American Council of the Blind
____________________________________________________
Attorney General Michael Mukasey
RE: 28 CFR Parts 35 and 36 -
Nondiscrimination on the Basis of Disability in State and Local Government
Services and Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities
Dear Attorney General Mukasey:
The American Council of the Blind (ACB) would like to thank you for the
opportunity to comment on the June 17 Proposed Rule regarding the Department’s
intention to adopt standards consistent with Parts II and III of the 2004
Americans with Disabilities Act Accessibility Guidelines (ADAAG) as the ADA
Standards for Accessible Design.
ACB is the largest consumer-based organization of blind and visually
impaired Americans advocating for the rights of blind Americans. Comprised of
more than 70 affiliates across the entire
We appreciate the time and effort that the Department has dedicated
toward drafting these proposed regulations to provide much-needed clarity in
the adoption of design standards that are consistent with the revised ADA Accessibility
Guidelines published by the Architectural and Transportation Barriers
Compliance Board (Access Board) on
Prior to outlining our section-by-section comments, ACB would like to
express its support for an extension of the comment period due to the
complexity and broad range of issues addressed in this proposal. We hope that you will consider these comments
as you work to develop the final regulations.
SECTION-BY-SECTION COMMENTS
DETECTABLE WARNINGS
The proposed revisions at sections 218.2; 218.3; 810.5;
810.5.2; 705.1; 705.1.1; 705.1.2; 705.1.3; and 705.2 regarding detectable
warnings are unacceptable. We are
profoundly disappointed by the proposal to limit the requirement of detectable
warnings to transit platform edges. It has been the experience of the members
of the American Council of the Blind that detectable warnings
benefit us by alerting individuals to dangerous situations and preventing
serious injury, especially on vehicular ways. We are especially concerned about
older blind and visually impaired persons who may not receive orientation and
mobility training and therefore are particularly vulnerable in such situations.
Furthermore, the requirement for detectable warnings within
transit systems should apply to all stations within the system, not just key
stations. Current technical specifications for the diameter and spacing of
truncated domes as well as contrast in color, sound on
cane contact, and underfoot detectability should be
retained. These standards are essential to the effective use of detectable
warnings.
SERVICE ANIMALS
The American Council of the Blind concurs with the
following comments submitted by Guide Dog Users, Inc. (GDUI). We remain deeply concerned about the abuses
of the
QUESTION NINE:
Should the Department clarify the phrase "providing minimal
protection" in the definition or remove it?
GDUI is strongly opposed to the retention of the words
"minimal protection" or any mention of "protection."
Protection language is often incorrectly interpreted by individuals and
training programs alike as a license to train aggression-related protection
behaviors. In a 2003 GDUI survey, 89% of guide dog handlers reported incidents
of interference from uncontrolled dogs, and some of these attacks were
perpetrated by other assistance dogs. In the NPRM the DOJ itself makes the
point that despite its best efforts, the phrase continues to be
misinterpreted. While the Department may
not condone attack or aggression training, incidences of intentional and
unintentional abuse and attack will certainly continue until the word
"protection" is removed from the definition. This word has very specific meaning within
the dog training industry, where it means only one thing, aggression training.
In the NPRM, the Department said it tried to clarify "minimal
protection" in 2002 with the example "alerting and protecting a
person having a seizure," in its interpretative guidance document,
"Business Brief; Service Animals."
Unfortunately this clarification has also been
misinterpreted as sanctioning protection training. There is far too much
confusion for businesses attempting to figure out how much vocalizing or
aggressive behavior is too much and represents grounds for asking an offending
team to leave the premises. Therefore, any use whatsoever of the term
"protection" which will further exacerbate these confusing and
difficult situations is unproductive and notably unacceptable to GDUI members.
Standing with CADO, GDUI believes the new task example
cited in the proposed definition, "assistance during a seizure" is a
much more accurate description of tasks required to accomplish the goal of
ensuring the inclusion of people who have a disabling seizure disorder. In conclusion, GDUI respectfully requests
that the Department give further consideration to eliminating this misleading
language in the service animal definition.
QUESTION TEN: Should
the Department eliminate certain species from the definition of "service
animal"? If so, please provide comment on the Department's use of the
phrase "common domestic animal" and on its choice of which types of
animals to exclude.
