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AFBAmerican Foundation®
for the Blind

Expanding possibilities for people with vision loss

AFB Comments on Title II & Title III ADA Proposed Rulemaking

Comments of the American Foundation for the Blind
submitted to the
United States Department of Justice
Civil Rights Division
regarding the

Notices of Proposed Rulemaking
CRT Docket No. 105
28 CFR Part 35
Nondiscrimination on the Basis of Disability in State and Local Government Services
(73 FR 34465)

and

CRT Docket No. 106
28 CFR Part 36
Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities
(73 FR 34508)

August 18, 2008

For more information, contact
Mark Richert
Director Public Policy
202-822-0833
mrichert@afb.net

The American Foundation for the Blind (AFB) is pleased to offer comment on the Department's proposed revisions to its regulations implementing Titles II and III of the Americans with Disabilities Act (ADA). Founded in 1921, AFB is a national nonprofit providing leadership in the formulation and implementation of public policy concerning the needs, capabilities and rights of all individuals experiencing vision loss. AFB played a pivotal role in the collaborative efforts leading to the enactment and regulatory implementation of the ADA, and as a grantee of the Department in the early 1990's, we authored vision loss-specific technical assistance materials that have been widely used and which today remain the most comprehensive and directly relevant guidance for individuals who are blind or visually impaired.

While we are appreciative of the opportunity to react to the Department's proposed rules, we want to go on record, yet again, with our profound disappointment with the far-too-short comment period provided by the Department. A 60-day comment period for a set of proposed detailed regulations that should have been proposed years ago and which raise myriad questions and complicated matters is grossly insufficient, inappropriate, and fundamentally unfair. It would seem to us that the public should have an opportunity to evaluate and respond to the Department's extensive proposed regulations that is at least comparable to the time that the Office of Management and Budget took to clear this material. The OMB officially took twice the 90 days allowed for review and clearance, and yet there is now an apparent rush to complete this critical regulatory proceeding this year. This seems negligent at best and, we fear, will not result in the receipt of the breadth and thoroughness of public comment enabling the Department to effectively account for the public's input and expertise.

Regarding the proposed rules themselves, we are pleased to join with our colleagues in the Consortium for Citizens with Disabilities (CCD) with whom we work regularly to provide comment on an array of issues beyond those pertaining primarily to vision loss. We are also incorporating into our comments below the text of comments prepared by our colleagues who collaborated to produce comments published at www.dredf.org responding to the Department's Safe Harbor proposed rules.

In addition, the comments below respond to those questions and proposals with direct bearing on the rights of individuals who are blind or visually impaired to access to, and full enjoyment of, the goods, services, programs and activities of state and local government entities and public accommodations. Accordingly, wherever an issue has both Title II and Title III implications, we have integrated our discussion concerning both Titles under each heading.

Effective Communication--Auxiliary Aids and Services

The regulations concerning effective communication have never been articulated with the precision needed to ensure that information access is provided to people with disabilities on terms of genuine equality with people without disabilities. If the Department does not more fully elucidate the concept of effective communication, virtually any claim by an individual with a disability for specific communication-related accommodations amounts to a test case. This uncertainty must be remedied if the right to information access is to be assured.

Whether one considers, as examples, the persistent refusal of municipalities (even with timely notice) to provide information, such as meeting materials or utility bills, in alternate formats; or public entities' persistent use of inaccessible websites 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 disabilities are being denied the ADA's promise of independence and equal participation.

Not only does the Department neglect to articulate the concept of effective communication more satisfactorily in the proposed rules, the Department proposes to add insult to injury. We object 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 Title II covered entity. 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, we categorically oppose this unwarranted and unjustified recommendation. Indeed, we are seriously concerned that this proposed deletion was not mentioned at all, let alone thoroughly discussed, in the NPRM.

Accordingly, we urge the Department to amend sections 35.160 and 36.303 to account for the range of concerns described above. Specifically—

Amend 35.160 by renumbering subsection (b) as subsection (b)(1) and add thereafter the following—

(2) In determining what type of auxiliary aid or service is necessary, a public entity shall give primary consideration to the requests of the individual 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 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.

Amend 36.303(c)(1) as follows—

"(c)(1) 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."

Effective Communication--Companions

Proposed Change to 28 C.F.R. &167; 35.160(a): The Department proposes amending &167; 35.160(a) to expand the obligation of state and local governments to ensure effective communication, not just to applicants, participants, and members of the public, but also to their companions.

