Final Comments on Advance Notices of Proposed Rulemaking (ANPRMs)

Disability Rights Education and Defense Fund (DREDF)
Comments on U.S. Department of Justice (DOJ)
Advance Notice of Proposed Rulemaking, Titles II and III
of the Americans with Disabilities Act (ADA)

CRT Docket No. 113
RIN 1190-AA64

TABLE OF CONTENTS

Overview / Introduction to Comments
Medical Equipment and Furniture
Exercise Equipment and Furniture
Accessible Golf Cars
Beds In Accessible Guest Rooms and Sleeping Rooms
Beds In Nursing Homes and Other Care Facilities
Electronic and Information Technology
Other Types of Equipment and Furniture

1. Merchandise in Public Accommodations
2. Voting Equipment
3. Other Types of Equipment and Furniture In Medical Settings

Endnotes

DREDF welcomes the opportunity to provide detailed, targeted responses to the questions posed by the Department in its four recent Advance Notices of Proposed Rulemaking (ANPRMs) to amend regulations issued under the Americans with Disabilities Act (ADA), which cover: (1) Web site accessibility; (2) movie captioning and video description; (3) accessible features for Next Generation 9-1-1 (NG 9-1-1); and (4) accessible equipment and furniture. See 75 Fed. Reg. 43460, 75 Fed. Reg. 43467, 75 Fed. Reg. 43446, and 75 Fed. Reg. 43452 (all published on July 26, 2010). However, DREDF also offers this overall introductory comment, which emphasizes a more global perspective and analysis that we believe is generally applicable to all of the specific topics addressed by the pending advance notices.

DREDF commends the Department for appreciating that these topics would benefit from additional regulation. However, the Department should also take this opportunity to confirm and clarify that strong existing ADA nondiscrimination mandates already apply, and will continue to apply, to all of the circumstances that the Department proposes to address.[1]

In particular, DREDF urges the Department to recognize the potency of ADA full and equal access entitlements — including corollary entitlements to reasonable modification of policies, practices and procedures; effective communication; and structural accessibility, with their related defenses — in a myriad of circumstances not expressly anticipated by the Americans with Disabilities Act (ADA) at the time of its passage. Most specifically, DREDF urges the Department to confirm that these more general entitlements exist and endure irrespective of the existence or nonexistence of current or future ADA Standards for Accessible Design, Web Content Accessibility Guidelines (WCAG), or other potentially applicable rules or standards.

In some instances, such targeted standards have or will become the specifically designated or recognized method for implementing the more general entitlements (e.g., for achieving full and equal access or effective communication). But it is important for the Department to reaffirm and emphasize that the current or future absence of such targeted rules or standards does not render the ADA inapplicable to areas of concern not explicitly anticipated by the ADA, such as (but not limited to) the Internet; captioning and description in new media formats (e.g., online or streaming video); NG 9-1-1; and equipment or furniture, including items unimagined in 1990 (e.g. sophisticated “point of sale” devices and cutting-edge medical technology).

Moreover, the Department should underscore that even where there are no precisely relevant targeted standards (now or in the future), more general ADA entitlements can require reference to and compliance with standards that govern analogous situations. Even when there is no architectural design provision directly on-point to a given situation, the ADA still requires thoughtful attention to available standards that will result in appropriate realization of the full and equal access mandate. Thus, for example, to the extent that is the ADA Standards for Accessible Design are deemed applicable to POS devices, a modern POS transaction is best analogized to the work surface and counter height requirements—not the more inaccessible “reach range” height requirements, which do not appropriately govern such nuanced interactions between people and technology.

Everysubject area in this ANPRM is of vital importance to the disability communityacrossthe United States. We urge the Department to move ahead witheach area of rulemakingindependently as it is able, and not allowtime delays in one area to hold up rulemaking onthe other issuesraised in this ANPRM, and in all of the ANPRMs issued by theDepartmentin July 2010.

Introduction and Overarching Issues

DREDF strongly agrees with the Department’s understanding that “[t]he provision of accessible equipment and furniture has always been required by the ADA and the Department’s implementing regulations under the program accessibility, reasonable modification, auxiliary aids and services, and barrier removal requirements.”[2] Regardless of when the Department issues medical equipment and furniture accessibility and scoping standards, and how the Department sets the timeline for the triggering of those standards, Title II and Title III entities are already obligated to provide full and equal access to healthcare services for people with disabilities, up to the point at which an entity qualifies for a relevant defense under the ADA. The passage of the Patient Protection and Affordable Care Act, and the enactment of Section 510 of the Rehabilitation Act of 1973, merely results in the placement of a more precise and standardized regulatory overlay on a general access obligation that has always existed given the degree to which American medical diagnoses, treatment and education heavily incorporate standardized equipment and new technologies.

At the same time, we recognize that equipment and furniture occupies a somewhat unique position among the universe of things for which the Access Board has typically provided detailed technical standards. As physical objects, equipment and furniture have proportions and characteristics that can be more or less accessible for people with various disabilities. Covered entities can be required to purchase equipment that has certain accessibility characteristics. The actual accessibility of equipment and furniture in practice, however, is highly interdependent on both the structural dimensions of the buildings and rooms in which they are housed, and the entity-specific policies, practices, and procedures (or lack thereof) that govern the item’s use.

For example, a medical exam table must have such inherent features as a certain minimum height, height-adjustability, sufficient cushioning, and retractable padded side arms to be accessible. A particular exam table may have these characteristics and still not be fully accessible unless it is placed in an exam room where enough clear floor space is consistently maintained to give a wheelchair user sufficient maneuvering room to enact independent transfers where possible, and permit the use of portable or track lifts. Furthermore, an accessible table in an adequately sized room will still not be practically accessible from the point of view of a person with a disability unless he or she knows that such a room is available and requests it, the provider has reliable scheduling policies and procedures in place for offering and booking the room and any other necessary equipment, and office staff are adequately trained in the use of the table and the provision of lift and staff transfer assistance.

In fine, medical equipment and furniture exists in the context of physicalstructures, but is demanded, tested, procured, operated, stored, moved, andscheduled for use in large part through a medical facility’s policies,practices, and procedures. This intersection of architectural, equipmentdesign, and policy elements means that the Department’s accessibilityrequirements for medical equipment and furniture must address all three ofthese elements.There is also a further element raised by the inaccessibletechnical interfaces and patient displays commonly used in medicalequipment. Covered entities are under an existing obligation to provideauxiliary aids and services where necessary to ensure effectivecommunication with people with disabilities, and this obligation includes aduty to acquire or modify equipment or devices.[3]The medical equipment and furniture regulations must touch on all theseelements, andthe Department must ensure that it does not dilute existingstandards applicable to any one of these elements.

With regard to policies, practices, and procedures, the Department should expressly clarify two points. First, health care entities of all sizes remain responsible for providing policy modifications to the point of fundamentally altering the nature of the activities and services offered as contemplated in Title II (28 CFR 35.130(b)(7)), or to the point of a fundamental alteration in the nature of the business as contemplated in Title III (28 CFR 36.302(a)). Second, a covered entity’s obligation to engage in policy modification does not end merely because the entity fulfills its equipment design obligations. For example, a dentist’s purchase of an accessible dental chair may fulfill her obligations with regard to accessible equipment, but if one of her patient’s has a condition that means he cannot independently transfer to the chair regardless of its accessible features, the dentist is still obligated to provide such policy modifications as assisting the patient to transfer, or examining the patient in his own wheelchair, up to the point where the modification would constitute a fundamental alteration of the dentist’s business. The provider’s policy modification obligations are distinct and remain regardless of the provider either meeting his accessible equipment obligations or having a defense to those obligations.

