Below is a summary of revised ADA regulations which are in the NPRM
public comment stage. There are directions for submitting public
comments which are due 08/18/2008.
The piece is well written, and these regulations basically have not
been revised in 16 years.
Briefly, Some of the items to comment on include:
1. Need for DOJ to treat internet sites as places of public
accommodation. Captcha, flash, and other items that currently pose
accessibility barriers are examples that could be sited to DOJ.
Popular internet sites like Myspace, TicketMaster, etc. have these
accessibility issues that have not been voluntarily addressed by the
entities. Also the NFB Target suit may be narrowly interpretted by
the courts since it relies on that company having physical stores in
its ADA Title III claims;
2. Need for DOJ to clarrify effective communication to specify that
entities must provide accessible formats. E.g. tell DOJ stories about
how you went to restaurants and they ask you “what do you want,”
rather than providing meaningful access to the menu. Tell any other
stories where you have been denied effective communication in a place
of public accommodation? How many hotels provide Braille guest
service information? How many malls provide directories in Braille?
3. Need for DOJ to initiate regulations on so-called “equipment.”
Describe stories where kiosks, telephone systems, copy machines,
vending machines, or any other device or equipment was not accessible.
For instance, how accessible are most digital hotel thermostats? How
accessible are most vending machines for a blind person to operate
independently? How accessible are kiosks in the private sector?
Regulations are much more specific for physical disabilities, for
example, inaccessible water fountains must have water cups and a
dispenser for people physically unable to access the water fountain.
(see the accompanying material for more topic areas)
The ADA as it stands now, largely due to a lack of specificity in
regards to these types of requirements, has failed the blind of
America. Other disability groups have made much greater strides,
namely those with physical limitations and the deaf. The environment
has largely been modified to accommodate these groups, but has not
been modified in a similar way to accommodate accessibility needs of
the blind.
I am going to try to interview Mark Richert next week, and hopefully
will have some more information on this. But public comments should
be submitted as soon as possible.
AFB DirectConnect Letterhead
ALERT!–Individual Comments Needed on Proposed ADA Regulations–Action
Needed Now!
July 29, 2008
For further information, contact, Mark Richert, Esq., Director, Public
Policy, American Foundation for the Blind (AFB), 202-822-0833 or
mrichert@afb.net.
Summary
Since the U.S. Department of Justice (DOJ) released its proposed
revisions to the regulations implementing Titles II and III of the
Americans with Disabilities Act (ADA), DOJ has received literally
hundreds of written comments from individuals with disabilities and
others. Precious few of those comments, however, reflect the concerns of
the vision loss community, and it is imperative that many more
individuals participate in this critical process.
This alert sets out some of the major issues that advocates may wish to
discuss in written comments to DOJ. While there are other issues in the
proposed regulations that advocates may also wish to react to, the
issues flagged below are those of particular relevance in the vision
loss context.
Please note that this alert is focused on those portions of DOJ’s
proposed rules having to do with the nondiscrimination obligations of
public accommodations under Title III of the ADA. Title II-related state
and local government and transportation issues, such as the proposed
detectable warnings regulations, are to be addressed separately. Issues
discussed below include–
Clarification of Effective Communication
Equipment Accessibility
Access to Internet-Only Goods and Services
Documentation Justifying Exam Accommodations
Availability of Video Description in Movie Theaters
Definition of Service Animals
Two Actions Requested
First, readers are strongly urged to pass this alert along to other
individuals, networks, or email lists. Please forward this alert in its
entirety with attribution to AFB.
Second, all are strongly urged to make comment to DOJ, no matter how
brief or how detailed, offering reaction to these proposed rules. Each
comment will make a significant difference. Anyone with an interest in
the rights of people with disabilities should participate. Professionals
in the vision loss and disability fields, administrators, board members
and others in organizational and community leadership, parents and
friends, indeed everyone, irrespective of ability, position or
expertise, can make a major contribution by participating even in a
limited way.
Offering comment to DOJ via the Internet is a relatively simple process.
To provide comment on the issues outlined below, use the following
link–
http://www.regulations.gov/fdmspublic/component/main?main=SubmitComment&
o=090000648062a604
Advocates can choose to write their comments into the online submission
form itself or prepare a separate file and attach it to the online form
by following the instructions provided. When offering comment on the
issues discussed below, be sure to begin each topic discussed by using
an appropriate title or phrase, such as “effective communication” or
“service animals.”
All comments are due by Monday, August 18, 2008.
Major Issues and Suggested Approaches for Comment
Clarification of Effective Communication
Issue: The proposed rules fail to adequately address the right of
individuals with vision loss to the effective communication of
information necessary to fully enjoy the goods and services offered by
public accommodations. In truth, the regulations implementing the ADA
have never given full and appropriate voice to the concept of effective
communication. This lack of clarity and specificity, along with the
neglectful ambiguity of other regulatory provisions that fail to
appropriately address equipment and Internet access issues in this
information age, conspire to largely shut people with vision loss out of
full participation in society.