We support this proposed amendment. There are numerous situations in which the interests of persons with disabilities participating in state and local government programs, services, or activities require that their companions be provided effective communication. Public hospitals may need to communicate with the family members or friends of admittees with disabilities, particularly if such a companion is a designated health care decisionmaker for the individual with a disability. Public schools may need to communicate with the parent or guardian of a child with a disability regarding special education or other services. Parents or guardians, including foster parents, of children with disabilities may need particular auxiliary aids or services for effective communication with other child serving agencies.

Proposed Change to 28 C.F.R. &167; 36.303(c)(1)(i): The Department proposes amending &167; 36.303(c)(1)(i) to expand the obligation of public accommodations to ensure effective communication, not just to applicants, participants, and members of the public, but also to their companions.

We support this proposed amendment. There are numerous situations in which the interests of persons with disabilities receiving goods or services from, or participating in the programs of, a public accommodation require that their companions be provided effective communication. Private hospitals may need to communicate with the family members or friends of admittees with disabilities, particularly if such a companion is a designated health care decisionmaker for the individual with a disability. Private schools may need to communicate with the parent or guardian of a child with a disability regarding special education or other services. Companions who are assisting persons with disabilities to obtain services from private social service providers may need particular auxiliary aids and services for effective communication. In these situations and others, in order to serve an individual with a disability in accordance with Title III, the public accommodation must also effectively communicate with that individual's companion.

Examinations and Courses

We agree with the proposed amendment to Section 36.309 and recommend further clarification. The revision to this section makes clear that licensing, certification, and other testing authorities covered by Title III must not make overly burdensome requests for documentation when responding to an individual's request for reasonable modifications in the administration of an examination. The amendment protects the rights of people with disabilities by assuring that they will not be subject to unreasonable and intrusive requests for information in a process that should be focused on providing effective modifications in a timely manner in order to achieve the core objective of Title III, which is to provide equal access for people with disabilities.

We also recommend that the department expand the final regulatory language to ensure that regulations accurately provide guidance and support the comments made about reducing the burden of documenting the diagnosis and existence of a disability.

Specifically we recommend the following language—

(iv) any request for documentation if such documentation is required is reasonable and limited to the need for the modification or aid requested. 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 letter from a qualified professional or evidence of a prior diagnosis, accommodation, or classification, such as eligibility for a special education program.

Equipment

The proposed Title II and Title III regulations fail to address the need for accessibility to equipment provided by state and local government entities and 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 Department is acknowledging as much in the narrative accompanying the proposed regulations. For example, according to the Department,

"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 the Department 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.

As a result, ADA coverage for most of the equipment to which people with disabilities, such as people with vision loss, for example, 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. 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.

In spite of the fact that the Department is proposing not to address equipment accessibility, the Department is certainly aware of the issues. Remarkably, instead of spelling out additional regulatory requirements per se, the Department merely acknowledges 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 therefore urge the Department 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. The Department should reference specific examples of equipment (such as those outlined above) that best illustrate how such equipment's 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. Equipment accessibility is equally relevant in the context of Title II. Equipment such as automated teller machines, information kiosks and vending machines are frequently located in facilities operated by state and local government entities and hence, equipment accessibility should be addressed in the Title II regulations in a comparable manner to that which we propose for the Title III regulations.

Access to Internet-Only Goods and Services

The Department 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 Department 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 demonstrates how courts are likely to apply the ADA in the on-line environment. Specifically, the Target case illustrates the problem with the ambiguity in current law that seems to allow those public accommodations that conduct business exclusively online to avoid their nondiscrimination obligations under the ADA.

If this ambiguity is not remedied, it seems 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. With more and more goods and services being made available exclusively online, the failure of the Department'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.

Therefore, the Department should explicitly include reference to, and provide specific examples of, Internet-related delivery of the goods, services, programs and activities of ADA Title II and Title III covered entities throughout the regulations wherever possible. The Department should clarify that neither public accommodations nor public entities can freely discriminate against people with disabilities simply by moving their offerings exclusively online. Finally, just as the Department has already undertaken to provide guidance to state and local governmental entities, the Department should provide technical assistance to public accommodations in making their presence online more accessible. The Internet access standards promulgated pursuant to section 508 of the Rehabilitation Act are a good starting place for such technical assistance.