GDUI sincerely thanks the DOJ for responding to the many
issues raised concerning the use of species which may pose a threat to public
safety or which can't be housebroken or task-trained. As a founding member of
CADO, we believe the continuing use of such species will have a seriously
eroding impact on societal tolerance for service animal teams in public places. ACB does not oppose the use of a miniature
horse for guide work if, and only if, the animal can meet the same or
equivalent standards for behavior and training that assistance dogs must meet
to qualify for public access with handlers who are disabled. This approach is
intended to place the emphasis for teams to qualify, more specifically on
higher standards of public behavior and appropriate task training and would
represent a far less arbitrary and discriminatory approach to this serious
dilemma.
QUESTION ELEVEN: Should the Department impose a size or
weight limitation for common domestic animals, even if the animal satisfies the
"common domestic animal" prong of the proposed definition?
GDUI supports the Department's current policy of not
imposing a weight or size limit on service animals. With the caveat and
understanding that unless an oversized animal causes a fundamental alteration,
we believe a size or weight limit on common domestic animals such as assistance
dogs would unfairly discriminate against individuals whose height, weight
and/or the severity of their mobility impairment necessitates a match with an
assistance dog of sufficient size and strength to prevent falls and perform
other useful tasks without injury to the dog.
ADDITIONAL ISSUE: Retention of "Do Work" in the
New Definition
GDUI is pleased that the Department was receptive to CADO's educational efforts concerning individuals with
psychiatric disabilities, autism and other mental impairments. On behalf of the
entire assistance dog movement, CADO has been working to create a better
definition of service animals, one that would maintain a clear distinction
between those animals which are individually trained to perform tasks to
mitigate the effects of a disabling mental or physical condition and any animal
whose mere presence or companionship provides emotional support or some other
therapeutic physical health or mental health benefit. We've all been hoping for
a new definition that would end the confusion in the media, disabled community
and the public and private sectors as to what qualifies an individual with a
disability to legal public access with a well trained, public appropriate
animal. While there is much improvement
in the proposed definition in the NPRM, a serious flaw has come to our
attention. It concerns the Department's explanation titled "Task
Emphasis" in the NPRM. The content is so contradictory to the Department's
own interpretative guidance document, "Business Brief: Service
Animals" from 2002 and to the intent of the proposed definition, which is
to eliminate misunderstandings on what qualifies an animal to be a service
animal, GDUI joins all the other organizations CADO represents in vehemently
opposing the retention of the phrase "do work," particularly if this
phrase is defined by the use of the term "grounding." We refer to the
DOJ's statements: "Tasks are by
their nature physical, so the Department does not believe that such a change
[to physical tasks in the definition] is warranted. In contrast, the phrase ‘do
work’ is slightly broader than ‘perform tasks’ and adds meaning to the
definition. For example, a psychiatric service dog can help some individuals
with dissociative identity disorder to remain
grounded in time or place." This discussion, giving grounding as the
example of "do work" followed by the assertion that "in some
cases, critical forms of assistance can't be construed as physical tasks,"
leads the reader to conclude that work is a form of assistance that is NOT a
physical task. It suggests an animal will qualify as a service animal if a
mentally disabled owner says the dog's presence or companionship helps to keep
him or her grounded in time or place. GDUI has been acutely aware that for
years, pet owners with psychiatric impairments have used the "my pet keeps
me grounded" rationale for bringing their non-task-trained animal into
places of public accommodation, which actions currently represent acts of
blatant service animal fraud. We are all deeply concerned that this "do
work" example will be cited in the future as proof that task training is
unnecessary for animals belonging to people with a psychiatric, cognitive or
mental disability. Certainly the idea that work can be a non-physical form of
assistance and not a task will further confuse the distinction between service
animals and pets. Therefore, in the interest of eliminating further confusion
and abuse, GDUI urges the Department to reconsider this "do work"
issue. We respectfully point out the fact that the Department's own
interpretative guidance in 2002 excluded the phrase "do work" from
the way it defined a service animal.
The updated guidance document reads:
Service animals are animals that are individually trained
to perform tasks for people with disabilities, such as guiding people who are
blind, alerting people who are deaf, pulling wheelchairs, alerting and
protecting a person who is having a seizure or performing other special
tasks. Service animals are working
animals, not pets.
