[announce] ACB's Comments on Equipment ANPRM from DOJ

[Eric Bridges]

Over the last few months a working group of ACB members have come together
to produce comments in response to the Department of Justice's Advanced
Notices of Proposed Rule Making (ANPRM) in the areas of audio description,
equipment, and web accessibility. Below are our comments in response to the
equipment ANPRM. 

A great many thanks go to Kim Charlson, Paul Edwards, Pratik Patel, and Mark
Richert for their dedication and very  thoughtful construction of these
three separate responses. Thank you to Paul Edwards for his leadership
specifically in serving as chief author  of the below comments.

 

 

Eric 

 

 

   

Comments of the American Council of the Blind regarding the Advance Notice
of Proposed Rulemaking on 28 CFR Parts 35 and 36; CRT Docket No. 113; RIN
1190-AA64 Nondiscrimination on the Basis of Disability by State and Local
Governments and Places of Public Accommodation; Equipment and Furniture
published in the Federal Register, July 26, 2010, 75 FR 43452

 

January 21, 2011

 

For further information, contact

Eric Bridges

Director of Advocacy and Governmental Affairs

American Council of the Blind

2200 Wilson Boulevard, Suite 650

Arlington, VA 22201

202-467-5081

ebridges at acb.org

 

The American Council of the Blind (ACB) is a national membership
organization. Its members are blind, visually impaired, and fully sighted
individuals who are concerned about the dignity and well-being of blind
people throughout the nation.

 

Established in 1961, ACB is one of the largest organizations of people who
are blind in the world, with more than 70 state and special interest
affiliates and a nationwide network of chapters and members spanning the
globe.

 

In framing our comments on equipment, the American Council of the Blind
wants to begin by exploring some general principles that we believe are at
the heart of where regulations must go in the future. To do this, it is
necessary to take the same approach as the Department of Justice did in
reviewing the history of equipment regulation as it applies to the Americans
with Disabilities Act.

 

As the DOJ rightly asserts, there was an early commitment to making
equipment accessibility a general principle of the ADA from the start which
was abandoned fairly quickly. Instead of asserting that there was an
ongoing, affirmative requirement that equipment be accessible, the
Department chose to pick out specific pieces of equipment such as ATM
machines for which specific standards were developed. This approach did a
disservice to people who were blind or have low vision in that it created an
assumption that the best and only way that standards could be developed for
this group was through painstaking standard development over years. The
history of ATM regulation is a case in point. It took several years for
specific standards to be developed and, absent a general principle of
mandatory equipment accessibility, banks were dragged kicking and screaming
to ATM accessibility through law suits and structured negotiations. At the
heart of this ANPRM is the same approach. Specific questions target specific
pieces of equipment.

 

The American Council of the Blind urges the department to go beyond this
approach to the place the Department knew it should have been in 1991. It is
now time for the Department to clearly and unequivocally proclaim that
accessibility of equipment is an inherent component for making programs and
activities and places of public accommodation accessible. We recognize that
it will still be necessary to determine what accessibility means for
specific kinds of equipment. We are aware that this will mean working to
develop and implement standards that will apply to specific pieces of
equipment. However, we are convinced that people with disabilities have
waited long enough for a clear and general assertion by the Department that
there is an affirmative obligation to assure that equipment that is being
used to make programs and activities accessible under Title II and equipment
being deployed in places of public accommodation under Title III must,
within the constraints inherent in both titles, be accessible.

