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Comments of the American Foundation for the Blind on Nondiscrimination on the Basis of Disability by State and Local Governments, Equipment and Furniture

Comments of the American Foundation for the Blind

In the Matter of
CRT Docket No. 113
Department of Justice
Civil Rights Division

Advance Notice of Proposed Rulemaking

Nondiscrimination on the Basis of Disability by State and Local Governments, Equipment and Furniture

Prepared by: Mark D. Richert, Esq.
Director, Public Policy
American Foundation for the Blind
1660 L Street, NW, Suite 513
Washington, DC 20036
Ph: 202-469-6833

January 24, 2011

The American Foundation for the Blind (AFB) commends the U.S. Department of Justice (DOJ) for initiating an important dialog with the disability community concerning the most effective regulatory means for ensuring that the Americans with Disabilities Act (ADA) is as relevant as it can be to the use of equipment with which ADA covered entities expect people with disabilities, and the public generally, to interact. When the ADA was first implemented through regulations and technical assistance in the early 1990s, AFB was honored to be the lead technical assistance author under contract through a DOJ grant in providing guidance to covered entities and the public concerning the rights and obligations created by the new law as they specifically relate to individuals living with vision loss. Over the past twenty years, AFB has continued to promote the ADA's effectiveness and proper implementation through the public policy and advocacy processes, and we are pleased to offer these comments in response to DOJ's stated intent to clarify ADA responsibilities in connection with equipment and furniture accessibility. While we will address some of the specific questions posed in the above-captioned advanced notice of proposed rulemaking (ANPRM), our comments first elucidate an overall policy framework and posture which we urge the DOJ to assume in any rulemaking that DOJ ultimately undertakes. We are persuaded that this policy framework faithfully reflects the letter and spirit of the ADA, and that its use in the development of regulations will best position such proposed rules to both survive the rulemaking process and meet the needs of people with disabilities. It is therefore to that policy framework that we first turn.

The Policy Objective

The overarching policy objective of any proposed rulemaking concerning equipment accessibility should be to ensure that ADA covered entities have no doubt that the ADA reaches into every aspect of a covered entity's interaction with people with disabilities, regardless of the nature or modality of that interaction. Particularly with respect to individuals with vision loss, a disability that has a direct impact on information acquisition, covered entities must understand that the ubiquitous use of myriad types of equipment and technologies has a determinative role to play in covered entities' ability to meet their civil rights obligations under the ADA. Technology can be a tremendous liberator for people with disabilities, but it can also be a significant obstacle to full participation. Such obstacles can arise anywhere when equipment and technology access has been neglected or when certain equipment or technologies are seen as beyond the reach of the ADA.

If there is one overall criticism that can be lodged against the posture that DOJ is seeming to assume in the ANPRM, it is that there seems to be a piecemeal approach being taken. In other words, DOJ is singling out specific types of equipment for coverage by the ADA and seemingly applying categories of analysis to various forms of technology to make distinctions that need not, and should not, be made. At the end of the rulemaking process being considered, covered entities should not be thinking that they are now required to ensure some sort of accessibility to a specific number of devices or categories of devices which they have hitherto not needed to address. Rather, covered entities should be reminded that the obligations that they have always had to ensure full participation by people with disabilities are not somehow limited or inapplicable to this or that specific piece of equipment or technology which they expect customers and others to use.

Scope and Extent of Rulemaking

We would therefore expect that any regulations to be proposed, by necessity and with prudent recognition of the overall access obligations that covered entities have always had, should require minimal drafting and leave as many specifics as possible and advisable to technical assistance. We believe that a general but unequivocal regulatory statement that reaffirms the ADA's applicability to equipment and technology, as part of section 36.303 of the DOJ rules concerning auxiliary aids and services to be provided by public accommodations for instance, would be a strong and sufficient means for reminding covered entities of their responsibilities. It will then be imperative to develop the kind of excellent case-by-case analysis and contextual treatment that the Title II and Title III Technical Assistance Manuals have offered in the past. Clearly, given the DOJ's most recent refresh of the regulations implementing both Titles, revisions to the Technical Assistance Manuals are in order anyhow. We therefore strongly urge DOJ to include a general regulatory statement affirming that effective communication and the provision of auxiliary aids and services requires attention to any equipment, fixed or free-standing, that a covered entity intends customers and others to use. Such a general provision could be accompanied in the text of the final rule by a nonexhaustive list of the kind of practical examples we discuss below. However, we urge DOJ to leave extensive detail for treatment through technical assistance.