The 2002 interpretative guidance on the
Since 2002, the Department's own emphasis on the fact that
task training is fundamental to the definition of a service animal in the
business brief has been relied on by the disabled community, businesses,
colleges and other interested parties. The DOJ has educated the public and
businesses that the performance of tasks is the crucial distinction between
specially trained service animals and other animals, whatever their label.
It appears to GDUI that the "do work" phrase in
the original definition had nothing to do with a non-physical form of
assistance. Rather, it merely reflected the fact it was customary to discuss
the trained behaviors performed on command or cue by guide dogs as "guide
dog work." Guide dog work is a series of trained tasks performed as
needed, such as leading a blind person around obstacles, halting to indicate
changes in elevation like a curb, avoiding traffic in the team's path, finding
the location of a building's exit and finding an empty seat in a classroom or
on a bus. These are trained tasks and stand in sharp contrast to the DOJ's
example of the ambiguous concept of grounding.
Since 2002, the work performed by service animals has been
task-defined, arguably making the retention of "do work” and its given
example of grounding in the proposed new definition confusing and easily
misinterpreted. Unfortunately, due to
the impression the average person receives from the NPRM discussion cited
above, the phrase "do work" if defined by a term such as
"grounding" will seriously undermine the Department's profoundly
essential goal of distinguishing between service animals and pets whose
presence or companionship will provide emotional support, therapy, comfort, or
other therapeutic benefits. Based on these considerations, GDUI in solidarity
with all the other organizations which comprise CADO, strongly recommends the
elimination of "do work" in the final rule's definition. Failing
that, we request illustrating the phrase "do work" with appropriate
examples to eliminate the devastating consequences of using the ambiguous term
"grounding" as an example. If the DOJ persists in using grounding,
GDUI believes it will undoubtedly undo and reverse many of the positive effects
gained in educating the public, businesses and even the disabled community
following the issuance of the widely distributed 2002 interpretative guidance
document.
Guide Dog Users, Inc. thanks the DOJ for its efforts to
help clarify the issues which have created so much confusion and
misinterpretation of the original service animal definition and regulations.
GDUI members are proud of their long and successful history conquering public
access barriers in partnership with well-trained guide dogs. In closing, GDUI
respectfully asks that you seriously consider its jointly expressed concerns
regarding these issues, so very important to guide dog handlers.
NARRATIVE DESCRIPTION
In response to question 25, our first concern relates to
the use of the term “narrative description.” Since the inception of this
technology the term of art has been “video description.” The introduction of a
new term will only serve to create confusion.
Additionally, we believe strongly that video description should be fully
incorporated into all movies being produced in digital format and should be
provided at all theaters that use digital technology to display movies.
However, it is our firm conviction that theaters should not be permitted to
delay the deployment of video description until digital conversion occurs. In fact it is our position that video
description should be provided in any instance and at every venue where visual information
is an essential part of the information conveyed or the performance provided to
members of the public. The NPRM itself provides a good description of the role
that video description plays for people who are blind and visually
impaired. Without video description,
such individuals have only very limited access to the information provided to
the sighted public.
Beyond this, ACB believes strongly that, as more and more
movies are offered to the public over the Internet and on DVD’s, it is
essential that video description be incorporated into both of these formats.
Video description deserves the same recognition that is accorded to captioning
by the movie industry, the federal government and the general public.
WEB ACCESSIBILITY
The references to Section 508 in Titles II and III are both
too narrow and too focused. In our view,
both titles need to recognize and specifically include the citation of these
standards not only as they apply to equipment but also as they apply to the
provision of accessible information of all kinds that is placed on the World
Wide Web. The Department should also clearly state once and for all that all
web sites of covered entities of Titles II and III should be fully accessible
and should at least meet 508 standards of accessibility. We believe that “all
covered entities” includes public accommodations offering their goods and
services exclusively online. Essentially, we wish it to be understood that, at
its heart, access to the Internet is an inherent part of effective
communication for people who are blind or visually impaired and that we expect
the principles which govern effective communication to apply to web access.
HOUSING IN EDUCATIONAL FACILITIES
In general, we believe the Department should apply
transient facility standards to this area. However, we are concerned that, by
concentrating only on the physical characteristics of facilities, the
Department is ignoring a major and important concern.