Whether one considers, as examples, the persistent refusal of
restaurants to provide menus in alternate formats, or the reluctance of
many financial institutions or health care providers to offer accessible
statements or meaningful access to confidential records, or retailers’
or travel vendors’ maintenance of largely inaccessible web sites while
charging additional fees to use in-person customer service assistance
(if such assistance is available at all), or the failure of museums to
offer description of their holdings, or pharmacies’ failure to provide
access to patient-specific drug labeling information on prescriptions
they fill, people with vision loss are being denied the ADA’s promise of
full inclusion and independence.
This is largely because the concept of effective communication has not
been articulated with the precision needed to ensure that information
access is provided to people with disabilities on terms of genuine
equality with non-disabled patrons. Without such clarification,
virtually every claim by an individual with a disability for specific
communication-related accommodations is essentially a test case. This
uncertainty must be remedied if the right to information access is to be
assured.
Public accommodations need to know in no uncertain terms what it means
to offer effective communication. When public accommodations opt not to
honor the preference of an individual with vision loss for the type of
accommodation he or she might need to effectively browse a public
accommodation’s offerings, make selections, or independently transact
confidential business, that public accommodation must nevertheless
communicate with the individual in a manner appropriate to the
circumstances.
Whenever possible, people with vision loss must have access to
information without assistance from others when people without
disabilities can access information without another’s assistance. People
with vision loss must be able to maintain the confidentiality of
information they access or provide when people without disabilities are
afforded such confidentiality. People with vision loss must have the
ability to explore all of the options made available by a public
accommodation when people without disabilities can explore all of a
public accommodation’s goods and services free of barriers or
restrictions. In short, while methods for providing effective
communication may differ, the conditions for such communication and the
results of such communication must be the same for all patrons
irrespective of disability.
Suggested Comments: Advocates should comment on the need for greater
clarity in the meaning of effective communication. In offering such
comments, specific examples of information inaccessibility encountered
would be extremely helpful.
In addition, the regulations concerning effective communication should
be amended to make them more meaningful. Specifically, commenters should
ask that subsection (c) of section 36.303 of the current rules entitled
“Auxiliary aids and services” be rewritten as follows–
“(c) Effective communication. A public accommodation shall furnish
appropriate auxiliary aids and services where necessary to ensure
effective communication with individuals with disabilities. To be
effective, such auxiliary aids and services must be furnished to
individuals with disabilities at no additional cost and must result in
the provision of the goods, services, facilities, privileges,
advantages, or accommodations offered by such public accommodation with
the same timeliness of delivery, accuracy and thoroughness of
communication, and opportunity for privacy and independence as is
provided to others.”
Equipment Accessibility
Issue: The proposed regulations fail to address the need for
accessibility to equipment provided by public accommodations. Indeed,
the regulations implementing the ADA have never adequately accounted for
the need for access to equipment by people with disabilities, and the
DOJ is acknowledging as much in the narrative accompanying the proposed
regulations. According to DOJ,
“When the title III regulation was initially proposed in 1991, it
contained a provision concerning accessible equipment, which required
that newly purchased furniture or equipment that was made available for
use at a place of public accommodation be accessible, unless complying
with this requirement would fundamentally alter the goods, services,
facilities, privileges, advantages, or accommodations offered, or would
not be readily achievable. See 56 FR 7452, 7470-71 (Feb. 22, 1991). In
the final title III regulation promulgated in 1991, the Department
decided not to include this provision, explaining in the preamble to the
regulation that ‘its requirements are more properly addressed under
other sections, and . . . there are currently no appropriate
accessibility standards addressing many types of furniture and
equipment.’ 56 FR 35544, 35572 (July 26, 1991). … The Department has
decided to continue with this approach, and not to add any specific
regulatory guidance addressing equipment at this time.”
Unfortunately, the other regulatory provisions that DOJ says should
address free standing equipment accessibility are at best vaguely
applicable. They do not specifically mention equipment accessibility or
provide examples of some of the most commonly used items. Bear in mind
that these same provisions do go into great detail to address physical
accessibility. For example, the rules specifically mention the need for
accessible paper cup dispensers at inaccessible water fountains.
As a result, ADA coverage for most of the equipment to which people with
vision loss need access is at best in doubt. There is no specific
regulatory hook clearly requiring accessibility of, for example,
exercise equipment using electronic interfaces, computers at Internet
cafes or hotel business centers, reservations kiosks used by hotels in
lieu of an in-person check in procedure, and devices provided by medical
facilities with which a patient must interact reliably. Sometimes making
such equipment accessible can be as simple as labeling a few basic
controls in braille or large print, and sometimes equipment
accessibility demands the modification or purchase of additional
software or hardware.