We also urge DOJ to not silo equipment accessibility and the accessibility of Internet content offered by covered entities as is proposed in the companion ANPRM which invites comment on possible Internet-related ADA regulations. Indeed, we believe that the convergence of technologies that we are already seeing today demands a holistic approach to rulemaking. To make this point clear, let us pose a scenario that is not entirely hypothetical.

If a company called offers a wireless device for sale, rent or loan that displays on-demand movies currently running in conventional theatres across the country, such a company is a virtual movie theatre, a public accommodation, and has ADA obligations to ensure that patrons with disabilities can both use and the wireless device. If we take the hypothetical a step farther and say that a wireless device per se is not involved but merely an app that the patron can download from and use on his or her smart phone, the company nevertheless has an ADA obligation to ensure that the patron with disabilities can use the app. It is also worth noting here that will also have ADA obligations to offer captioning and description for its movies.

In other words, the DOJ should take an integrated and holistic approach to articulating the ADA's relevance in a world where such convergence of technology and modalities is only expected to increase exponentially. The DOJ cannot possibly anticipate every scenario in place today or in the future wherein equipment, software and/or Internet modalities may be used alone or in concert by covered entities. Any regulations should therefore state broad requirements in general terms but point to the application of such provisions through examples that recognize both the breadth of technological options and their possible convergence.

Effective Communication and Undue Burden

Sometimes making equipment accessible to people with vision loss 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. It should also involve the purchase of equipment that is accessible "out of the box," and the ADA can and should be used to spur industry to make that happen more frequently. However, equipment that is accessible in itself remains the exception rather than the rule. Nevertheless, the combined effect of miniaturization, reduced power consumption, increased memory and functional capacity, and ever-lowering costs, means that making equipment interfaces accessible, either "out of the box" or with some modifications, is markedly more accomplishable today than was the case when the original ADA regulations were published.

In spite of the oft propounded notion that Congress did not adequately foresee the impact that technology would have on all of our lives and, therefore, the ADA's relevance to such a changing environment, the Congress did in fact anticipate that the ADA would increase in its relevance in a technological age and that the appropriate lens through which to measure covered entities' responsibilities is the undue burden standard. As the legislative history provides:

"The Committee wishes to make it clear that technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities. Such advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities. Indeed, the Committee intends that the types of accommodations and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times." H.R. Rep. 101-485(II), at 108 (1990).

When the DOJ proposed to refresh the Title II and Title III regulations a couple of years ago, we led the vision loss and wider disability community call to amend such regulations to better account for equipment accessibility. We were particularly concerned that not only did the DOJ seem indifferent to the need to enhance its regulations on the subject, we were also very concerned about DOJ's stated approach to enforcement of the equipment access obligation in the first place. In the narrative accompanying the Title III proposed refresh, for example, DOJ asserted 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 want to stress in the strongest possible terms that the use of the readily achievable standard to enforce a covered entity's obligation to buy accessible equipment or to modify equipment to make it accessible is inappropriate and will not result in the kind of sea change that it seems as though the DOJ is now interested in making happen. The readily achievable standard is inappropriate because the standard applicable to the provision of auxiliary aids and services and effective communication is the undue burden test, a much more stringent analysis. We fear that any regulations that the DOJ may now develop concerning equipment accessibility will propose the use of the readily achievable standard, as the language quoted above would seem to indicate is likely. We hope we are mistaken about that unfortunate conclusion.

As we look back at other previous statements by the DOJ concerning the posture it says it takes with respect to the communications elements of equipment, either fixed or free-standing, we do take heart. In the DOJ's preamble to its 1991 regulations, the DOJ declared that:

"[g]iven that § 36.304's focus is on the removal of physical barriers, the Department believes that the obligation to provide communications equipment and devices…is more appropriately determined by the requirements for auxiliary aids and services under § 36.303." 56 FR 35544, 35568.

Indeed, as the DOJ acknowledges in the equipment ANPRM itself, the DOJ has traditionally taken the position that the communication-related elements of ATMs are auxiliary aids and services, and are not physical elements. In spite of this recognition, confusion about which compliance standard should apply seems to persist.

Part of the confusion stems from the parallel that many advocates as well as the DOJ seemingly want to frequently draw between the access obligations applicable to the so-called built environment and to the access obligations pertaining to equipment and technology generally. Presumably these misguided parallels are drawn because, like a building, a piece of equipment is a tangible thing, unlike a covered entity's program or service which of course is not something that can be seen or touched. The problem, however, is that equipment, particularly equipment including some sort of interface or even basic electronic functions, is neither like a building nor like an intangible program or service. It is a tool for the enjoyment of a covered entity's benefits.