Narrative Description of Movies

We support the Department's proposal to issue regulations requiring theaters to provide narrative description of all films. Parenthetically, we urge the Department to henceforth make reference to "narrative description" by use of the term "video description" as the latter term has been in use for decades and is more widely recognized and understood. Going to the movies is a very popular activity. Literally millions of people with disabilities would benefit from wider availability of video description. The National Health Interview Survey indicates that over 20 million adults in the U.S. experience significant vision loss even with eyeglasses or contacts. Moreover, the benefits of video description will accrue to a wide range of people with disabilities. People with multiple sclerosis or diabetes, for example, often experience low vision that would interfere with their ability to view a movie. When video description is not available for a film, this prevents people with vision loss from enjoying a movie in the same way as people without disabilities. We believe strongly that video description should accompany all movies being produced in digital format and should be provided at all theaters that use digital technology to display movies. Indeed, video description should be provided in any instance and at every venue wherein visual information is an essential part of the information conveyed or performed.

Service Animals

We appreciate the Department's response to the many issues raised over the years concerning the use of species which may pose a threat to public safety or which cannot be housebroken or task-trained. We believe the continuing use of wild or exotic species would have a seriously eroding effect on societal tolerance for service animal teams in public places. That having been said, we do not actively 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 have disabilities. This perspective is based on our general desire to see a greater emphasis on the qualification of teams and adherence to standards for public behavior and appropriate task training. Finally, we are sympathetic to the Department's attempt at distinguishing between animals performing specific functions and those animals used solely for comfort or well-being. We do want to recognize the value that service animals can and do play for individuals with disabilities beyond vision loss. We therefore urge the Department to further draw the exclusion of animals solely for comfort narrowly with accompanying appropriate examples.

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 countless individuals with vision loss that detectable warnings provide a reliable alert to hazardous environments and prevent 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. Finally, 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.

Safe Harbors

Comment on 1% Safe Harbor for Qualifying Small Businesses

Summary

We oppose the proposal to create a safe harbor for small businesses that have spent 1% of gross revenues on barrier removal because:

  • The proposed safe harbor is inconsistent with the intent of Congress and the language of the ADA requiring case-by-case analysis;
  • A blanket formula is less fair and less effective than case-by-case analysis;
  • SBA standards for "small business" are too expansive and unworkable as a civil rights standard;
  • The proposed safe harbor would allow one year of token spending to erase years of obligation accumulated through inaction;
  • The proposed safe harbor would discourage planning to remove significant barriers and provide meaningful access.

If, despite these flaws, the Department elects to adopt these standards, significant safeguards must be added to prevent abuse.

Comment

The Department proposes a very significant change to the Title III "readily achievable barrier removal" requirement for existing facilities. We register the strongest possible opposition to this change, which would create a safe harbor that declares "a qualified small business has met its obligation to remove architectural barriers where readily achievable for a given year if, during that tax year, the entity has spent an amount equal to at least one percent (1%) of its gross revenue in the preceding year on measures undertaken in compliance with barrier removal requirements," for the following reasons.

The proposed safe harbor is inconsistent with the intent of Congress and the plain language of the Act . Section 301 (9) of the ADA defines "readily achievable" and establishes a set of factors to be considered in determining whether an action is readily achievable. Every one of the factors prescribed by Congress for consideration in determining whether and action is readily achievable focuses on the particular circumstances of the individual covered entity, or on the particular act in question. It is clear that Congress intended that the question of what is or is not readily achievable be settled through an individualized case-by-case assessment. As the legislative history makes clear, "What the 'readily achievable' standard will mean in any particular public accommodation will depend on the circumstances, considering the factors" in the definition. H. Rep. 101-485, pt. 2 at 110, 1990 U.S.C.C.A.N. 303, 393. The proposed safe harbor would exempt a very large and extremely diverse class of businesses from performing such individual assessments and from providing the level of access for people with disabilities that was mandated by Congress by relieving that class of businesses of the obligation to remove barriers to access, when, in many cases, removing those barriers would have been readily achievable, as defined by Congress. The Department is taking it upon itself to eliminate the factors Congress set forth, and replace those factors with two of its own creation, for which there is no basis in the statute -- the SBA Size Eligibility Provisions and Standards, and the spending cap.

A blanket formula is inherently less fair and less effective than the current case-by-case determination for whether an action is readily achievable . Applying the factors set forth by Congress to a case-by-case analysis of what actions are readily achievable provides better, more consistent consideration of the particular needs of individual smaller, poorer or more stressed businesses, than the proposed safe harbor, while also ensuring that people with disabilities are afforded the level of access mandated by Congress.