In spite of the fact that DOJ is refusing to address equipment
accessibility in the regulations it intends to publish, DOJ is certainly
aware of the issues. Remarkably, instead of spelling out additional
regulatory requirements per se, the DOJ simply comments in the narrative
accompanying the proposed rules that,
“If a person with a disability does not have full and equal access to a
covered entity’s services because of the lack of accessible equipment,
the entity must provide that equipment, unless doing so would be a
fundamental alteration or would not be readily achievable.”
Suggested Comments: Advocates should strongly urge DOJ to specifically
reference the accessibility of both fixed and free standing equipment in
sections 36.302 and 36.304 entitled “Modifications in Policies,
Practices, or Procedures” and “Removal of Barriers” respectively.
Advocates should call on DOJ to add specific examples of equipment that
best illustrate how its use is key to allowing people with disabilities
to benefit from the goods and services offered by public accommodations
such as private universities, hotels, medical facilities, gymnasia,
business centers, retailers and others.
Additionally, commenters should mention that, since the original ADA
regulations were published over 16 years ago, technology has evolved
well beyond what was ever commonly contemplated at that time. The
combined effect of miniaturization, reduced power consumption, increased
memory and functional capacity, and ever-lowering costs, means that
making electronic and information technology (E&IT) and other equipment
utilizing visual displays accessible is significantly more
accomplishable today.
Finally, as part of its proposed regulations at section 36.303(b), DOJ
has in fact included E&IT as an example of an auxiliary aid or service
that should be provided by a public accommodation. While the inclusion
of this reference as an example of an auxiliary aid or service is
somewhat helpful, and advocates should urge DOJ to retain it, advocates
should also push for clearer and more detailed requirements as described
above.
Access to Internet-Only Goods and Services
Issue: While the ADA and its current implementing regulations do not
specifically address access to a public accommodation’s presence on the
Internet, the DOJ has consistently held that the nondiscrimination
protections of the ADA extend to Internet sites operated by public
accommodations and state and local government entities. Indeed, the DOJ
has issued guidance to state and local government entities to assist
them in making their Internet-related activities more accessible to
people with disabilities.
Nevertheless, ambiguities persist. The recent case against Target
illustrates how courts are likely to affirm the ADA’s applicability to
the Internet generally. However, the Target case also illustrates the
problem with the ambiguity in current law regarding ADA coverage of
those public accommodations that conduct business exclusively online. It
is therefore highly unlikely that most courts will enforce the ADA
against a public accommodation that operates exclusively online or that
makes some goods and services available only online and not at any
physical stores it may operate.
This is because the ADA, its implementing regulations, and much of the
relevant case law is heavily accented on the accessibility of facilities
and not nearly as much on the activities undertaken at those facilities.
With more and more goods and services being made available exclusively
online, the failure of DOJ’s proposed rules to even mention the Internet
at all, let alone address this ambiguity, is a profound missed
opportunity and does not reflect the real world experience of people
with or without disabilities.
Suggested Comments: Advocates should tell DOJ not to shy away from
acknowledging the existence of the Internet and its ubiquity in American
life. The DOJ should make reference to the Internet and the need for
greater accessibility throughout its regulations wherever possible. The
effective communication and equipment-related provisions of the
regulations could contain such references. The DOJ should clarify that
public accommodations cannot freely discriminate against people with
disabilities simply by moving their goods and services exclusively
online. Finally, just as the DOJ has already done in providing guidance
to state and local governments, the DOJ should issue guidance to public
accommodations in making their presence online more accessible.
Documentation Justifying Exam Accommodations
Issue: The ADA specifically requires entities that administer
examinations such as the orientation and mobility instructor
certification exams, the GMAT or the LSAT, to provide testing materials
in alternate formats and/or make other accommodations to enable
examinees with disabilities to sit for such exams. However, as DOJ is
recognizing in its proposed ADA Title III regulations,
“Through its enforcement efforts, the Department has discovered that the
requests made by testing entities for documentation regarding the
existence of an individual’s disability and her or his need for a
modification or an auxiliary aid or service are often inappropriate or
burdensome.”
To attempt to remedy this problem, DOJ is proposing slight modifications
to the existing rules. In particular, DOJ is saying that the revisions
to the existing rules it is now proposing provide
“that while it is appropriate for a testing entity to require that an
applicant document the existence of a disability in order to establish
that he or she is entitled to testing modifications or aids, the
request for documentation must be appropriate and reasonable. Requested
documentation should be narrowly tailored so that the testing entity can
ascertain the nature of the disability and the individual’s need for the
requested modification or auxiliary aid. Generally, a testing entity
should accept without further inquiry documentation provided by a
qualified professional who has made an individualized assessment of the
applicant. Appropriate documentation may include a letter from a
qualified professional or evidence of a prior diagnosis, accommodation,
or classification, such as eligibility for a special education program.