We urge the DOJ to fundamentally reject any parallels that the DOJ may be urged to draw between the built environment and equipment accessibility. We urge the DOJ to recognize in any regulations adopted that equipment and technology must not be treated in the same way that physical facilities are regarded. We believe that analogizing equipment-related obligations, particularly with respect to interface accessibility, to the kind of rules DOJ uses to enforce access to the built environment is poor public policy and will limit the impact of the ADA in ensuring the fullest possible participation by people with disabilities. A failure to maintain regulatory distinctions between the communications elements of a given piece of equipment and its physical accessibility issues will only get the DOJ tangled in a host of scoping, retrofitting, and phase-in quagmires.

In proposing regulations clarifying the ADA's applicability to equipment, we urge DOJ to distinguish the physical aspects of a given piece of equipment and the interface that such item may employ. For example, a specific piece of exercise equipment may allow an individual who uses a wheelchair to transfer onto the equipment but may not offer an interface allowing an individual with vision loss to operate the equipment, or vice versa. We believe that the interface components of a given piece of equipment are fundamentally about communication, the communication of information from the equipment to the user, and the communication of input by the user.

One of the principle benefits of equipment today for covered entities is the ability not to have to use in-person staff. In effect, technology is being widely used to replace human interaction, for better or worse. So, when a customer sidles up to an automated check out counter at a supermarket, the machine is facilitating the communication that is conventionally offered by a human clerk. An ATM substitutes for a bank teller. The features available on some exercise equipment allowing the user to choose from a variety of different routines or to monitor heart rate substitute for a personal trainer or the need for the staff at the gym to manipulate the equipment in some fashion on the user's behalf. In short, equipment interface is about communication on the covered entity's behalf, and the ADA requires communication with people with disabilities to be effective with or without the use of auxiliary aids and services.

The use of a regulatory framework that relies on the kind of analysis used to regulate the built environment would impose limitations on equipment accessibility, at least with respect to equipment interface, that are needless and avoidable. In what way, for example, would the updating of a piece of equipment's software or firmware be considered either retrofitting or the modification of existing facilities? The truth is that, increasingly, equipment is purchased initially, and then changes are made to the "brains" of the equipment over time. Interface features are not the same as structural design. Where a piece of exercise equipment designed to allow transfer from a wheelchair has structural permanence, user interfaces are much more manipulable and allow for adaptation. We do not advocate in these comments one way or another for the regulatory approach the DOJ should take with respect to structural design of equipment necessarily. We leave such considerations to our colleagues representing people with physical disabilities. However, we are adamant that interface accessibility be viewed through the auxiliary aids and services and effective communication lenses because such a vantage point most properly accounts for the real world design of equipment and experience of people with disabilities both today and in the future.

The Proper Role of Technical Standards

With the recent refresh of the ADA regulations, the DOJ has articulated a very useful overall performance standard for evaluating whether a covered entity has met its responsibilities in the use of equipment. As the new auxiliary aids and services rule provides:

"The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability." 28 C.F.R. 36.303(c) (1) (ii).

In short, a covered entity has met its ADA obligations when it provides timely access that allows the individual with a disability to benefit from the covered entity's offerings as discreetly and as independently as individuals without disabilities. Accomplishing these objectives may be made much more efficient through compliance with specific technical standards, but ultimately the test is not whether such technical standards have been followed to the letter. The test for ADA purposes is whether the covered entity's communication is effective, i.e., provided timely and with protection of the user's privacy and independence.

Throughout the DOJ's equipment ANPRM, reference is made to the usefulness of the section 508 standards, and the DOJ is asking for guidance as to how best to incorporate or make use of them to ensure equipment accessibility. We have long been advocates for section 508 and have played integral roles in its enactment and implementation. The section 508 standards do offer a wealth of guidance to industry in the design of products and to purchasers of such products who want some assurance that accessibility has been accounted for. However, in the ADA context, the question is not whether a given piece of equipment may have been designed to comply strictly with the section 508 standards. The question is whether the individual with a disability can interact with the equipment as effectively as others. A piece of equipment's purported compliance with section 508 may be evidence of a covered entity's efforts to meet their ADA responsibilities, but ultimately the obligation to ensure effective use of equipment is the responsibility of the covered entity, not the manufacturer.

