Comments on the Regulatory Impact Analysis
We are very concerned that the Regulatory Impact Analysis (RIA) fails to account for the full impact of the proposed regulations, including the 2004 ADAAG as well as revisions to parts 35 and 36 of Title 28 of the Code of Federal Regulations. The RIA:
Virtually ignores important but non-quantifiable and/or non-monetizable benefits of regulations that promote access and independence for individuals with disabilities, thereby significantly understating the benefits of the proposed regulations;
Uses time as a metric to quantify a number of other benefits -- for example, convenience and dignity -- when it is far from clear that all relevant benefits were so quantified;
Fails to account for significant monetizable costs to individuals with disabilities;
Perpetuates discrimination against individuals with disabilities by valuing their time at precisely one-half the value assigned to the “average production worker,” effectively -- and perhaps circularly -- enshrining past discrimination in the RIA’s cost-benefit analysis;
Fails to make explicit the benefits to the business community from increased access and therefore increased visits; and
Takes no account whatsoever of the costs to people with disabilities and potentially to the business community of the Department’s failure to adopt other proposed regulations that would increase access and independence.
Consideration of Non-Quantified and/or Non-Monetized Benefits
OMB’s Circular A-4, which guides the development of regulatory impact analyses under Executive Order 12866, states that “[a] complete regulatory analysis includes a discussion of non-quantified as well as quantified benefits and costs.” Circular A-4 at 3. Indeed, “[w]hen important benefits and costs cannot be expressed in monetary units, [a benefit cost analysis] is less useful, and it can even be misleading, because the calculation of net benefits in such cases does not provide a full evaluation of all relevant benefits and costs.” Id. at 10.
The DOJ’s RIA is very clear that it does not attempt to address these unquantifiable benefits. RIA at 102-04. Indeed, the RIA states that because “only use value has been quantified in this analysis. . . . the analysis is conservative -- it likely understates total value.” Id. at xii. Any consideration of the net present value (NPV) of any of the proposed regulations must be informed by the fact that it does account for:
The value per se of independence, integration and nondiscrimination;
The value of accessibility to people without disabilities, for example, the increased usability of facilities in general when, for example, items are within reach or more room is provided in restrooms or the benefit to families and friends of people with disabilities who use facilities in integrated groups;
Future value to people who are not currently disabled but who will someday be disabled themselves or accompany friends or family members with disabilities.
After almost 80 pages devoted to explaining the identification and calculation of monetized costs and benefits -- such as the costs of construction and benefits to people with disabilities in time saved using the facility -- the RIA devotes three pages to unquantified benefits. RIA at 102-104. That section properly acknowledges that unquantified benefits of the proposed regulations include: “harmonized guidelines; increased business opportunities; increased social development; improved health benefits; higher social equity levels; user benefits for people without disabilities; and benefits to employees.” RIA at 102.
However, the discussion of those values is diluted by several incorrect assumptions. For example, while acknowledging the value of integrated play areas, the RIA then says that this value may be overestimated because disabled and non-disabled children can mingle at church or school. RIA at 102-03. This fails to account for the important role of play in a child’s life, and the importance that integration reach all parts of our lives, not just isolated parts such as church or school. Similarly, the RIA asserts that other unquantified benefits may be overestimated because of duplication of accessible facilities. But perhaps the most important unquantified benefit is the ability to go as many places and do as many things as people without disabilities. This requires that even -- in the RIA’s example -- three play areas in a single block should all be accessible, or some key unquantified benefits are lost.
It is essential, in considering the net present value of any given proposed regulation, that a far broader set of unquantified benefits be given the full consideration to which they are entitled.
Use of Time-Saving as a Standard Metric
The RIA expresses benefits to individuals with disabilities as time-saving. See generally Appendix 4, Table K. While the authors appear to have worked to quantify many various benefits -- for example, convenience -- using this metric, it is far from clear that all relevant benefits have been properly represented and thereby considered in the analysis. The RIA states that it has attempted to capture the “enhanced quality of” facility access and use, RIA at 23, but it relies on what appear to be several very general studies to quantify those factors, for example, studies showing that transit riders value sitting over standing. Id. at 24. It is unclear whether the RIA accounts for such “enhanced quality” as avoiding injuries incurred attempting to use inaccessible facilities or -- in the case of restrooms -- avoiding personal hygiene accidents that result when accessible facilities are not available. While these are two extreme examples, the RIA suffers from the flaw -- perhaps only one of transparency -- that the reader does not understand the range of factors considered in “enhanced quality” of facility use or access that are then expressed in the common metric of time.
Failure to Account for Real Monetizable Costs
The RIA does not attempt to capture certain quantifiable, monetizable costs to individuals with disabilities incurred when facilities are inaccessible. Because certain of these costs will be avoided with the new regulations, this failure is another way in which the RIA understates the benefit of the proposed regulation.