Access to equipment such as kitchen appliances, washers and
dryers, vending machines and thermostats, to mention a few examples,
constitutes a major area that needs to be seriously considered. We believe that
the usability of equipment in such facilities is just as important as is the
organization and characteristics of the facility. We believe that, in general, wherever
equipment such as that used as examples here is found in facilities operated
under Title II, it should be accessible to and usable by people who are blind
or visually impaired. We recommend that the Dpartment
develop and implement regulations which provide specific approaches, scoping
and standards that will enable public entities to know how such equipment can
be made accessible and usable.
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 state and local
governments, as well as public accommodations.
In truth, the regulations implementing the
Whether one considers, as examples, the persistent refusal
of municipalities even after a timely request, to provide appropriate information,
such as meeting materials or utility bills, in alternate formats, or public
entities' persistent use of inaccessible web sites to disseminate information
vital to the public interest, or restaurants' failure to provide menus in alternate formats, or the reluctance
of many financial institutions and health care providers to offer accessible
statements or meaningful access to confidential records, or retailers' and
travel companies' 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 exhibits, or pharmacies' failure to provide access to patient-specific
drug labeling and other information on prescriptions they fill, people with
vision loss are being denied the ADA's promise of independence and equal
participation.
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.
State and local government entities and public
accommodations need to know in no uncertain terms what it means to offer
effective communication. When covered
entities 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 entity must nevertheless communicate with the individual in a
manner appropriate to the circumstances.
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.
The American Council of the Blind believes that, in the
interests of equal consideration, the Department is obliged to devote
substantial attention in its final rule to the effective communication needs of
people who are blind and visually impaired.
In its NPRM substantial space is devoted to the enumeration of specific
approaches that covered entities should take to assure that communication is
effective for people who are deaf or hard of hearing. We believe there is a need for the Department
to provide explicit guidance to such entities that should enable them to
thoroughly understand and apply principles of effective communication that will
be delineated by the Department. In particular, we believe that there is a need
for the Department to provide guidance concerning how best to communicate with
people experiencing both hearing and vision loss.
In addition, the regulations at 35.160 and 36.303(c) of the
current rules entitled "Auxiliary aids and services" should be
amended as follows —
Sec. 35.160 (b) A public entity shall furnish
appropriate auxiliary aids and services where necessary to afford individuals
with disabilities and their companions who are individuals with disabilities,
an equal opportunity to participate in, and enjoy the benefits of, a service,
program, or activity conducted by a public entity. 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 services, programs,
and activities offered by covered entities with the same timeliness of
delivery, accuracy and thoroughness of communication, and opportunity for
privacy and independence as is provided to others; (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.
The American Council of the Blind objects strenuously to
the proposed deletion of the language in 35.160 (b) (2) which makes the
preferences of the individual a matter of primary consideration
when determining what auxiliary aids and services are to be provided by a
covered entity under Title II. The removal of this language would have the
effect of limiting access which has already been in place for 16 years to which
people with disabilities have become accustomed. The Department provides no
rationale which justifies this serious curtailment of the rights of individuals
with disabilities. Absent any meaningful discussion which would justify this
abridgement of individual choice, the American Council of the Blind joins other
disability organizations in categorically opposing this unwarranted and
unjustified recommendation. Indeed, the American Council of the Blind is
seriously concerned that this item is not thoroughly explored in the
Department's comments on the NPRM.
QUALIFIED READER
The American Council of the Blind appreciates the
Department's efforts to more carefully define what is meant by a qualified
reader. Their proposed definition follows. "Qualified reader means a
person who is able to read effectively, accurately, and impartially using any
necessary vocabulary." While this definition goes some distance in the
right direction, we believe there are other components that need to be
considered. We receive many complaints from members about the accent of many
readers. The Department should consider prohibiting covered entities from using
readers whose accent or diction or pronunciation makes full comprehension of
material questionable. In addition, we believe that regulations need to spell
out in detail what is meant by the terms “effectively,” “accurately” and so on
so that covered entities clearly understand their obligations and so that
individuals who use readers will more clearly understand what they have a right
to expect.