This is a critical distinction to make because it is the far too common experience of people with disabilities that compliance with section 508 is frequently proffered by industry even where significant gaps in accessibility remain. Indeed, it is quite common for industry to sell products to the federal government which industry avers are partially compliant or even substantially compliant with section 508 when neither claim is accurate or verifiable. We dare not allow the ADA's clear nondiscrimination mandates to devolve into a debate among engineering experts before the courts as to the extent to which a given piece of equipment does or does not comply with the section 508 standards. At bottom, the relevant ADA analysis has little to do with the specific piece of equipment in question and has everything to do with the conduct of the ADA covered entity.

The only possible value in setting up section 508 compliance as the benchmark for measuring equipment accessibility, other than as part of an analysis of a covered entity's good faith in trying to meet its ADA obligations, would be to establish a safe harbor for covered entities. We categorically reject such a concept. We cannot abide a regulatory framework that essentially says that a covered entity would be shielded per se from any ADA claim simply by asserting that it has purchased equipment that is marketed as being compliant with section 508. First, in no other ADA context do we allow a covered entity to point to a third party to whom ADA responsibilities may be delegated and then, since such third party said they would do the right thing by people with disabilities and the covered entity relied on that assurance, claim that the covered entity's ADA obligations have been met even though the individual with a disability remains shut out. Secondly, it is highly unlikely that a given covered entity would have any independent means of verifying whether a particular piece of equipment is compliant with section 508. Rather, the DOJ should simply reassert in its new regulations that covered entities must ensure access to equipment they offer for use, and the auxiliary aids and services and effective communication rules should be directly incorporated into such regulations. The section 508 standards are a guide to which the DOJ can point covered entities as they work to satisfy the ADA's nondiscrimination mandates, but those mandates must not be equated with section 508 compliance.

Responses to Selected Questions

Question 1: Access Board Medical Diagnostic Equipment Standards

We certainly are supportive of the adoption of the Board's standards. We are concerned, however, that those standards do not sufficiently address the unique needs of people with vision loss. The focus seems to be on meeting the specific needs of people with mobility impairments. A good example of this absence of focus relates to hospital beds. While some equipment manufacturers have made some effort to create controls which can be used by people with vision loss, there is no agreed upon standard. This is also true with devices used to call nurses. Again, some of these devices provide minimal access such as a single Braille letter indicating which button is used to call the nurse, but there are no meaningful standards. Nevertheless, as we have tried to articulate above, the availability or absence of specific technical standards is of only limited relevance in determining a covered entity's obligation to communicate effectively with people with disabilities. Nevertheless, we do want to commend the DOJ for entertaining the establishment of general rules that would have the effect of ensuring the wider availability of equipment for treatment and rehabilitation.

Question 6: Infusion Pump Accessibility

Infusion pumps that are used for insulin with diabetics currently are not accessible. This means that many people with vision loss cannot avail themselves of a technology that might significantly improve their diabetic stability and control. Of course, someone else can operate the pump, but this does not afford patients who are blind or have low vision the opportunity to independently and privately operate such equipment. Research shows that at least one in five people living with diabetes experience a significant vision loss, meaning that failure to account for this gap in accessibility will continue to impact a sizable population of people with disabilities. We believe that the DOJ should propose and ultimately adopt rules that address the accessibility of insulin pumps for people with vision loss. Indeed, an increasing number of portable devices are being offered to patients which allow them to manage their own care conveniently and in the privacy of their homes. The mere fact that a given piece of equipment is offered to a patient for use in the patient's home is certainly no reason for the ADA not to apply. If a covered entity offers such equipment, such equipment must afford effective communication.

Question 7: Exercise Equipment in Therapeutic Settings

In terms of the needs, we do not perceive any fundamental difference between the issues that operate for therapeutic exercise equipment and those that pertain to non-therapeutic venues. However, we feel that it is important to make one additional point. To the extent that accessibility of some types of equipment has been addressed at all, the governing principle seems to be that it is sufficient to do just enough so that individuals with vision loss can perform a few of the basic functions that the exercise machine is designed to do. With the widespread use of the microchip, computers, and digital technology generally, such an approach is untenable. Machines are designed to provide both the capacity to input instructions and to output information. Distance traveled, heart and pulse rate and other vital information are now routinely a part of a user's experience with exercise equipment, but users with vision loss are shut out because basic access features have not been made a priority.