 

There is another principle that we believe must be clearly articulated as we
begin the second decade of the 21st century. Perhaps the best way to
describe this notion is to again look at where we were in 1991 and where we
are today. In 1991 many pieces of equipment were mechanical rather than
computerized. Thus, exercise equipment, stoves, washing machines and cash
registers were operated with controls where location, marking, and tactile
differentiation could, in general, make these devices accessible to and
usable by people with disabilities. In 2011, virtually every piece of
equipment being deployed makes use of computers. Many pieces of equipment
are also directly connectable to the Internet or can be accessed wirelessly
by utilizing a remote control. Essentially, this means that we must go
beyond looking at equipment, by itself. The accessibility of computers,
whether tiny ones in washing machines or larger ones in kiosks, must be an
inherent consideration in any regulations developed for equipment
accessibility. More to the point, it is no longer possible or credible to
see the regulation of equipment, the web and audio description as separate
endeavors. All three of the ANPRM areas overlap. It is time that the
Department consider the adoption of general principles that clearly
articulate the convergence that the computer chip has created. The simple
truth is that, with the advent of inexpensive computer chips, accessibility
of equipment is potentially readily achievable and can be accomplished
without much difficulty or expense. However, if the Department continues to
take the approach that it has in the past, there will be no clear mandate
that manufacturers must accept to work to develop and implement standards
that must apply to all equipment. 

 

Clearly Title II entities are required to make their programs and activities
accessible to people with disabilities. Where equipment is concerned, they
have been able to avoid compliance by claiming that there are no accessible
options available. The net result has been the deployment of equipment which
is less accessible to people who are blind or have low vision than the
equipment was at the time of the implementation of the ADA. The Department
has been complicit in creating decreased accessibility because it has
consistently failed to clearly adopt and enforce equipment accessibility as
a general principle that underpins the Americans with Disabilities Act.

 

Finally, we would argue that it is time that the Americans with Disabilities
Act acknowledges other Federal laws that have begun to create standards and
principles of accessibility. We believe that the standards that are
currently available that apply to equipment accessibility under Section 508
need to be consciously incorporated as minimum requirements for state and
local governments. Many states have already chosen to adopt these standards.
However, we believe that the Department has an affirmative responsibility to
make 508 compliance an inherent component of Title II of the ADA. We also
believe that creating general principles of equipment accessibility which
shall apply to both Titles II and III of the ADA will have the effect of
advancing the objectives that are at the heart of Section 255.

 

To summarize then, we assert that the failure to require equipment access as
a general principle in 1991 has done an immense disservice to people with
disabilities and more specifically we aver that people who are blind or have
low vision have been most severely impacted by this failure. The Department
must take this opportunity to clearly articulate that there is a categorical
and ineluctable affirmative requirement for equipment accessibility that
applies equally to state and local governments and places of public
accommodation. The Department must espouse principles of universal design
that will, within a reasonable time frame, require state and local
governments to only acquire equipment that is accessible. We believe that,
if the Department clearly adopts an unequivocal general principle, we will
gradually get to a place where equipment accessibility will assume the place
it should as a civil right for people with disabilities.

 

Medical Equipment and Furniture

 

Question 1. The Department is considering adopting the Access Board's
standards for medical diagnostic equipment. What other types of medical
equipment and furniture should the Department include in its proposed
regulation? What modifications to other types of medical equipment and
furniture, including equipment and furniture used for treatment or other
non-diagnostic purposes, such as hospital beds, should be included in the
Department's proposed regulations?

 

Comments for Question 1. We certainly endorse the adoption of the Board's
standards. We are concerned that those standards do not sufficiently address
the needs of people who are blind or have low vision. The focus seems to be
on meeting the specific needs of people with mobility impairments. A good
example of this absence of focus relates to hospital beds. While some
equipment manufacturers have made some effort to create controls which can
be used by people who are blind or have low vision, there is no agreed upon
standard. This is also true with devices used to call nurses. Again, some of
these devices provide minimal access such as a single braille letter
indicating which button is used to call the nurse, there are no standards.

 

Question 6. What technologies are currently available to increase the
accessibility of infusion pumps? What types of infusion pumps are partially
or fully operated by patients in the normal course of treatment?

