.
What's the single most common mistake municipalities make?
Failure to ask. Staff sees the patron is deaf, defaults to whatever the entity always does, and never asks the patron what they need. The regulation's affirmative duty is asking; it is the cheapest mistake to fix and the most common one to make.
Does primary consideration apply to companions?
Yes. 28 CFR § 35.160(a)(1) extends effective communication to companions of participants. A deaf parent attending a child's school enrollment is entitled to the same standard the student receives. Train staff that companions are a covered category; the workflow runs the same way.
TinkyTown's position: Primary consideration is workflow, not aspiration. The five-step ask-listen-offer-confirm-document loop closes the most-common failure mode. Pair the loop with an always-available auxiliary device and you eliminate both the wrong-aid mistake and the no-aid mistake in the same deployment.