Questions 10-11: Scoping for Medical Equipment

We do not support scoping in terms of the quantity of equipment. We are convinced that there is sufficient provision for flexibility in the law afforded by the undue burden test. We also believe that, while some time will be needed to publicize the regulations and to allow for industry to respond to the expanded market for accessible equipment, the DOJ has an obligation to make it clear that covered entities are still expected to offer effective communication through the use of equipment in any case. Again, the test is not whether a covered entity can conveniently buy an item that is accessible "out of the box." The test is whether providing auxiliary aids and services and effective communication, with all that such provision means, would result in an undue burden on the covered entity.

With respect to triggering events for the purchase of new accessible equipment, again, we urge the DOJ to think about equipment not only in terms of large, virtually unmovable, static devices that rarely change. The truth is that technology is making equipment smaller, more portable, and easier to upgrade. Equipment cannot be thought of in the same way that physical facilities are viewed, at least not with respect to the interfaces of such equipment. Therefore, the question is not how many accessible devices must be on hand, or when should a covered entity buy a new accessible one. The question is whether the covered entity provides access through effective communication to the individual with vision loss who happens to require it. Beyond that analysis, it is impossible to judge whether a given covered entity should have only one or a multitude of the same device that is accessible.

Question 12: Commercially Available Exercise Equipment

This question is irrelevant to the DOJ in its current effort to clarify the ADA's applicability to equipment. The fact that a given piece of equipment that offers full accessibility features is not commercially available has nothing to do with a covered entity' responsibilities under the law. Again, those responsibilities include providing effective communication ad full enjoyment of all of a covered entity's benefits. If a gym has a fleet of inaccessible exercise equipment which can nevertheless be made accessible through modifications or add-ons that the gym can accomplish and that are not unduly burdensome for the gym, then the gym needs to make accessibility happen. Sometimes providing a tactile overlay for machine controls will be sufficient. Sometimes some sort of audible output will be necessary to achieve full accessibility. This is important analysis for the DOJ to remember because, conceivably, the commercially available accessible exercise machine might possibly be priced high enough that small covered entities could rightfully claim an undue burden to purchase them. Nevertheless, the fact that an accessible option may be too costly for a small covered entity to buy does not mean that such entity is therefore free to do nothing.

Question 13: Required Equipment

Astoundingly, this question dares to ask, "Should the Department require covered entities to provide accessible exercise equipment and furniture?" As we have tried to painstakingly argue, the ADA has never envisioned that some elements of a covered entity's benefits to its customers or the public are somehow off limits, particularly with respect to a covered entity's obligation to communicate effectively with people with disabilities. We surely hope the DOJ does not issue proposed rules that would seem to suggest that covered entities do not have any obligation to make equipment accessible but for the adoption of some sort of future final rule providing for such an obligation. What we think the DOJ is struggling to ask here is whether a covered entity should be required to purchase an accessible piece of equipment if such equipment happens to be available on the market. Presumably the answer would of course be yes, if the purchase of that equipment would not result in an undue burden for the covered entity. However, we again assert that this is because the obligation is on a covered entity to afford effective communication unless doing so is unduly burdensome, and the form that satisfaction of that expectation takes is a secondary matter. Would most people with vision loss prefer equipment that is accessible "out of the box" and which does not require a covered entity to try and devise stop gap measures to achieve access? Certainly. However, the ADA does not prescribe the means for achieving access but only the end that must be achieved.

Question 18: E&IT

This question asks for input concerning the unique access challenges posed by certain types of equipment that the DOJ is categorizing as electronic and information technology and is therefore attempting to distinguish somehow from other categories of equipment. We urge the DOJ to craft proposed rules that do not enshrine artificial and needless distinctions among various forms of equipment. This is particularly important given that the lines of distinction between a computer and a phone, or a television and an information kiosk, or a blood pressure monitor and a sophisticated telehealth device, are breaking down faster than most of us are aware. Moreover, no matter how unsophisticated or how "smart" a given device might be, the ADA still expects covered entities to ensure effective communication via the devices they offer.