ASSEMBLY AREAS
The American Council of the Blind believes that, in general
in the discussion of assembly areas and in particular in the discussion of stadia, the Department provides little or no guidance to
covered entities on how to meet the accessibility requirements of people who
are blind or visually impaired. The longstanding failure of either the
legislation or its accompanying regulations to provide such guidance has had
the effect of severely curtailing consideration of the needs of this class of
people with disabilities in these areas. We recommend that the Department and
the Access Board make it a matter of priority to devote considerable attention
in the immediate future to the specific accommodations that are required for
people who are blind or visually impaired. The seating needs of people who are
blind or visually impaired are diverse and will differ depending on the level
of vision individuals currently have. For some, clear sight lines to the event
will be crucial. For others, the provision of seating which allows easy routes
to concessions or restroom facilities will be of more importance. Because of
the complex nature of many of the facilities under discussion here, we believe
that covered entities should be required to make available a listing of all
concession and gift locations within a facility. We believe that tactile maps
should be considered and we suggest that effective communication provisions
should require all restaurants and concession stands to be certain that there
are ways that people who are blind and visually impaired can be aware of all
available goods and services. Given the noise level and the volume of sales, we
believe that reliance on personnel to provide such information is inappropriate
and believe that Braille and large-print menus, electronic talking menus, or
other options that do not involve personnel must be considered.
In particular, we make the following recommendations. We
recommend that assembly areas and stadia be required
to provide multi-channel assistive listening devices. This would allow one
channel to be used for the provision of information to people who are hearing
impaired and would allow another channel to be used to provide the equivalent
of video description. Such video description might take the form, where
appropriate, of feeding play-by-play commentary provided by radio stations and
may include additional information currently only displayed visually at
facilities. We are particularly concerned because many stadia
are being constructed to provide protection from the weather which has the effect
of making radio reception difficult or impossible in these facilities. We
believe that, if the Department is considering broadening the range of
information that will be made available to people who are deaf or hard of
hearing through visual displays, it must equally consider making information
only now available visually accessible to people who are blind or visually
impaired. In particular, we are concerned that any information related to
emergencies such as tornadoes be made available
aurally as well as visually. There have been instances where such information
has only been shown visually which has had the effect of endangering people who
are blind or visually impaired because they do not understand the nature of a
specific emergency.
The American Council of the Blind believes that setting the
threshold for coverage of stadia at 25,000 capacity is unacceptable. We believe this would have the
effect of excluding whole classes of professional sporting activities from
obligations which we believe they should meet. Professional basketball and
hockey are, for the most part, played in arenas which have a capacity that is
lower than the proposed threshold. We believe that many of the accommodations
required to meet the needs of people who are blind or visually impaired can be
met at relatively little cost. We also believe that the Department might
consider using a variable numbers threshold in conjunction with language that
would differentiate between amateur and professional sporting activities. We
also believe it is important to recognize that other events than sporting
contests take place in stadia and arenas. It is
crucial that the Department recognize that access to these other types of
events must be protected and covered so that the use of a standard that only
considers capacity may have the effect of allowing many smaller municipal
localities to ignore the needs of people with disabilities in the design,
construction and accessibility elements of local assembly areas.
The American Council of the Blind opposes efforts to
certify covered entities because, just as federal legislation and regulations
do not include specific scoping that speaks to the needs of people who are
blind or visually impaired, state and local codes are equally silent.
Certification might well have the effect of relieving covered entities from
obligations that we believe need to be spelled out specifically in federal
legislation and regulations that apply to people who are blind or visually
impaired.
We recommend that the Department make clear that ticket
preference does not just apply to wheelchair locations. Consideration in the
allocation of tickets for people with disabilities must also be given to the
needs of people who are blind or visually impaired. Since new scoping requirements
will cut by half the number of accessible seats that must be allocated, we
recommend that covered entities be encouraged to allocate some of the excess of
seats that these new standards will create to meet the needs of people who are
blind or visually impaired. It is not appropriate to ask individuals who are
blind or visually impaired to compete for seats with people who use wheelchairs
given the reduced number that will now be offered.
We believe that the decision to reduce the number of seats
was made without considering the needs of a broad range of people with
disabilities and that the Department should consider not reducing the number of
seats. Many covered entities are concerned that maintaining an inventory of
accessible seating limits their ability to sell tickets because not all
accessible seats for a given event may be sold. We believe that it is
appropriate for covered entities to be allowed to sell unused accessible seats.
However, we believe that at least a portion of available accessible seats
should be retained by the venue long enough to afford individuals with a
disability the opportunity to investigate with the venue what sort of available
seats can be had so that they can be certain that their accessibility needs can
be met appropriately. We believe that it is reasonable to expect venues to
retain the whole inventory for three business days after tickets go on sale. An
individual with a disability will have sufficient time during that period to
ascertain whether appropriate seats are available.