With regard to accessibility standards for equipment and furniture, the “Legal Foundation” section of the E&F ANPRM uses the example of a height-adjustable exam table to illustrate Title II and Title III’s application to equipment and furniture, and strongly suggests that the Department will use an “existing facilities standard” for medical equipment and furniture. That is, Title II entities will be required to provide accessible medical equipment so that health care services are “readily accessible . . .when viewed in its entirety” (28 CFR 35.150(a)), and Title III entities will be required to engage in “readily achievable” equipment design barrier removal (28 CFR 36.304). It follows that Title II entities will have a fundamental alteration or undue burden defense to their obligation to acquire an accessible item of medical equipment, while Title III entitles will have only a readily achievable standard to meet for the same piece of equipment (an examining table is the example used by the Department in both contexts).

Since accessible medical equipment and furniture is so closely linked to broader health care access, it makes some sense to treat equipment and furniture standards as a component of “program access” under Title II. This approach also encourages the kind of flexible innovation and creativity that can be so valuable in considering how to obtain needed diagnostic and treatment results when confronting equipment that does not yet meet accessibility standards. However, the close relationship between architectural elements and accessible equipment design does not mean the two things are the same. The Department must clarify that policy modification and the removal of equipment design barriers can be prioritized over architectural modification. Unlike architectural changes such as the structural alteration of existing facilities or the construction of new facilities under “program access,” equipment design barriers should not be addressed as a “last resort.”

In the case of Title III, it is unclear why a covered entity’s obligation to have accessible medical equipment and furniture is equated with that entity’s obligation to remove barriers in existing facilities. A careful balancing of urgent accessibility needs and the legitimate concerns of covered entities lie behind the development of the existing facility standard, and that balance does not necessarily apply wholesale to the unique situation of medical equipment and furniture. The de minimus readily achievable standard for Title III entities exists because Congress recognized that architectural barrier removal can be burdensome and expensive. This scenario may not hold true, or apply to the same degree, in equipment and furniture replacement and modification.

For example, an individual medical practice located in an existing facility may have only two examination rooms, each of which lacks sufficient clear floor space for the operation of a portable floor lift. Architectural barrier removal in this case, entailing the removal of walls or undertaking an addition or an expensive, time-consuming retrofit of the ceiling infrastructure for a ceiling track lift, may not be “readily achievable.” As a result, that provider need not purchase a portable floor or ceiling track lift. This analysis does not, however, naturally lead to the conclusion that the acquisition of any and all items of accessible equipment should fall within the less demanding standard of what is “readily achievable.” The purchase and use of a free-standing overhead lift in one of the exam rooms could avoid the need for structural change, and yet comprise an action that, while it may or may not be “easily accomplishable and able to be carried out without much difficulty or expense” (see 28 CFR 36.304), is still not unduly burdensome on the covered entity.

Furthermore, the readily achievable standard was designed to inherently strengthen over time as existing facilities were either altered or eventually overtaken by new construction, which are subject to the stronger “undue burden/fundamental alteration” standard and the “readily accessible to and usable by” standard, respectively. If medical equipment accessibility standards are to be tied to a readily achievable standard, then at the very least, that standard should also incorporate “triggering events” that would elevate the performance standard from “readily achievable” to undue burden/fundamental alteration. Facility alterations that update or retrofit provider offices, or the voluntary purchase of new equipment such as replacing old exam tables, or a move to a newly built facility, should trigger a switch from the “existing facilities” standard to the more demanding alteration or new construction standards. There is no reason to “freeze” medical equipment and furniture standards in existing construction standards. Ultimately the goal is to have fully accessible medical equipment and furniture in every health care facility so that people with disabilities and aging Americans can have the same access to medical services that is available to people without disabilities. This goal is intrinsically more achievable because equipment and furniture is easier to change than foundations and walls.

Returning to the above example of the Title III entity with two examination rooms, if the medical office were to freely undertake a renovation or addition, or decide to upgrade its current exam tables, these actions should automatically require the acquisition of accessible equipment and furniture unless doing so would constitute an undue burden or a fundamental alteration. Furthermore, even if the purchase of lifts or exam tables is found to be an undue burden or a fundamental alteration, the medical office is still under an obligation to undertake reasonable modifications of policies, practices and procedures such as maintaining staff training on transfer assistance and having such ancillary equipment as sliding boards and sheets available.

One other consideration for establishing higher accessibility standards for Title III entities is consistency. From the patient’s point of view, the need for accessible equipment remains the same whether the entity providing healthcare services is a county clinic/hospital or a private hospital or doctor’s office, but treating the acquisition of accessible medical equipment and furniture as if it is part of program accessibility for Title II entities, but akin to the removal of architectural barriers from an existing facility for Title III entities, results in the potential for the highly inconsistent availability of accessible equipment. Furthermore, if the US Department of Health and Human Services and other relevant federal entities choose to adopt medical equipment and furniture regulatory standards enacted under Section 510 of the Rehabilitation Act and those enacted by the Department under the ADA, as could easily be the case down the road, those departments are more likely to require a standard analogous to standards enacted under Title II rather than the public accommodations standards of Title III. The reach of federal funds through the Medicare and Medicaid programs, however, would potentially mean that the same health care entities that were originally subject to a lesser standard as a Title III ADA entity would be subject to a more demanding standard as a federally funded entity under Section 504. Public policy should minimize disincentives for providers joining Medicare and Medicaid programs, especially in light of the program expansions contemplated under the Affordable Care Act. Application of the higher standard from the beginning would help minimize the future impact of medical equipment and furniture standards under federally funded and/or federally conducted Rehabilitation act regulations.

It is also important to provide standards that are consistent with thetechnical and functional standards of Section 508, for the information andcommunication elements of medical equipment. As our recommendationsbelow indicate, all medical equipment that provides patient-facinginformation and communication features should be required to complywith communication accessibility standards, such as redundant audio,visual and tactile alert signals and patient-provider communication capacityduring exams (e.g., to indicate when patient should hold breath or regulatebreathing for radiological diagnostic equipment), accessible means tocommunicate with nurses and other staff from a hospital bed, andaccessible infusion pump controls and alarms.

The need for consistency and greater certainty therefore argue for regulating medical equipment and furniture more broadly under Title III’s general non-discrimination mandate at least in a manner analogous to Title II’s program accessibility requirement, rather than attempting to force medical equipment and furniture under an ill-fitting Title II “architectural barrier removal in existing facilities” analysis.

Both barrier removal and policy modification are rooted in the same requirement for full and equal access. If medical equipment and furniture is to be used to provide thorough examinations, accurate diagnosis, and effective treatment for people without disabilities, then that equipment and furniture must be made accessible to people with disabilities who are otherwise receiving medical care that is less effective and/or timely. The balance of risk to people with disabilities and the burden on covered entities calls for the effective, swift removal of equipment design barriers beyond that which would be achieved through the simple application of existing facility barrier removal standards.

1. The Department is considering adopting the Access Board’s standards for medical diagnostic equipment. What other types of medical equipment and furniture should the department include in its proposed regulation? What modifications to other types of medical equipment and furniture, including equipment and furniture used for treatment or other non-diagnostic purposes, such as hospital beds, should be included in the Department’s proposed regulations?