The two key costs that the RIA does not account for are increased transportation costs when individuals with disabilities avoid inaccessible facilities and travel farther to use accessible facilities, and costs associated with obtaining assistance in using inaccessible facilities. An example of the latter is the benefit attributed to the increase in the number of van accessible parking spaces: “Waiting time decrease for a van user to circle the lot, park further away or wait for driver.” RIA at 262 (emphasis added). Not only might a person with a disability have to wait for a driver if there is no accessible parking, he or she might have to hire one, either in the form of using attendant hours on driving or by paying for a taxicab. While this factor -- the need to pay for assistance -- was taken into account in the new regulations governing recreation facilities, it was not with respect to any elements regulated by the 1991 Standards.
Unless the avoidance of these out-of-pocket costs to people with disabilities is accounted for, the RIA understates the benefits of the proposed regulations.
The Time of People with Disabilities is Valued at One-Half the Average
Given that time is the common metric used in the RIA, the value placed on time becomes the key financial metric used to calculate net present value. To get this figure, the RIA assigns a monetary value to the amount of time it takes to do something. However, the value it assigns to the time of people with disabilities is precisely half the average.
The RIA starts with the assumption that time is valued by how much you could earn using that amount of time. It uses Bureau of Labor Statistics estimates of the average wage for the average production worker: $17 per hour. However, it states:
It is assumed that the average for the low income population is half of the average wage rate or, $8.50 per hour. Due to a high proportion of persons with disabilities being low income, the $8.50 wage rate is used as a conservative estimate for their baseline value of time.
RIA at 44-45. In other words, because historically -- in no small part due to the inaccessibility of the built environment -- people with disabilities have had lower incomes, their time will be valued at a lower amount in considering the costs and benefits of increasing the accessibility of the built environment. This has the potential -- if the figures in this RIA are used to justify a decision to forego increased accessibility -- of perpetuating a circular excuse for discrimination. People with disabilities don’t earn as much, so their time isn’t as valuable, so increased accessibility appears to have a higher net present value, so increased accessibility isn’t required, so people with disabilities continue to be excluded and can’t earn as much.
We take issue, at a more fundamental level, with valuing someone’s time by the amount of money they can make with it. This suggests that, for example, the time of a Wall Street lawyer is more valuable than the time of a schoolteacher; the time of a professional athlete is more valuable than the time of a small-town minister. While this assumption provides handy numbers to slot into the prescribed analysis, it is sufficiently objectionable to call the entire enterprise into question.
This discriminatory and circular assumption leads to others as well. For example, the RIA assumes that, because people with disabilities earn less, they “would be underrepresented at some facilities, such as typical luxury facility visits (sports stadiums, opera houses, museums) and overrepresented at other facilities (government housing, laundromats).” RIA at 43. Table 4F lists a large number of facilities that people with disabilities are assumed to patronize at only 60% of the average: hotels; restaurants; movie theaters; stadiums; auditoriums; shopping malls; museums; parks or zoos; amusement parks; and a wide variety of recreation facilities such as bowling alleys and exercise facilities. RIA at 247-48.
Thus in any consideration of this vast array of facilities, the benefit to people with disabilities of regulations that increase access (and the cost to them of foregoing such regulation) is deeply discounted -- twice -- based on an unfair assumption, because the reason they may not patronize certain facilities is because of the very discrimination that this regulation should be addressing. This is fatally flawed and cautions against using any of these figures as a basis to reduce, or refuse to increase, access.
Failure to Make Explicit The Benefits to Business of Increased Access
The RIA does not break out -- for separate analysis -- the benefits to business of increased patronage by individuals with disabilities. While the overall benefit to society of such increased patronage is taken into account, the failure to identify those benefits specifically as benefits to business may lead to comments from business that significantly overstate their costs.
We urge the Department in the final RIA to analyze the benefits to business separately to make those benefits clear.
The Cost of Measures Foregone
The RIA also has no way to account for the cost to people with disabilities of regulations either not considered, or considered and rejected. While we recognize that such an analysis may not be called for or even permitted under Circular A-4, its absence leads to a very incomplete picture of the costs and benefits of this regulation as a whole.
For example, as part of the rulemaking process, many disability rights organizations requested that the Department of Justice clarify that moveable display racks in new construction are required to be on an accessible route. The Department declined to do so. This decision will cause many retail facilities to be inaccessible to individuals who use wheelchairs, at enormous cost to them, including: the need to find or hire people to accompany them shopping; significant additional time spent shopping while navigating inaccessible displays, finding sales help, or picking up after they accidently overturn displays; and significant additional time and transportation costs spent traveling to more accessible stores when nearby stores are inaccessible. Yet none of this appears in the analysis.
This is important not only in the absolute sense that these costs are unaccounted for. It is also significant because businesses that may complain -- during the comment process -- about the cost of certain proposed regulations are still avoiding other costs that are, in turn, imposed on people with disabilities.