When an applicant’s documentation is recent and demonstrates a
consistent history of a diagnosis, there is no need for further inquiry
into the nature of the disability. A testing entity should consider an
applicant’s past use of a particular auxiliary aid or service. Finally,
a private entity should respond in a timely manner to requests and
should provide applicants with a reasonable opportunity to supplement
their requests with additional information, if necessary. Failure by
the testing entity to act in a timely manner and making requests of
unnecessary magnitude could result in the sort of delay that amounts to
a denial of equal opportunity or equal treatment.”
Unfortunately, the specific language DOJ intends to insert into the
existing regulations at section 36.309(b)(1)(iv) fails to restate with
legal precision much of this excellent language. Rather, the proposed
revision merely says that demands for documentation need to be
reasonable and limited to documentation justifying need for the
accommodations or aids requested.
Suggested Comments: Advocates are urged to direct DOJ to further
elucidate its proposed regulations at section 36.309(b) to make it clear
that documentation demands are strictly limited in scope and met per se
when documentation of previously provided accommodations or aids is
provided. Additionally, establishment of an applicant’s disability
should be deemed to be satisfied when a short and simple statement of
diagnosis or other verification of disability is provided by a qualified
professional. All demands for documentation must be requested by the
testing entity in a timely fashion so as to allow the examinee to sit
for the scheduled examination which the applicant intends to take. If
documentation demands are not made in such a timely fashion, a request
for accommodations or aids should be deemed to have met the
documentation requirements of the testing entity.
Availability of Video Description in Movie Theaters
Issue: The existing ADA regulations do not explicitly require movie
theaters to provide video description. However, DOJ is communicating its
willingness to consider promulgating such requirements for, as DOJ puts
it, “narrative description.” Specifically, DOJ is asking whether the
Department should
“require that, one year after the effective date of this revised
regulation, a public accommodation will exhibit all new movies with
narrative description? Would it be more appropriate to require narrative
description less frequently? Should the requirement for narrative
description of movies be tied to the use of a digital format? If so,
why? Please include specifics regarding how frequently narrative
description should be provided.”
In asking these questions of commenters, DOJ acknowledges that it
“understands that the cost of narrative description equipment is less
than that for closed captioning. Generally, movie studios contract with
entities to provide the narrative description, and it can be done at the
same time captioning is created. The Department understands that when
theaters move to digital technology, both the caption data and the
narrative descriptions can be embedded into the digital signal that is
projected.”
Suggested Comments: While individuals or groups with expertise on the
delivery of video description may wish to comment on its technical
feasibility, all individuals with an interest in the availability of
video description in movie theaters are strongly encouraged to make
their interest in a clear regulation in this area known to DOJ. Tell DOJ
how important video description of movies in theaters is to you
personally. Describe your experience in trying to find theaters near you
that offer description. Comment on your sense of the need for
regulations to ensure that video description is much more widely
available.
Definition of Service Animals
Issue: The DOJ proposes to define the concept of service animals as
follows–
“Service animal means any dog or other common domestic animal
individually trained to do work or perform tasks for the benefit of an
individual with a disability, including, but not limited to, guiding
individuals who are blind or have low vision, alerting individuals who
are deaf or hard of hearing to the presence of people or sounds,
providing minimal protection or rescue work, pulling a wheelchair,
fetching items, assisting an individual during a seizure, retrieving
medicine or the telephone, providing physical support and assistance
with balance and stability to individuals with mobility disabilities,
and assisting individuals, including those with cognitive disabilities,
with navigation. The term service animal includes individually trained
animals that do work or perform tasks for the benefit of individuals
with disabilities, including psychiatric, cognitive, and mental
disabilities. The term service animal does not include wild animals
(including nonhuman primates born in captivity), reptiles, rabbits, farm
animals (including any breed of horse, miniature horse, pony, pig, or
goat), ferrets, amphibians, and rodents. Animals whose sole function is
to provide emotional support, comfort, therapy, companionship,
therapeutic benefits, or to promote emotional well-being are not service
animals.”
Suggested Comments: Advocates who agree that the proposed refinement of
the concept of service animals is appropriate will want to clearly
communicate that approval to DOJ. The proposed definition would
explicitly exclude horses - advocates with an interest in coverage of
horses will want to specifically address their coverage. Finally, the
proposed definition excludes animals that are solely for comfort and
emotional well-being. Advocates may wish to weigh in on this proposed
exclusion as well, either with concurrence or critique.
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Barbara Jackson LeMoine
Policy Analyst
American Foundation for the Blind
Public Policy Center
1660 L Street, N.W., Suite 513
Washington, DC 20036
202-822-0831
E-mail: blemoine@afb.net
Web: http://www.afb.org/gov.asp
Expanding possibilities for people with vision lossTM
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