Introduction

We understand that the Access Board is developing regulatory standards for medical diagnostic equipment that the Department will consider adopting. We strongly recommend that examination tables and chairs of all types, and the lifts used to provide lift/transfer assistance on to those tables and chairs, be considered “medical diagnostic equipment” by the Access Board and also included in the Department’s proposed regulations. From the patient’s point of view, each category of item performs a distinct and necessary function to enable an individual with a disability to receive an effective examination in various contexts.

Furthermore, our experience is that tables and chairs in medical, dental, and ophthalmology/optometry settings are frequently used for successive or simultaneous diagnostic and treatment purposes, and even medical procedures are not necessarily easy to neatly characterize as diagnostic or treatment. Other types of equipment such as gurneys, lifts, and bathroom commodes are commonly used for both diagnosis and treatment since out/in-patient examinations and care both frequently require transfers and specimen collection. Ultimately, it makes little sense for providers or the department to parse out the degree to which a particular item of furniture or equipment is used for diagnosis or treatment. The Department’s regulations should simply apply broadly to medical equipment and furniture, regardless of whether the item is used for diagnosis or treatment procedures, and scoping requirements should ensure that facilities and offices have accessible tables, chairs, and other equipment available for both diagnostic and treatment purposes. There may be some specialized items with built in chairs that are used almost exclusively in a treatment context, but from the patient’s point of view there is little point to establishing accessibility standards for diagnostic purposes, but no standards for the equipment that is actually used to treat a newly-diagnosed medical condition.

Given the difficulties of equipment categorization described above, we are including comments under this question on items that we clearly consider “diagnostic” and that do not specifically fit in any other E&F ANPRM question. We support the Department providing regulatory requirements on accessibility for all of the medical furniture and equipment described below, even if some of the items are primarily associated with treatment.[4]

Examination Tables and Chairs

Specific types of this category of equipment are discussed in greater detail in the answer to Question #2 immediately below.

Correct weight measurement is critical for a variety of medical purposes, including tracking obesity, determining the risk of such medical conditions as cancer, high blood pressure, and depression, and determining correct prescription medication or anesthesia dosages. Ongoing monitoring of weight is also a vital component of health maintenance during pregnancy or while treating diabetes, cardiovascular disease, and other chronic conditions. Standard medical weight scales require a patient to stand on a small platform while a provider finds and notes the patient’s weight and height. Wheelchair users and other individuals who are unable to use standard weight scales because of activity limitations or mobility or balance issues have had providers ignore their need for accurate weight measurement, or have been given the humiliating “choice” to be weighed in an inappropriate setting such as on a laundry scale. Accessible weight scales that do not require a patient to have the independent capacity to stand, balance, and/or transfer on to a platform are now available in a wide variety of models and styles, and there is simply no justification for any facility or provider’s failure to take accurate weight measures for all patients with disabilities. Accessible scales are available that are integrated into other medical equipment (e.g., a patient lift, a hospital bed), or that allow a wheelchair user to independently access a surface for weight measurement on a stationary stand-alone device that is either wall-mounted (folding or non-folding) or on an in-ground platform. Portable platform scales are also available in folding and non-folding models.

People who have difficulty independently standing on a platform scale can also be accurately weighed through an independent or assisted transfer to a bed scale, or to a wheelchair which is then weighed on a platform scale. In the case of an assisted transfer, trained transfer assistance and lifts must be available. Facilities should also offer such ancillary devices as step-stools with rails, adjacent grab bars, and walker-type devices to aid patients with disabilities in getting on and off a step-up scale, and to increase a patient’s stability and safety while being weighed.

An accessible weight scale should have the following features:

• A wide platform that is sufficiently large to fit larger powered wheelchairs and scooters;
• Sturdy hand rails that are removable if necessary to maintain unimpeded wheelchair access to a platform of sufficient size;
• A weight capacity minimum of 500-800lbs+;
• A large and easy-to-red digital display that can be seen by the patient who is being weighed;
• A slip resistant platform with high-contrast edges.

As with all accessible medical equipment, provider staff must be trained in the availability, operation, and adaptable features of the available accessible weight scales, as well as in the availability of transfer equipment and transfer/lift assistance when needed by individuals who need to be weighed. Staff also cannot assume that a wheelchair user knows the weight of his or her wheelchair, and must provide transfer options to people if their wheelchairs need to be weighed separately.

Computerized Tomography (CT), Magnetic Resonance Imaging (MRI), x-ray, and mammography are important diagnostic tools that are commonly used to screen for numerous medical conditions. These technologies must be equally available to people with disabilities. Unfortunately, most of these technologies are designed so that individuals must assume a single specific posture, such as lying prone or independently standing upright, often for a considerable length of time. People who have balance, posture, endurance, muscle weakness or fatigue, and/or spasticity issues may be unable to use these technologies as designed without experiencing considerable or extreme discomfort that makes it impossible to either use the machine or achieve high quality images.

Each type of equipment interacts with the body in a somewhat different way, so each type of equipment will benefit from having specific technical recommendations. However, a number of general accessibility features can also be incorporated into all radiology diagnostic equipment as follows:

• Height-adjustable tables and chairs with a minimum height capacity of 17 to 19 inches from floor to top of
  cushion;
• Larger openings on CT and MRI machines, which enable a patient to be more comfortable overall and therefore lead to a more efficient exam;
• Padded side rails and guide rails for positioning assistance and comfort that can also be fully recessed so as not to interfere with patient transfers;
• Adjustable table widths for secure positioning and safety while on table;
• Higher weight capacities (e.g., 500-800+ pounds);
• Audio, visual and tactile alert signals and patient-provider communication capacity during exams (e.g., to indicate when patient should hold breath for CT machines or self-regulate breathing in MRI devices);
• The capacity for a patient undergoing imaging in an enclosed radiological imaging machine to continue using durable medical equipment or devices that are needed at all times (i.e., ventilators), either by providing space for the equipment itself or for tubing to go from the equipment to the person being examined;
• Development and use, wherever possible, of smaller, lightweight devices that are capable of being flexibly positioned so that proper imaging angles can be obtained through moving the device relative to the patient rather than forcing patients to maintain and assume difficult positions to conform to the device.

Radiological Diagnostic machines are among the most expensive pieces of equipment purchased by medical facilities. Covered entities may incur significant capital outlay switching from an inaccessible machine to one that provides better access. At the same time, the Department should keep in mind that many medical facilities and centers replace their radiological diagnostic equipment relatively frequently due to the rapid pace of technological and functional advancements in this equipment. The establishment of regulatory standards on accessibility in radiological diagnostic equipment will help put accessibility considerations on the agenda of research and design teams in the first place by increasing demand, and this in turn will broaden the choice and availability of universally designed, top quality and innovative devices for purchase by medical facilities and providers.

In this context, it is useful to note developments such as the CXDI series of digital X-ray devices developed by Canon. Each machine is completely portable and can be carried by hand like a laptop computer or even an I-Pad, and the series comprises variable surface sizes for taking digital x-rays of different body areas that can then be viewed on a computer screen soon after the imaging process is complete.[5] Other digital X-ray devices may be more traditionally mounted in a medical facility, but their design provides flexible positioning options. For example, Ziehm Imaging’s Exposcope x-ray devices are mounted on a C-arm bracket so that the imaging equipment can be rotated 45 degrees around a patient. While the development and advancement of such innovations may not be primarily driven by accessibility needs, the devices help meet at least some accessibility concerns. Rather than have accessibility needs addressed in a haphazard and serendipitous fashion, such that a new innovation may meet the needs of people with mobility impairments but fail to address the needs of people with visual impairments or spasticity, the Department should establish overall accessibility parameters for radiological diagnostic equipment in general, in addition to setting more device-specific technical requirements.