The SBA standards for small business concerns are so expansive that adopting this proposal would be a de facto abandonment of the principle of case-by-case determination for whether an action is readily achievable . On its web site, the SBA uses a simplified definition of "small business" that excludes many of the businesses that are included under the Size Eligibility Provisions and Standards, to claim that 99.7 percent of all firms in the United States that have employees are small businesses. The Size Eligibility Provisions and Standards serve to delineate the size and make up SBA's domain and constituency, so the Administration strives to ensure that they are as inclusive as it can make them. These standards embrace a wide range of businesses which no reasonable person would consider to be small, or in need of such a safe harbor, including businesses in many categories that have up to 1,500 employees. Convenience stores, supermarkets, department stores, and gas stations with convenience stores, can each have average annual receipts of $25M and still be "small" businesses under these standards. Hospitals and specialty hospitals can have average annual receipts of $31.5M, nursing care facilities $12.5M and private residential facilities for people with developmental disabilities $9M. Banks, savings and loans and credit unions with assets of up to $165M each are "small" businesses under these standards. This proposal would create a safe harbor so vast that it would be likely to shelter nearly all places of public accommodation except for the handful of national chains in which the properties are owned and controlled by the central corporation.

The SBA definition of a small business concern is unworkable as a civil rights standard. In fact it is not a single standard. SBA's Size Eligibility Provisions and Standards are 1,200 different industry specific standards, some of which are based on annual receipts, some on the number of employees and yet others on assets, each of which is subject to change without reference to the others. These standards are not known in the business community, except among those businesses that have applied for an SBA program, and they not widely understood by any community. It is unconscionable to propose that people with disabilities be required to navigate through these labyrinthine provisions that set separate standards for, for example, men's clothing stores, women's clothing stores, and children's clothing stores, in order to determine what access rights they might have with a particular public accommodation.

The class of businesses included under the SBA Size Eligibility Provisions and Standards is huge and vastly diverse. It includes many businesses that have up to 1,500 employees, $31.5M in average annual receipts, or $165M in assets. Such a business should not be considered a small business for the purposes of the readily achievable barrier removal standard!

The relationship between a business' gross revenue and its available resources is equally variable. Some businesses depend on a very high volume of trade and may have profit margins dropping below 1%, while others, including those providing high end luxury goods or services, tend toward low volume, but with very high profits. Case-by-case consideration of the factors delineated by Congress ensures that those individual variations are accounted for in determining a business' level of obligation. The proposed safe harbor would bury all of that diversity under a single imposed formula that has not been shown to be appropriate for any of the businesses it would cover!

The inescapable result would be that the wealthiest of these businesses, the ones that could most easily afford to meet their obligations to provide access for people with disabilities, will have a substantial portion of those obligations waived by an arbitrary spending cap, while the poorest, most fragile businesses, those most in need of protection and individual consideration, will be further burdened by what, for them, will amount to an arbitrary spending floor.

The proposed safe harbor would allow one year of token spending to erase years of obligation accumulated through inaction. Readily achievable barrier removal is a continuing obligation. A public accommodation that has habitually failed to take those steps to remove barriers that were readily achievable for it has accumulated a growing disparity between the level access it provides and the level of access mandated by Congress. The proposed safe harbor would ignore a covered entity's history of action or inaction in removing barriers to access over the full course of its obligation, by maintaining that its obligation for the current year has been met if it spent an amount equal to 1% of its previous year's gross receipts on barrier removal. This would amount to a tremendous gift to those businesses which could have been removing barriers and improving access, but have chosen to ignore the law and do nothing. That gift would be at the expense of people with disabilities who will have been denied the level of access to those businesses that was mandated by Congress. And it would be a slap in the face to those business that have been responsible and conscientious in identifying and removing barriers to access as it became readily achievable to do so.

The proposed safe harbor would discourage planning to remove significant barriers and provide meaningful access . If a business' barrier removal obligations are met by spending 1% of its gross receipts in discrete, annual allotments, that business would never have an obligation to remove any significant barrier that cost more than its annual spending cap. A business that tried to save up for a larger project, or to spread the cost of that project over a few years, as it could under the current requirements, would lose its protection under the proposed safe harbor. As a result, businesses wanting to maintain this shelter would dole out their spending for barrier removal in annual 1% increments. Once the goal of the spending becomes reaching the annual cap in order to maintain coverage, any impact that spending has on improving access to the goods and services becomes a secondary issue. When the cost of removing a significant barrier does not fit the spending pattern established by the safe harbor, the business will leave that barrier alone and focus instead on a string of minor, possibly meaningless projects, simply to meet its spending lid. In effect, the proposed safe harbor would have these businesses paying what would amount to an annual protection fee.