 

Comments for Question 6. One of the issues that concerns us is the failure
of the Department to adopt standards for equipment in general. We make these
points in our introduction to this section. However, in the area of infusion
pumps, we believe that the failure to develop and implement clear standards
early and the failure to recognize the specific need of people who are blind
or have low vision in regulations, has seriously impacted this area.
Infusion pumps that are used for insulin with diabetics currently are not
accessible. This means that many people who are blind or have low vision
cannot avail themselves of a technology that might significantly improve
their diabetic stability and control. Of course, someone else can operate
the pump but this does not afford patients who are blind or have low vision
the opportunity to independently and privately operate such equipment. In
any NPRM, we believe that the Department should address the accessibility of
insulin pumps for people who are blind or have low vision.

 

Question 7. What are the greatest difficulties facing individuals with
disabilities in accessing rehabilitative and exercise equipment and
furniture in a therapeutic setting? What equipment and furniture most
effectively permits accessibility for different types of rehabilitative
needs? Can different types of equipment meet different access needs of, for
example, people with low-vision who need access to visual displays on
equipment? Are there differences between exercise equipment in therapeutic
settings and exercise equipment in non- therapeutic settings (e.g., gym or
fitness center)? What exercise equipment or machines are available to meet
the needs of individuals with mobility impairments?

 

Comments on Question 7. This is one of those areas where access for people
who are blind or have low vision is more difficult now than it was in 1991.
Computers now provide many kinds of information. We believe that it is
crucial that the Department include a need for the development of
accessibility for this equipment for people who are blind or have low
vision. After considerable discussion, we believe that the interface for
such devices should be similar to those available for accessing ATM
machines. We strongly object to any attempt to quantify the number of
machines for exercise that should be made accessible for people who are
blind or have low vision. While we understand that it may be necessary to
provide specialized equipment for individuals with mobility impairments, we
believe that the provision of an interface should make virtually all
machines in a facility accessible to and usable by people who are blind or
have low vision. Again, we point out that equipment was contemplated in 1991
as deserving accessibility. This means that the Department has an obligation
to be forceful and assertive in designing regulations that are unequivocal
in their expectations both of places of public accommodation and of programs
and activities under Title II. Community centers, schools, colleges and
state and local government facilities which provide fitness centers for
their employees must be considered. Under Title III fitness centers in
hotels and employee fitness centers in private facilities should be
included.

 

In terms of the needs, we do not perceive any fundamental difference between
the issues that operate for therapeutic exercise equipment and those that
pertain to non-therapeutic venues. However, we feel that it is important to
make one additional point. The approach that has been taken to the
accessibility of equipment in the past and in particular to exercise
equipment is flawed. It has the philosophy that it is sufficient to do
enough so that a person who is blind or has low vision can perform some of
the basic functions the exercise machine is designed to do. With the
widespread use of computers, such an approach is untenable. This is true
because machines are designed to provide both the capacity to input
instructions and to output information. Distance traveled, heart and pulse
rate and other vital information are now routinely a part of exercise
equipment. This is why it is so crucial to develop an interface that makes
both the input and output accessible.

 

Exercise Equipment and Furniture

 

Scoping and Triggering Events for Medical Equipment and Furniture

 

Comments on Scoping. We do not support scoping in terms of the quantity of
equipment. We are convinced that there is sufficient provision included in
the law to allow for exclusions based on undue burden. We also believe that,
while some time will be needed to publicize the regulations and to allow for
the market to develop accessible equipment, the Department has an obligation
to make it clear that accessibility is a requirement, not something to be
considered as budgets are increased. We are concerned that both Title II and
Title III entities will indicate that they cannot comply because there is no
equipment available. Some of the procurement components of Section 508 would
make the affirmative obligation of entities clearer. Thus, we continue to
believe that, at the least, the Department should consider citing Section
508 standards as potentially helpful. The Department must make it clear that
it will not be acceptable for entities to acquire equipment that is
inaccessible after a given date. Unless equipment manufacturers perceive
that there is a market for accessible equipment, they will not develop it.
Unless entities are precluded from acquiring inaccessible equipment, there
will likely not be the needed incentive to produce accessibility as a core
component of equipment being produced.