Drop-arm commode chairs enable individuals with mobility disabilities, independently or with some assistance, to use a toilet safely and with increased comfort. Portable shower benches perform the same function for shower use. Commodes and shower/transfer benches should include the following accessibility features:

• Height-adjustable legs;
• A padded seat and back to protect the user from skin breakdown;
• Height-adjustable arms, primarily to provide transfer assistance as they are unlikely to be tall enough to assist people with stability issues;
• Arms that drop down completely below the level of the seat or that are removable to facilitate lateral transfers used by some wheelchair users (i.e., it can be difficult or impossible for a patient with no lower extremity function to get over an arm that lies above the seat level, and any attempt to do so can cause or exacerbate skin injury);
• Shower/transfer benches should also have suction cups on the feet for increased stability during shower use.

One model of commode will not serve the needs of all patients, and currently there is no one model available on the market that combines all of the above features. However, there are models of commodes and shower/transfer benches that have at least some of the above features, and establishing the above as minimum accessibility standards will encourage the development and manufacture of more fully accessible products.

A well-designed, continuous network of grab bars placed along clinic and hospital hallways and walls, and in patient rooms along the pathway from bed to toilet to shower, is effective for many patients in providing stability and reducing falls. This standard would, for example, benefit infusion patients who need to use the restroom frequently due to increased hydration, but also experience fatigue and decreased energy due to the treatment.

Alternative and traditional medical treatments, such as acupuncture, chiropractic therapy, and massage, are gaining increased recognition from health plans and insurance companies as the medical establishment moves toward treating the “whole person.” “Alternative and Complementary Medicine Departments” are now seen on most major medical campuses. These departments treat patients through a variety of modalities, combining standard Western treatment such as radiation and surgery with traditional and alternative therapies. Based on the clinical treatment needs of patients, tables in these departments are typically manufactured and distributed by chiropractic or massage/retreat type manufacturers. If used in a “clinical” or standard medical facility or treatment context, these tables and chairs must be held to the same standards as the standard medical examination and treatments tables and chairs. That is, they must be height adjustable to a minimum 17 to19 inches, provide sufficient surface width and height to safely accommodate transfers and positioning of any individual with balance or movement control issues, and be useable with ancillary equipment such as supportive straps, cushions or rails. One simple way to provide ample width is to design tables that can be “locked together” side-by-side in a stable way to provide a safe and comfortably broad surface.

Examples of accessible CAM equipment currently available in the market include:

• Earthlite – Ellora Massage Table: Height adjustable from 17 to 36 inches above the floor to the top-of-cushion. The table is available in widths of 25 inches, 27 inches and 30 inches and has a 650 pound weight capacity.
• ProLuxe Valencia Massage and Spa Tables: Height adjustable from 18-34 inches above the floor to the top-of-cushion with a 550 pound weight capacity.

Hospital bassinets, cribs and incubation units in the newborn nursery, Newborn Intensive Care Unit, and/or in-patient children’s wards must be accessible to enable a mother with disabilities (or a provider with disabilities) to gain access to a newborn for various purposes such as breastfeeding, bonding, comfort, and caregiving. Usually there is no knee clearance allowing a wheelchair user approach closely enough to pick up or hold a child with both hands, and crib gates/doors cannot be let down without difficulty and considerable upper body strength. There are cribs available on the market that provide parents or caregivers with the ability to gain access to most of a crib’s interior. Research and development is needed to incorporate the following needed accessibility features in bassinets, cribs and incubation units for the medical market:

• Height-adjustable legs, or a variable pedestal base, that will provide knee clearance so that a wheelchair user may approach the bassinet/crib opening and fit beneath the infant’s sleeping or resting area;
• A bassinet/crib door or panel that as much as possible can be easily and independently removed from the exterior of the bassinet/crib.

Example of Accessible home crib:

• Fine Round Cribs: this crib is round, offering 360 visibility of a child within, and features removable leg extensions that can be used to elevate a crib, providing knee clearance so that a wheelchair used can approach the crib closely. There are double doors in the front of the crib that allow for access to 80% of the crib. See
  http://www.abledata.com/abledata.cfm?pageid=113582&orgid=184974.

2. The Access Board is expected to promulgate design standards for medical and dental diagnostic tables and chairs. Are there tables or chairs used for medical, dental, ophthalmology or optometry treatments, which are not typically used for diagnostic purposes, that would pose unique accessibility challenges? What modified features would make these tables or chairs accessible? What features would enhance patient stability and facilitate correct positioning?

Any discussion of accessibility standards for tables and chairs, whether used for examination or treatment purposes, must include consideration of how a room’s size and space interact with the use of medical equipment within. The finest and most accessible tables and chairs will quickly become inaccessible if placed in rooms that do not allow wheelchair users to maneuver or place themselves correctly in preparation for a transfer, and where employees do not know how the equipment operates. Many examination rooms are crowded with furniture such as large desks and bookshelves that cannot be moved easily or quickly, and could be replaced with lighter, smaller or differently fixed items that serve the same function. Clear usable space within examination, treatment and procedure rooms can be further maximized through a variety of portable, relatively inexpensive storage options.

Given the close relationship between examination and treatment purposes and procedures, already discussed in the introduction to Question #1 above, the following comments concern accessibility features and modifications needed in medical, dental, ophthalmology or optometry chairs and tables regardless of whether they are primarily associated with examination or treatment.

Examination Tables

Exam tables are widely used for examinations, procedures and treatment in primary care as well as many specialty areas such as Obstetrics and Gynecology, Physical Therapy, Oncology, Podiatry, Dermatology, and Urology. Thorough and proper examination cannot take place unless a patient is positioned safely, comfortably, and correctly, and providers are also able to adjust the table sufficiently to allow for visual and physical access to a patient as required. The exam table is the equipment portal for so many additional procedures as well as specialty referrals. When this primary step is inaccessible and performed badly as a result, patients with disabilities receive incomplete exams and delayed diagnoses, and experience increased reluctance to seek regular health maintenance and needed medical examinations.

Exam tables require the following features to be accessible:

• Height-adjustable to within 17 to 19 inches of the ground from the top of the cushion(ing);
• Cushioning thick enough to minimize the potential for causing or exacerbating pressure sores;
• Side grab bars that can be used for transfer assistance, and are also removable or can be fully recessed to not interfere with a wheelchair user’s lateral transfer.
• Easily adjustable, high-contrast drop-down side railings, safety straps, and pillows for stability and positioning support once on the table;
• The capacity to “mate” closely with a portable floor lift;
• Adequate clear floor space to enable independent lateral transfers from wheelchair users or the operation of lifts or staff lift/transfer assistance;
• Universally designed or adaptable call buttons and powered bed position and height controls that can be operated by persons with limited or no reach range, fine motor ability, and vision (e.g., high-contrast foot paddles);
• Extra-wide (e.g., 30+ inches) and high weight capacity (e.g., 500 to 800+ pounds);
• Sufficient length (balance problems can be exacerbated if a taller patient’s feet extend beyond the edge of the table);
• An elevated leg support system such as articulating knee crutches and/or stirrups with flexible degrees of freedom for proper positioning and support of the legs for a complete pelvic examination for women with disabilities.