Mitigating the harm of the proposed safe harbor

The Department must reject this safe harbor, which would largely eviscerate Title III's existing facility provisions, due to all the important reasons stated above.

If, in spite of these fatal flaws, the Department insists on adopting the proposed small business exemption, we strongly urge the following measures to bring the safe harbor closer to the intent of Congress and the language of the Act.

The Department could limit the scope of the safe harbor without conflicting with the Small Business Act, by not defining small business at all, and instead offering the safe harbor only to businesses that are eligible for the ADA Small Business Tax credit under Sec 44 of the IRS Code. It is crucial that the Department not use a definition of small business that brings with it the enormous complexity of the SBA standards and includes many businesses that no reasonable person would consider to be small, or in need of such a safe harbor, including businesses that have up to 1,500 employees and include department stores and banks.

The spending level that triggers the safe harbor should be cumulative, reflecting the continuing nature of the readily achievable barrier removal obligation. A business should not be able to erase years of obligation accumulated through inaction, or insufficient action by spending up to the safe harbor threshold for one year. Thus, a qualified small business should not be entitled to the safe harbor unless it has spent 1% of its gross revenues on barrier removal every year since the applicable effective date of the ADA.

A written barrier removal plan should be required for any business seeking to use the safe harbor . The plan should contain a prioritized list of significant access barriers, a schedule for their removal, and a description of the methods used to identify and prioritize those barriers, including documentation of any involvement by disability organizations or people with disabilities. Only spending consistent with the plan should count toward the safe harbor threshold. The Department has consistently supported such plans as evidence of a good faith effort. A safe harbor based on a barrier removal plan rather than a spending cap would be more consistent with the language of the Act.

A business seeking access to the safe harbor should be required to apply for any tax credits or deductions that might reasonably be available for the spending it intends to apply against the threshold, and the value of any such deduction or credit obtained should be subtracted from the countable spending.

A business' compliance with the requirements of the proposed safe harbor should serve only as rebuttable evidence that the business has met its readily achievable barrier removal obligations. This would allow the possibility that a person with a disability could show that what is readily achievable for a particular place of public accommodation is so substantially greater than the safe harbor that applying the safe harbor in that instance would be inconsistent with the Act. Further, if this safe harbor is adopted, the Department should make very clear that, in any litigation concerning barrier removal, the business has the burden of proving that it complied with this standard.

A business asserting that it has met the requirements of the safe harbor should be required to maintain and provide upon requests records of its gross receipts, amounts spent on barrier removal, tax deductions and credits sought and obtained, its barrier removal plan, and any other documents a person with a disability might need in order to evaluate that business' claim. People with disabilities should not have to file suit to learn whether a business is or is not in compliance. Financial and barrier removal information must be provided upon request.

Providing Just One of Any Type of Facility Does Not Constitute "Program Access"

The Department seeks comments regarding whether a 'reasonable number, but at least one' of a feature would be a workable standard to determine program access. (Question 24, p.24486; Question 30, p.34487.) This standard is neither workable nor reasonable. This proposed new standard would be discriminatory because it would result in unequal access for persons with disabilities, and it would also have the effect of segregating disabled and nondisabled persons.

Consider the following examples:

  • A city could install one curb cut ramp per block, and then claim it had met the standard for accessible sidewalks.
  • A school district could claim that, because it had made one elementary school in the district out of thirty accessible to people with disabilities, none of the other elementary schools would need to be brought up to accessibility standards.
  • A state could bring one out of twenty courthouses up to accessibility standards and claim to have met the accessibility standard.
  • A city could claim that it complied by making only one public park accessible out of the seven parks that serve different neighborhoods in that city.

In all four examples, the end result would be the same: the segregation of people with disabilities from the rest of the population. This would directly contravene the stated purpose of the ADA. Where a public entity provides multiple facilities (such as libraries, parks, pools, schools, courthouses, etc.) to serve different neighborhoods or geographic locations, it is necessary for people with disabilities to be able to access the benefits of such programs when they are provided on a local or neighborhood basis to the general population. Further, if persons with disabilities are only able to use one of seven public parks (for example), by definition persons with disabilities have been provided with access that is inherently unequal to that provided to nondisabled persons. Not only is their choice among parks effectively eliminated, but most likely, they must face the burden of leaving their neighborhood to travel to an accessible park, which is a burden that is not imposed on nondisabled persons. All these factors, and others, must be considered when establishing what is required to comply with the program access standard. For example, does the city have effective accessible transportation? If not, one park or playground in one corner of the city does not provide program access.

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