Since the Department invites consideration of equipment issues in this area that have not specifically been referenced previously, we ask the DOJ to be cognizant of the fact that equipment access and effective communication with or without auxiliary aids and services has broad application indeed. Vending machines, ranges, ovens, washing machines, dryers, thermostats, and a host of other helpful appliances and equipment are routinely offered by both Title II and Title III covered entities. To illustrate this point, we assert that the ADA currently requires an extended stay hotel offering in-room kitchen facilities to ensure that the full compliment of equipment it offers for use by guests must be accessible within the constraints we have been describing in these comments. We would of course make such an assertion because we are advocating for people with vision loss. The DOJ's current regulations, however, are vague and half-hearted with respect to the ADA's application to such equipment. In particular, the conventional ADA wisdom is that the extended stay hotel could meet its obligations today by having hotel staff assist a guest with operation of the equipment. However, under the DOJ's refreshed ADA regulations, which take effect March 15, 2011, that require effective communication to honor the privacy and independence of the hotel guest, simply providing assistance is not acceptable. We commend the DOJ for enhancing the auxiliary aids and services and effective communication rules. We urge the DOJ to take the next logical step in rulemaking and connect the dots for covered entities who, either willfully or out of ignorance, fail to appreciate that the ADA may very well require them to buy accessible microwave ovens or modify the ones they currently have.

We will only note here that the DOJ can and should expect covered entities to provide a much wider array of telecommunications and video equipment in the future as a result of the landmark Twenty-First Century Communications and Video Accessibility Act (P.L. 111-260). For example, under Title II of the Twenty-First Century Act, manufacturers of video programming devices, such as digital televisions, set top boxes used for cable and satellite programming, and a host of other popular video programming recording and playback devices will be available. Consequently, covered entities, such as places of lodging, will have even more affordable options at hand in the near future than they may currently have today. Nevertheless, the DOJ should propose new rules that provide that, whether today or years from now, covered entities continue to have an obligation to afford effective communication through the equipment they expect patrons to use unless doing so results in an undue burden. The fact that the Twenty-First Century Act will spur industry's future innovation to meet the needs of people with disabilities will go even farther toward ensuring that covered entities will not face undue burdens as they meet their ADA equipment access responsibilities.

Question 19: Communication from Certain Rooms/Facilities

We are troubled that the Department is once more considering a far-too-narrow problem and largely in the context of one form of disability rather than recognizing that the problem is more general and needs to be considered more broadly. Effective communication does not simply involve people who are deaf. It also applies to people with vision loss. People who are blind or visually impaired are finding themselves increasingly unable to access message indicators on complex telephones which are now routinely deployed, remote controls provided for television viewing, thermostats for adjusting the temperature of rooms and, even, locks which use lights as the only indicator of a change. Places of public accommodation such as hospitals, nursing homes and places of lodging have an affirmative obligation to make their facilities accessible to all people with disabilities. This question illustrates once again why the DOJ needs to take a holistic approach to rulemaking.

Question 20: Scoping and Triggering Events for E&IT

We will only say here that, again, we reject the notion of scoping per se as it applies to a covered entity's obligation to offer accessible equipment. We once more urge the DOJ not to set up any distinctions between so-called E&IT and other forms of equipment. For ADA purposes, there is no meaningful distinction between E&IT and other forms of equipment to which covered entities must ensure private and independent access unless doing so would result in an undue burden. We also know that other commenters are similarly stressing to the DOJ how vast and diverse is the array of both high tech and low tech equipment being deployed in all manner of settings maintained by ADA covered entities. If the DOJ proposes rules that single out this or that category of equipment, the inevitable result will be that advocates will have to go to great lengths to justify ADA applicability to those particular items that happen not to be addressed in the regulations or which opponents will argue are outside such regulations.

This is why we urge the DOJ to simply build regulatory provisions connecting the auxiliary aids and services and effective communication rules with language making it clear that both fixed and free-standing equipment which covered entities expect patrons to use are within the ADA's reach. Because sometimes such equipment can be modified with simple adaptations to afford effective communication, and sometimes equipment that is accessible "out of the box" or even supplemental equipment may need to be obtained, it is inadvisable to prescribe specific scoping or triggering regulations. Covered entities must simply understand that effective communication, i.e., timely, private and independent enjoyment of a covered entity's benefits, must be provided to people with disabilities unless doing so results in an undue burden. We concede that, given the settled nature of the ADA's implementation with respect to ATMs, there is no need to open up treatment of ATMs in any new rules the DOJ may propose. Beyond that narrow and well-established exception, any new equipment rules must be clear to apply to fixed and free-standing equipment, speak in terms of the effective communication and undue burden provisions to ensure accessibility, at least with regard to such equipment's user interfaces, and leave any remaining particulars to technical assistance. We are persuaded that doing so is not only consonant with the letter and spirit of the ADA; such an approach will be both politically more palatable and reasonable on its face while eliminating regulatory ambiguities which pose obstacles to the appropriate application of the ADA in a technology-saturated society.

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