Numerous sources, including the Institute of Medicine and the Surgeon-General, have noted the reality of the aging U.S. population and the resulting increased propensity for acquiring a disability or disabilities. American health care is unprepared for this in many ways, including such basic infrastructure as accessible medical equipment. Accessible, power-adjusted exam tables and readily available lift/transfer assistance equipment and training benefit not only patients with chronic or newly-acquired disabilities, but also aging providers through reducing the potential for workplace strain and injury and consequent lost productivity.

Exam tables with numerous accessibility features have become more common and less expensive in the market over the past few years. Well-known companies that produce accessible tables include Brewer Company, Midmark, Hausmann, and Keitzer.

Mammography Chairs

While it is often best for a person to continue to use her own wheelchair for a mammography scan, the ability to do so depends on whether the wheelchair arm is removable. If not, then the person needs to transfer to an accessible mammography chair with the following features:

• Adjustable seat height that lowers to a minimum height of 19 to 21 inches, with adjustments ideally powered rather than mechanically controlled;
• A seat depth (from hip to knees) that is adjustable;
• Reclining seat backs (for cases in which a person with disabilities needs to be in a supine position);
• Fold-away, swing-away, or removable foot rests (fixed bar-style footrests block access to a lateral transfer, and looped bars can entangle a person’s feet and should not be used);
• Removable or adjustable armrests to facilitate lateral transfers;
• Wheel locks and seat (lap) belts for patient stability, and chest belts for persons with limited or no independent trunk strength, as traditional mammography usually requires an upright position. (MRI mammography scanners do not require trunk strength as the individual is generally lying prone for the exam.)

An accessible mammography procedure also requires the following features, which strictly speaking, are not technical requirements for the “mammography chair” itself, but for the diagnostic mammography equipment and its connection with the chair:

• The imaging receptor should lower to a minimum height of 24 inches from the floor to the top side of the imaging receptor platform;
• Sufficient clear knee space from the stand to the front edge of the imaging receptor to enable wheelchair users to go into position for mammography without running into protruding imaging platforms or tube heads connected to the central stand;
• Ancillary position aids such as pillows, foam wedges of differing sizes, Velcro, non-latex tape, etc. Positioning aids can make a vital difference in achieving the stable appropriate position needed for good quality images;
• Comprehensive, periodically updated staff training in the accessibility features offered in mammogram equipment and the kinds of procedural and practice modifications that people with disabilities require for an effective mammogram.

Ophthalmology and Optometry Chairs and Tables

Early detection and treatment of eye and vision disorders are essential to minimizing vision loss and maintaining the functional abilities of people with and without disabilities. However, the close relationship between vision impairment and some pre-existing conditions such as spinal-cord injury, and between vision loss and aging, which in itself raises increased potential for developing a disability,[6] makes regular vision care particularly essential for people with disabilities and older Americans. More than two-thirds of adults who have vision impairments are over age 65, and the leading causes of vision impairment in the United States are age-related, including cataract, glaucoma, macular degeneration, and diabetic retinopathy. In addition, a 2005 study estimates that for the first time in history, one of every 100 older citizens of the United States is aging with a long-term disability such as spinal cord injury, cerebral palsy, multiple sclerosis, post-polio, or intellectual or developmental disabilities.[7] One example of the correlation between a pre-existing condition and vision loss is that as many as 20 percent of persons living with the effects of a spinal cord injury have adult-onset diabetes (as compared to 7.8 percent of the non-ambulatory impaired general population that has diabetes) and an even larger percentage may have diabetes, but are asymptomatic.[8]

80 percent of the sensory information relayed to the brain is visual in origin.[9] For those individuals accustomed to unimpaired or easily correctable vision, vision loss can have a significant and detrimental impact on the quality of life and on the capacity for self-care. Early diagnosis and timely treatment have been shown to prevent vision loss in more than 90 percent of patients, and clinical practice guidelines recommend an annual dilated eye examination for all people with diabetes, including those with ambulatory impairments.[10] At the same time, people with ambulatory impairments and balance and muscle-control issues, including many seniors, face numerous access issues when seeking the periodic comprehensive ocular examinations that are critical to their preventative health care. As is true in so many areas of health care, those persons most in need of preventative care and maintenance are the same individuals most at risk of not receiving that care. Common access issues faced by people with ambulatory impairments include:

• Being told by staff at ophthalmology and optometry practices and facilities that eye examination services are not accessible and will not be given unless the patient can independently transfer from their wheelchair onto the examination chair;
• Examination chairs that often are not height-adjustable to the degree that would enable independent transfer for many people with disabilities;
• A widespread lack of portable or track lift equipment in ophthalmology and optometry practices and facilities to provide lift or transfer assistance to examination chairs for persons using wheelchairs;
• Examination rooms with insufficient clear floor space to allow wheelchair users to maneuver, examination chair to be slid back or moved out of the way, or portable lifts to function, even if a lift were available;
• Examination chairs that are typically fixed to the floor and cannot be slid back or moved to permit a person in a wheelchair to be positioned in its place to access the refractive equipment on equipment stands;
• Refractive equipment fixed to a stationary ophthalmic equipment stand that cannot be moved or sufficiently lowered to examine patients in their wheelchairs or people of short stature. The general absence of any ancillary equipment or best practices to assist people with quadriplegia and other conditions affecting balance and the core muscle control needed to maintain the head and chin contact required for the use of slit-lamp and (air-puff) tonometry equipment.

As a result of the above physical and attitudinal barriers, people with disabilities who cannot independently transfer from their wheelchairs onto the examination chair and cannot access refractive equipment, receive no examination or a less comprehensive, manual eye examination.

Full and equal access to vision care services for people with disabilities requires ophthalmology and optometry treatment chairs, ophthalmology and optometry equipment stands, ophthalmology and optometry equipment tables, and dental examination chairs to have the following features:

• Ophthalmology and optometry treatment chairs must (i) be height-adjustable with a minimum height of 15 to 17 inches from the floor to the top of the seat to facilitate the independent transfer of persons with mobility disabilities who are able to either independently transfer or transfer with assistance; (ii) not have a pedestal base (including the flange) or non-removable foot rests that extend horizontally beyond the side or front edge of the chair so as to interfere with independent transfers from wheelchair users; and (iii) sufficiently moveable to permit a wheelchair user to choose to be examined in her wheelchair by positioning herself in the examination chair’s place;
• Ophthalmology and optometry equipment stands must be (i) sufficiently height adjustable to provide full use of the ophthalmology and optometry equipment on such stands to persons who choose to remain in their wheelchair and to persons of short stature; and (2) be sufficiently moveable to allow for examination of a person in a wheel chair in those cases where an examination chair cannot be moved;
• Ophthalmology and optometry equipment tables must (i) be height adjustable to provide the full use of ophthalmology and optometry equipment on such tables to persons who remain in their wheelchairs, and (ii) at least 3 feet of clearance below the table to permit a person in a wheelchair to closely approach such tables frontally in order to be examined with a minimum of “leaning forward.”

Considerable accessible ophthalmology and optometry equipment is currently available on the market, as well as equipment such as chair glide systems, mobile equipment stands, accessible screening tables, etc. to facilitate transfers to, and/or modify, existing inaccessible ophthalmology and optometry equipment.