There may well be times when a person who is blind or
visually impaired may actually require locations that are now allocated to
users of wheelchairs. The Department must make clear that, if a person with a
disability has needs that are similar to those of users of wheelchairs, it is
appropriate to allocate such seats to people who do not use wheelchairs.
Table 221.2.1.1 in the proposed standards provides specific
numbers of wheelchair seats that must be provided. While there is currently no
guidance available to covered entities on how many seats should be made
available to people who are blind or visually impaired, we recommend that the
Department work in collaboration with the Access Board to arrive at such
numbers. These should then be included in places where wheelchair numbers
currently are to be found.
EQUIPMENT ACCESSIBILITY
The proposed regulations fail to address the need for
accessibility to equipment provided by public accommodations. Indeed, the
regulations implementing the
"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
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,
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."
We 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. We call on DOJ to add
specific examples of equipment that best illustrates 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, since the original
Finally, as part of its proposed regulations at section
36.303ggb), DOJ has in fact included electronic and information technology
(EandIT) 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
we urge DOJ to retain it and advocate for clearer and more detailed
requirements as described above.
The American Council of the Blind believes that the
regulations just cited from Title III of the
One government official has been advised by attorneys that
stipulating that an accommodation will be provided should not be done because
of the possibility of litigation if such accommodation is not provided. That
attorney further advised that it would be far better not to make any commitment
at all relative to the provision of a potentially litigable accommodation.
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.
MAINTENANCE OF ACCESSIBLE SIGNAGE
While the Department makes it clear that it is
inappropriate for accessible elements such as path of travel to be superseded
by either alterations or rearrangements that impede ongoing access, there
remains considerable need to see more work done identifying and codifying
approaches that go beyond the very limited detail currently available with
regard to accessible signage. Some Title III hotels have not only provided
Braille and raised large print signs to identify sleeping rooms but have also
provided signs that allow people who are blind or visually impaired to know
which rooms are in which direction. We recommend that the Department seek to
identify innovative and effective approaches which broaden access and see that
they are fully codified under appropriate regulations.
We also believe that the Department should not allow hotels
to make changes that have the effect of lessening accessibility for people who
are blind or visually impaired. An example of such a situation concerns signage
identifying public meeting rooms and spaces.
In the past, permanent Braille and raised large print signs identified
the room while an easel with a large sign specifically described the event
currently scheduled in the room. Many newer hotels are now using programmable,
electronic variable message signs which have replaced both previous approaches.
A person who is blind or visually impaired can no longer independently identify
a meeting room and must now rely on the help of others. The Department must
maintain the requirement that older accessible signage be retained until
appropriate accessibility is available on new technologically sophisticated
signage solutions. Currently, standards exist in the proposed 2004 ADA
Accessibility Guidelines and in the ANSI standards which define destination
elevators. However, those standards do not cover the current generation of
destination elevators which include a computer system which makes decisions
based on demand about which elevator in a bank will go to which floor or floors
based on requests that must be inputted by potential elevator users. We have
received numerous complaints from members in
STAIRS
The ADA Accessibility Guidelines governing stairs did not
provide sufficient protection for blind or visually impaired people. Stairways
were only required to include all of the required accessibility features in
those cases where stairs constitute the only accessible route between floors.
Where there are elevators or other accessible travel routes, the standards that
were required for stairs are even less stringent. Now it is proposed that
existing facilities no longer be required to provide fully accessible stairs
everywhere stairs are the only route of travel between floors. Under current
proposals, only new facilities where stairs provide the only access between
floors will be required to provide stairs which must be fully accessible. We
believe that there are very few instances where fully accessible features were
required prior to the current proposals. We believe that there is no
justification for further narrowing instances when all features of a fully
accessible stairs should be provided.
Egress stairs and new construction constitute an
insufficient and disturbing minimization of coverage. We urge the Department to
consider significantly broadening the range of circumstances where all features
of accessible stairs should be included. We also believe that contrasting nosings should be required on all stairs in all public
buildings.
DOCUMENTATION JUSTIFYING EXAM
ACCOMMODATIONS
The
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.
We
urge the Department 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.
RESOLUTION 2008-02
Americans with Disabilities Act Concerns
Regarding Blindness and Visual Impairment
RESOLUTION 2008-10
Stadia Accessibility