 

Question 12. What types of accessible exercise equipment and furniture are
available on the commercial market? What types of equipment and furniture
are already accessible to individuals with disabilities? Is independently
operable equipment and furniture available for individuals who are blind or
who have low vision, or who have manual dexterity issues.

 

Comments on Question 12. The American Council of the Blind takes exception
to this question for a number of reasons. First, equipment that is available
and that may be accessible to and usable by individuals who are blind or
have low vision now is at the low end in terms of functionality. Indeed, as
the years pass, less and less exercise equipment is accessible. It is not
likely that entities purchasing equipment will want to purchase equipment
that is accessible or usable because it is so much less attractive to other
users of equipment. Essentially, this is why we urge the department not to
treat accessibility for people who are blind in the same way that they treat
accessibility for those with mobility impairments. Instead, the Department
must make it mandatory for entities to make available equipment which has an
interface that allows an individual who is blind or has low vision to access
exercise equipment and all its features privately and independently. We also
object to the potential assumption that the needs of people with visual
impairments should be viewed in the same way as are the needs of individuals
with manual dexterity issues. Our third and final objection to this question
concerns our belief it is not appropriate to list specific devices which
have some accessibility. Instead we believe that a standard must be set that
requires entities to purchase equipment with an interface that makes it
accessible to and usable by people who are blind or have low vision.
Essentially, entities should be precluded from purchasing equipment that
does not meet this standard.

 

Question 13. Should the Department require covered entities to provide
accessible exercise equipment and furniture ? How much of each type of
equipment and furniture should be provided? Should the requirements for
accessible equipment and furniture be the same for small and large exercise
facilities, and if not, how should they differ?

 

Comments for Question 13. It should be clear from our foregoing comments
that we believe that accessibility for people who are blind or have low
vision must be an inherent part of each piece of exercise equipment deployed
at entities under Titles II and III. Thus, we believe that there should be
no difference in the requirements for large or small entities. Indeed, small
entities are more likely, if quantitative scoping is allowed, to be full and
thus have no equipment available for the use of individuals who are blind or
have low vision. This will result in long wait times which will amount to
discrimination if there is only one machine and it is in use. Entities can
avail themselves of the undue burden defense if they truly cannot meet
accessibility requirements.

 

Beds in Nursing Homes and Other Care Facilities

 

Question 17. Should the standards be different for adjustable beds, such as
hospital beds, and for fixed height beds? Should the Department treat beds
in nursing homes in the same manner as beds in hospitals? Should the
Department treat beds in nursing homes or hospitals in the same manner as it
treats beds in places of lodging? Should all accessible rooms have
adjustable beds?

 

Comments on Question 17. In earlier comments, we made it clear that we
believe that controls for adjustable beds need to be accessible to and
usable by persons who are blind or have low vision. We believe that these
obligations should apply wherever such beds are deployed.

 

Electronic and Information Technology

 

The American Council of the Blind wishes to return to some of the points
made in the introduction of this section before providing specific answers
to the questions that follow. We believe that it is simply not appropriate
to consider individual pieces of equipment. Indeed, we believe that, over
the next several years, with the emergence of the "Cloud" and the increasing
use of applications on cell phones, it will become less and less easy or
appropriate to differentiate between information and how it is provided.
There is, in other words, increasing convergence between information that is
available on line and information that is made available through equipment.
Many of the devices cited by the Department are connected to the Internet.
On the other hand, many of the functions that such machines perform can be
accomplished using a computer, a note taker, a PDA, or a cellular telephone.
At the heart of recent revisions to Title II is the notion of preference as
applied to effective communications and auxiliary aids and services. This
means that any entity providing information or allowing for information to
be provided has an obligation to make all approaches to the interchange of
information accessible. It is, therefore, not appropriate just to look at
equipment interfaces. We must instead look at information convergence, the
point at which information and the person with a disability come together.
It is the transaction that is crucial. It is important that the Department
not get so engrossed with equipment interfaces that it loses sight of the
central objective. This is also why it is so crucial that the Department
explicitly identify standards and approaches espoused by other laws such as
Section 508 of the Rehabilitation Act, accessibility guidelines for the Web,
and any regulations that emerge from the Twenty-First Century Communications
and Video Accessibility Act.