Dental Chairs

The need for routine dental care, including preventative care and maintenance, oral surgery, and orthodonture, and the equipment access problems that people with disabilities face when seeking that care, are generally analogous to the situation outlined immediately above for ophthalmology and optometry care and chairs. However, patients most frequently receive dental care while seated in a chair that providers set at various angles of recline as required for specific procedures rather than in an upright position, as is commonly required in ophthalmology/optometry practice. As a result, dental chairs and equipment need the following distinct features to be accessible to people with disabilities:

• Ophthalmology, optometry, and dental treatment chairs must (i) be height-adjustable with a minimum height of 15 to 17 inches from the floor to the top of the seat to facilitate the independent transfer of persons with mobility disabilities who are able to either independently transfer or transfer with assistance; and include (ii) armrests that lift up and swing out of the way so they do not impede a transfer; (iii) a reclining feature that would enable a person’s knees to remain at a 90 degree angle to their body when seated and reclined at any angle to reduce the risk of the person with a disability sliding out of the chair; (iv) belts and other positioning aids for safety and stability when seated.
• Dental equipment and light stands must be sufficiently height adjustable and moveable to provide full use of the dental equipment to persons who can appropriately, and prefer to, remain in their wheelchair to receive dental services.

Birthing Chairs

A number of maternity wards and birthing centers offer the use of birthing chairs or couches in vaginal delivery rather than a hospital bed. These chairs require the same basic accessibility features noted for ophthalmology and dental chairs above. Namely, they must be:

• Height- adjustable with a minimum height of 15 to 17 to inches from the floor to the top of the seat to facilitate independent transfer of women with mobility disabilities;
• Armrests, and any leg or feet support apparatus, that lift up and swing out of the way or are removable so they do not impede a transfer;
• A reclining feature that enable a woman’s knees to remain at a 90 degree angle to their body when seated and reclined at any angle to reduce the risk of sliding during periods when the woman is lying down;
• Safety belts, including chest straps, and other positioning aids to provide stability during labor.

Infusion Recliners

Infusion recliners are chairs widely used, for example, by patients who are receiving Chemotherapy, donating blood, and being cared for in day surgery recovery areas. Sometimes patients must use reclining infusion chairs for up to twelve hours at a time, and may be weak both before and after treatment. This makes transferring into a standard reclining chair difficult, and sometimes impossible, without the assistance of multiple staff members, for whom the patient may have to wait a considerable time. While some of the infusion incliners currently on the market have a swing-away side for easier lateral transfers by wheelchair users, none of the chairs can be lowered to an accessible height (19 inches or less), or have an easy to-use leg lifting mechanism. Infusion chairs would require at least the following features to be accessible:

• Adjustable seat height that can be lowered to at least 17-19 inches from the floor to the highest point of the cushion;
• A swing-away side arm that facilitates lateral transfers; and a reclining back and cushioned patient leg support mechanism that can be easily used by people who do not have full body strength.

3 (a). What types of lifts are the safest, most efficient, and most cost effective lifts for transferring PWD in different medical or dental settings?

Battery-operated mechanical lifts are available in a variety of models. Moveable floor lifts and moveable and fixed ceiling lifts are in common use. Moveable floor lifts employ either electronic or hydraulic lifting mechanisms. Ceiling lifts require either installed overhead ceiling tracks or free-standing frames, which can be moved to serve specific needs, but which are not strictly portable. Some ceiling lifts themselves are portable, that is, they can be detached from the track, moved from room to room, and used wherever overhead track or free-standing frames are available. Certain overhead lifts are permanently installed on a specific length of track and cannot be moved from that track. These typically include an automatic charging device that activates when the lift “docks” with the device, thus ensuring that the batteries are regularly recharged.

Weight limits for floor lifts, and portable and fixed ceiling lifts are an important consideration and vary widely. Depending on cost, weight limits for floor lifts can range from 450 to 1000. Weight ranges for portable ceiling lifts can range from around 250 to 550 pounds. Permanently installed ceiling lifts afford weight ranges up to about 800 pounds, while at least one manufacturer offers such a lift with a weight capacity of 1100 pounds.

Portable ceiling lifts used with ceiling-mounted tracks require minimal space to operate effectively and either can be left in place or stored easily in a closet or drawer when not in use. However, portable ceiling lifts cannot be used unless installed track or free-standing frames are available. Free-standing frames can be moved to accommodate various needs, but much less easily than floor lifts, which offer the convenience and efficiency of potentially providing lift assistance in a variety of physical spaces.

Floor lifts can be moved from room to room and generally are less expensive than the combined cost of a ceiling lift and either track installation or a free-standing frame. However, they have the distinct disadvantage of being cumbersome to maneuver in small spaces such as physician or dental office examination rooms.

They require significant clear floor space when they are being used to transfer a person with a disability from a wheelchair either to an examination table or chair, or to diagnostic equipment such as a radiology table or MRI machine. For example, clear floor space is required for the lift to be positioned so a wheelchair user can be lifted from the chair and moved into proximity to the exam table or other diagnostic equipment. Space is also required under such equipment and devices in order to accommodate the “legs” of the lift, or so that access to the table or device can be accomplished from an orientation that ensures that the person can be lowered on to the surface safely and in the correct position. Such clear floor space often is either not available or is inadequate, especially in medical, dental and ophthalmology/optometry offices.

Storage of a floor lift also presents challenges in medical offices where space is at a premium. Thus, while the portable lift has specific advantages, its effectiveness must be evaluated in relation to the setting in which it will be used.

However, not every building, especially existing construction, has the infrastructure needed to support the installation of ceiling tracks.The potential structural retrofitting that may be required to enable the installation of ceiling tracks, or the additional room needed for the effective use of portable lifts, may involve considerable costs for some entities.

A portable ceiling lift and free-standing lift track affords an intermediate solution that does not require retrofitting and may address the need for clear floor space in many settings. Moreover, the free-standing lift track can be moved if required.

Either floor or track lifts can provide safe and efficient transfer and lift assistance provided that the following features of use are incorporated:

• Sufficient floor space for a wheelchair to maneuver, and clear space around the piece of equipment to which a person will be transferred, for the lift to operate, and for provider staff to assist with the use of the lift;
• The ability to “marry” or closely approach laterally and/or frontally (side approach and/or forward approach to) a variety of wheelchairs and other mobility devices on the one hand, and the chairs and tables used with diagnostic and treatment equipment on the other hand;
• The capacity to navigate safety straps and padded supports on accessible diagnostic and treatment equipment that help keep patients safe and stable while on the equipment;
• The capacity to be used in conjunction with the ongoing operation of such personal medical equipment as ventilators, feeding tubes and infusion pumps;
• High weight limits of at least 600 to 650 pounds.

One-time costs associated with any of these solutions must be seen in light of the costs of (i) lesser quality and delayed health care borne by persons with disabilities who do not receive needed lift and transfer assistance, (ii) the injuries and lost time suffered by both patients with disabilities and provider staff when non-mechanical transfer assistance is provided unsafely or by untrained staff, or in situations where lift options other than mechanical lifts are not available (e.g., for bariatric patients),[11] and (3) the personal litigation risks posed by both (i) and (ii). Employers at large and society must also bear the costs when the family members or friends of a person with disabilities are forced to take time off from employment because a provider unlawfully requires a patient with disabilities to provide her own lift assistants.

