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AFB DirectConnect: 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 mrichert@afb. net


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--

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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