 

Question 18. What are the challenges posed by the inaccessibility of EIT,
including EIT kiosks, POS devices, and ITMs? Are there issues regarding
other uses of EIT that the Department should consider adopting to ensure
that EIT equipment is accessible?

 

Comments on Question 18. Most of the comments that apply to this question
have already been made elsewhere. It is no longer appropriate to consider
equipment in isolation and information, rather than how it is acquired, must
be at the center of anything the Department does. As devices proliferate
which allow for the performance of increasingly complex information
exchanges, the Department must recognize its obligation to consider the new
reality holistically. This is particularly true because users of places of
public accommodation or programs and services are increasingly being forced
to utilize technology. People are being replaced by systems. People with
disabilities are forced to pay extra if they wish to make reservations for
air line tickets by telephone rather than using web sites which are, in some
cases, simply not accessible. While this example does not fall under
equipment, we are seeing the same kind of a problem in airports where people
with disabilities have missed flights because there were fewer ticketing
agents on duty given the fact that people are expected to use machines to
confirm their reservations, buy tickets or acquire boarding passes.

 

The trend at airports is only one instance. Transit systems, government
buildings, fast food restaurants and gas stations are all deploying
equipment that is inaccessible to people who are blind or have low vision.
They have only been allowed to do so because the Department chose not to
make equipment accessibility a priority in 1991 and has taken a piecemeal
approach to equipment access since. This approach must change!

 

Since the Department invites consideration of equipment issues in this area
that have not specifically been referenced, the American Council of the
Blind wishes to ask the Department to include EIT devices built into vending
machines, ranges, ovens, washing machines, dryers, thermostats, and other
appliances now being deployed in Title II entities such as schools,
post-secondary dormitories, housing owned and operated by state and local
governments and elsewhere. Given the ubiquitous nature of computer chips,
these devices need to be considered as EIT devices and should be covered
under these regulations. Where places of public accommodation deploy such
appliances, they should be required to assure their accessibility as well.
As we have said repeatedly, there are defenses if the burden of compliance
with the law is too onerous. Many places of public accommodation are parts
of chains which, viewed as a whole, ought to be complying with accessibility
guidelines where equipment is concerned.

 

One of our members provided an example which makes clear just how
problematic equipment access under Title II currently is. Three years ago, a
student at a public college complained that the company operated machines
that dispensed cold sodas began to move drinks around in the machine to the
point that he could no longer reliably be sure he was buying a diet soda.
Since he is a person who has diabetes, drinking regular soda could prove
dangerous to his health. The college began negotiations with the vending
machine distributor who agreed to designate certain locations within the
machine as fixed locations for regular and diet soda. They also agreed to
allow braille labels to be affixed to all of the machine's buttons. This was
not an ideal solution but constituted a step in the right direction. Three
days later, all the braille labels had been removed and, when contacted, the
vending distribution company indicated that they felt that their liability
would be lessened if there were no labels on machines that would suggest
that they had any responsibility for impacting accessibility.

 

Question 19. What types of EIT would permit individuals with communication
disabilities to most effectively communicate from an accessible hospital
room, nursing home facility, guest or sleeping room? Should the Department
regulate effective communication from such facilities? What are the costs
associated with various types of EIT in such settings?