One of the most cost-effective ways to implement a requirement for lifts in hospitals and other health care facilities is to mandate the installation of the physical infrastructure and architectural elements needed for ceiling and floor lifts (e.g. ceiling infrastructure, adequate floor space in locations where lifts are likely to be used, storage) in all new hospital and health care facility construction, additions, or alterations that commence one year or more after the promulgation of final regulations on lifts. This requirement should apply at a minimum to all the accessible rooms that are required for the facility by the ADA Standards for Accessible Design, as well as for all Emergency Departments. As the Justice Department has frequently noted, it is less expensive to build in accessibility in the first place than to engage in retrofitting an existing structure after the fact. Covered entities would also have the benefit of a clear mandate that would enable them to plan for the purchase and use of accessible equipment ahead of time.

3 (b). Should the use of lifts or staff to lift patients be considered a substitute for providing independent access to medical equipment?

The use of lifts or staff to lift patients should not be considered a blanket substitute for providing independent access to medical equipment. Many individuals with disabilities are capable of effecting their own transfers to such equipment as exam tables, and are most comfortable and prefer doing so, provided that the equipment in question is adjustable in height to an appropriate minimum height of 17-19 inches. The fact that an entity has purchased and has lifts available should never excuse health care entities from purchasing adjustable-height examination or accessible diagnostic equipment, or act to discourage equipment manufacturers from designing independently accessible medical equipment. For example, a wheelchair user can receive some examinations of equal quality, such as a mammography or an ophthalmology exam, while remaining in her chair and may strongly prefer to do so. However, this option does not exist if the examination equipment is attached in a fixed position to an existing examination chair so that a transfer must take place. A health care entity should not be excused from ensuring independent access by providing examination equipment that can be separated from examination chairs only because the entity has a lift and/or staff provides lifting assistance. (The entity will continue to have its usual defenses under Title II and III for not providing independently accessible equipment.)

Moreover, some individuals with disabilities experience pain, spasms, or other discomfort when being transferred with a lift.Positioning a lift sling for someone who is seated can cause unnecessary pain or discomfort, or be more difficult than providing assistance with other transfer equipment when performed correctly by trained and experienced staff. Both mechanical and human lifts can, in turn, be far inferior to independent access to equipment wherever possible. Medical staff must respect the person’s own preference and knowledge about his or her transfer needs and capacity to gain independent access to specific medical equipment.

In individual cases and at particular times, when a person’s disability, weight, state of health, personal preferences, and or a combination of these factors point toward the need for transfer or lift assistance, or when the person explicitly requests it, independent access may not be needed. Otherwise, the use of lifts, just as with the use of human assistance and lift teams, should supplement and not supplant the provision of individually accessible medical equipment.

4 (a). If a hospital or medical provider uses staff to lift patients onto and off of medical equipment and furniture, should it be excused from the requirement to have lifts in any or all situations?

The use of staff to assist in patient lifts and transfers is acceptable in the following limited and unusual situations and only with the patient’s or legal guardian’s agreement:

• An entity meets its requirements for accessible equipment but that equipment is temporarily unavailable due to rare and unanticipated repair needs;
• The patient requires transfer assistance to a piece of equipment that is not yet designed for compatibility with the available lift (e.g., a bone density scanner where a built-in overhead component interferes with the use of an overhead lift, and a floor lift cannot be used because there is insufficient floor space under the machine to accommodate the “legs” of a floor lift);
• Children receiving health care services in the pediatric context who weigh less than 50 pounds and experience no other problems when manually lifted, as such transfers may occur also with children without disabilities.

Aside from such rare situations, the availability of manual lifting assistance should not be used as an excuse for not having mechanical lifts and height-adjustable medical equipment, because manual lifting alone carries too many inherent health and safety risks. Moreover, some individuals, such as persons with certain conditions such as neuromuscular impairments can sustain injuries from poorly executed staff lifting assistance. Even correctly executed assistance from well–trained staff can place uneven stress on the patient’s skin and body at the points of contact. Anxiety about badly executed transfers and resulting pain and injury can cause people with disabilities to avoid seeking needed health care and disease prevention services. People with disabilities can also be forced to wait until the one or two staff members who are trained and capable of providing lift assistance become available. On the other hand, people with disabilities cannot be expected to endure improper lift and transfer assistance from untrained staff who are immediately available. Either way, an individual who is often already partially undressed and may be experiencing ill health can suffer greater health risk and humiliation when forced to be dependent upon a “staff assistance/lift only” policy.

Finally, if staff lifting is commonly recognized as an acceptable substitute for the use of mechanical lifts, staff will also be subject to employer expectations concerning strength and lift capacity. This can make it difficult for a staff member with lifting capacity limitations to receive needed accommodations. The availability of mechanical lifts will enable employees with limitations to perform lifts with far less risk of injury.

Very narrowly interpreting the instances where human lift and transfer assistance are acceptable options for achieving access is entirely in keeping with how the U.S. Department of Health and Human Services (HHS) an the Department have historically viewed carrying. The U.S. Department of Health, Education and Welfare’s[12] Section 504 Policy Interpretation No. 4, 43 Fed. Reg. 36035 (August 14, 1978) categorically stated:

Carrying is an unacceptable method for achieving program accessibility for mobility impaired persons except in two cases. First, when program accessibility can be achieved only through structural changes, carrying may serve as an expedient until construction is completed. Second, carrying will be permitted in manifestly exceptional cases if carriers are formally instructed on the safest and least humiliating means of carrying and the service is provided in a reliable manner.

The Department of Justice explicitly referred to and incorporated the above interpretation in its Section-By-Section Analysis to ADA Title II Regulations, 28 C.F.R. 35.150(b)(b), 56 Fed. Reg. 35709, stating that “carrying an individual with a disability is considered an ineffective and therefore an unacceptable method for achieving program accessibility.” While these directives were originally made in the specific context of carrying when ramps were not available as a means of independent entry into a building, the fundamental idea that disability rights prioritizes independent access to activities, programs and services applies equally to the health care and equipment context.

4 (b). What types of training programs are available to provide information to medical staff on lifting and transferring patients with disabilities?

Yearly lifting and transferring competency training and refresher training for health care workers is critical. Many nurse education programs touch on lift and transfer assistance, though there is a need for such information to be more formally organized, presented, and institutionalized, with nursing students and new nurses given the opportunity to actually execute and practice transfer techniques with experienced nurses. The California Nursing Association offers transfer training classes and some hospitals provide regular competency training regarding lifting. Commercial, off-the-shelf training products are also available,[13] although most such training focuses on methods to avoid worker injury and do not focus on the needs and perspective of individuals who require lifting assistance. The implementation of lift team systems specifically trained to use the variety of equipment available is very helpful in large medical centers.

Considerable research and training has been done on the subject of “safe patient handling” from the viewpoint of minimizing the risk of injury for health care workers such as nurses and personal assistants. Both the U.S. Department of Veterans Affairs [14] and the U.S. Occupational Health and Safety Administration (OSHA)[15] have developed good guidelines on safe patient handling in different contexts. Safe patient handling standards and guidelines on topics ranging from mechanical lift use and storage and the room clearances needed for lift operation to proper equipment disinfection provide a good foundation for lift and transfer training, but for ADA purposes, such training must be supplemented by information on the person with a disability’s right to barrier removal and policy modification, the prioritization of independent access and integrated means of accommodation, and disability culture.

4 (c). What are particular situations, if any, where lifting by staff should not be allowed?