 

Comments on Question 19. The American Council of the Blind is concerned that
the Department is once more considering a specific problem and disability
rather than recognizing that the problem is more general and needs to be
considered more broadly. Effective communication does not simply involve
people who are deaf. It also applies to people who are blind or have low
vision. People with visual impairments are finding themselves increasingly
unable to access message indicators on telephone, complex telephones which
are now routinely deployed, remote controls provided for television viewing,
thermostats for adjusting the temperature of rooms and, even, locks which
use lights as the only indicator of a change. Places of public accommodation
such as hospitals, nursing homes and places of lodging have an affirmative
obligation to make their facilities accessible to all people with
disabilities. This is another place where all three of the sections of the
ANPRM converge. Surely, there should be an obligation to assure that, where
available, there is an affirmative obligation to assure that the television
sets that are made available can access audio description. If the issue is
whether captioning can be turned on or off, surely there is an equally
compelling argument for audio description access. In many of these rooms,
there is provision for accessing the Internet. Even though it is up to the
individual, in most cases, to provide the equipment that will be used to
access the Internet, there ought to be an affirmative obligation on the
entity to assure that the interface that allows the individual to enable
Internet access is accessible. To single out a specific disability or limit
consideration to one particular issue is to trivialize the problem and
ignore the need for solutions that apply to other groups. There are clearly
Title II entities for whom accessibility of sleeping rooms applies and they
should be equally liable to provide effective communications for all persons
with disabilities.

 

Scoping and Triggering Events for EIT Equipment

 

Question 20. What are appropriate scoping criteria for the availability of
accessible EIT and triggering events for the replacement or refurbishing of
EIT devices, including kiosks, ITMs and ATMs, to ensure accessibility?

 

Comments on Question 20. Our comments make it clear that we believe
information access is a pervasive accessibility issue and that the
Department is complicit in allowing equipment regulation to lag behind other
concerns. We believe that, if there had been an infrastructure of
regulations concerning equipment access, entities under Titles II and III
would have already created the requisite accessibility interfaces. We
therefore believe that the Department needs to create regulations that
clearly mandate the accessibility of equipment and categorically insist on a
transition to compliance that is minimal and inclusive.

 

Other Types of Equipment and Furniture

 

Question 21. Are there other types of equipment or furniture that impede
accessibility that should be specifically addressed in the Department's
regulation? What types of accessible equipment or furniture would
effectively address any such concerns? What scoping would adequately address
the impediments to accessibility and what triggering event would be
appropriate for each type of other equipment or furniture? Are there
particularly helpful types of equipment or furniture that are not generally
available to the public that may assist individuals with disabilities, such
as pool or shower chairs?

 

Comments on Question 21. We have already referenced other equipment in
previous responses to earlier questions. Again, the department is taking the
approach of highlighting specific issues rather than dealing with a larger
problem. Public libraries certainly need to do more to assure that devices
which offer patrons access to the Internet are accessible to and usable by
people who are blind or have low vision. They also need to assure that such
equipment is installed in accessible locations which, in the case of people
who are blind or have low vision, may involve choosing libraries that are on
transit routes. If libraries choose to claim that full accessibility imposes
an undue burden, they will have an opportunity to demonstrate this through
the courts. There is no difference between the provision of access in
libraries and access to the Internet provided through a computer courtyard
in a school or college. Nor is this different from making sure that places
of public accommodation who offer Internet access through computers located
in specific areas assure accessibility as well. 

 

Our answer to this question is no different than our answer to other
questions in this section. The Department must generalize its approach and
recognize that focusing on specific pieces of equipment is no longer
appropriate. The issue is effective communication and the provision of
appropriate auxiliary aids and services. The Department must take the lead
in creating an environment where it is recognized that people with
disabilities have the right to expect to be included in a world where
computers are becoming increasingly indispensable for accessing a huge range
of transactions, places of public accommodations, and programs and
activities. People who are blind or have low vision are actually losing
ground in terms of accessibility. It is up to the Department to assure that
this slide toward exclusion is halted and reversed.

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