Lifting perhaps does not constitute a medical procedure in and of itself, but it remains physical contact in the health care context that requires patient consent. If a person with disabilities refuses an offer of lift or transfer assistance, staff cannot force or override the person’s wishes. Respect for the individual patient’s dignity and choice requires honoring the accessibility preferences of the consumer, and recognizing that competent people with disabilities know the transfer/lift assistance that will work best for them. We recommend that the Department not provide a finite list of circumstances where staff lifting should not be allowed, or detailed criteria under which providers cannot provide lifts, but instead endorse an approach that mandates providing a range of transfer/lift options to people with disabilities, including adjustable diagnostic equipment, mechanical lifts, and policies and procedures for providing a trained, safe-lifting team.[16] The Department should also emphasize that the individual’s choice of transfer/lift assistance should be honored except for rare circumstances, for example, where a bariatric patient expresses a strong desire for staff assistance/transfers that would place both the patient and staff members at risk of injury. In the event that a person with a disability’s expressed lift preference cannot be safely accommodated, the entity must have a policy and practice of documenting the circumstances and reasons for the refusal, and the record will be made available for the Department and public’s inspection upon request.

5 (a). What features, such as low bed heights, can best enhance the accessibility of hospital beds and gurneys?

Low bed heights are crucial for people with disabilities using hospital beds. Many people who use such mobility devices as canes and walkers, or who have frail joints or bones resulting from such conditions as osteoporosis or as a side effect of various medications or treatments, still prefer and are capable of getting in and out of bed largely independently, but cannot risk leaping up or jumping down from a bed that cannot be lowered or adjusted in height. This is also true for people of small stature, and for wheelchair users who employ a pivot transfer or use a sliding board. For those people who do need an assisted transfer, adjustable bed height will also facilitate transfers and lift assistance. Since the bed is adjustable, its ability to be lowered to within 15 inches from the ground to the top of the cushion will not impede the bed’s ability to serve taller individuals as well, with or without disabilities. Key accessibility features needed for hospital beds include:

• Height-adjustable to within 15 to17 inches of the ground from the top of the cushion;
• Easily adjustable, high-contrast drop-down side railings and pillows for stability and positioning support;
• Mattresses thick enough to minimize the potential for causing or exacerbating pressure sores;
• Clear vertical space under the bed to accommodate the “legs” of a portable floor lift;
• Adequate clear floor space to enable independent lateral transfers from wheelchair users or the operation of lifts or staff lift/transfer assistance;
• Universally designed or adaptable call buttons and motorized bed position and height controls that can be operated by persons with limited or no reach range, fine motor ability, and vision (e.g., high-contrast foot paddles, sip-and-puff controls).

Gurneys are frequently used for diagnostic and other medical procedures and should be included in the Access Board’s promulgation of design standards setting forth minimum technical criteria for accessible medical diagnostic equipment used in, or in conjunction with, provider offices, clinics, emergency rooms, hospitals, and other medical settings. For example, gurneys are typically used for ultrasound, electrocardiogram, catheter, and gastro-intestinal procedures, as well as for transferring patients within a medical facility or campus. Many hospitals and clinics prefer the use of gurneys because (i) patients can remain in one position and still be moved easily by staff for multiple procedures and/or tests, (ii) patients can receive tests and treatment and then recover on the same surface with less lifting/transfer assistance by staff and resulting strain on the patient, and (iii) fluids that can spill to the floor during clinical procedures and tests require ease and quickness of equipment movement for cleaning and sterility purposes. Since gurneys commonly are used for diagnostic procedures, the Department should mandate essentially the same accessibility features as needed in beds, with the following explicit additional requirements to clarify that a patient typically may use a gurney for less time than a hospital bed, but use for any length of time requires the following minimum features:

• Extra-wide (e.g., 40+ inches) and high weight capacity (e.g., 500-800+ pounds);
• Sufficient length (balance problems can be exacerbated if a taller patient’s feet extend beyond the edge of the table);
• Safety straps and padded side rails for positioning support and stability
• Capacity to elevate legs;
• Wheel locks.

The incorporation of accessibility features in gurneys used exclusively for surgical procedures or in hospital emergency rooms may appear to be unnecessary since staff members almost always perform transfers in those contexts. However, adjustable height features are still very useful during staff transfers. In addition, an individual with a disability can be required to spend an unexpected and considerable amount of time on a gurney while in the ER or after being prepared for surgery. Those individuals who are at risk of pressure sores and/or who require position and stability support while lying prone, as well as larger individuals or persons with balance issues, should be able to rest as comfortably and securely as possible whether they are undergoing a scheduled examination procedure or awaiting an emergency consultation or surgery.

5 (b). Are these features available in products that are currently available?

These features are available in products that are currently available, though they may not yet be collectively available in a single product. Hospital beds are commonly available that go to 15 inches from the floor to the top of the mattress. There are now hospital beds available that go even lower than the recommendation made here. See for example http://www.phc-online.com/Full_Electric_s/14514.htm (last visited December 24, 2010). Hospital beds are also available in semi-electric models, where the head and foot position is controlled by an electric hand control and a manual crank sets the bed height, and full-electric models, which have an additional motor that controls the bed height with an electronic hand control.

Gurneys commonly available on the market have tended to have a higher minimum height than hospital beds, and the move toward a thicker cushion of 5 to 6 inches, while welcome because it preserves patient skin integrity and comfort, has raised additional concerns since the cushion can increase the minimum adjustable height for transfer purposes. A typical minimum gurney height on the market is 20.5 inches from floor to platform (excluding the cushion). However, gurneys that lower beyond this point do exist. For example, Stryker’s Power-PRO XT is an emergency services gurney that goes to a minimum height of 14 inches, is adjustable in length, and has a weight capacity of 700 pounds.[17] This particular model is intended for use in emergency responder vehicles rather than in an ER or clinical context, but this and other similar models could be modified for such use (e.g., provided with wheel locks and additional ancillary positioning and support equipment) given the desirability of its other accessibility features.

6 (a). What technologies are currently available to increase the accessibility of infusion pumps?

Infusion pumps are used to distribute nutrients or such medications as hormones, pain relievers, or antibiotics through fluids that are delivered in controlled dosages as low as 0.1 mL/hour throughout the day. The infusion of fluids can occur through intravenous, subcutaneous, or epidural methods. The pumps commonly will be characterized as either large volume, associated with nutrient delivery, or small volume, associated with medications. Both large and small volume pumps can be designated as stationary or portable within a clinical setting. Ambulatory pumps designed for outpatient use tend to be more compact and are completely portable.

Infusion pumps can be programmed by patients, but in many cases the units are pre-programmed by a clinician. However, the programming often consists of merely setting a ceiling level of medication beyond which a patient cannot deliver higher dosages, so that the patient remains responsible for the pump’s delivery of correct dosages and for monitoring those dosages. Patients must therefore have the capacity to accurately input, monitor, and potentially correct an infusion pump’s dosing rates and volumes, even in pre-programmed systems, as over- and under-infusion can lead to serious problems for the patient. Regulations require that infusion pumps have alarms associated with errors in input or problems in delivery, but the alarms tend to be only auditory, with some also providing error indications through visual output on the display screen. Common problems that can occur with infusion pumps include data entry errors due to such problems as a misplaced decimal point, errors relating to volume or rate of flow that can arise from leaks or kinks in delivery tubing, and incorrect input of infusion begin and end times.[18]

Ambulatory infusion pumps enable an individual to administer needed nutrients or medications in the comfort, convenience, and privacy of one’s own home. This option must therefore be equally available to people with disabilities, which requires mandating the following features for effective and safe use by individuals with visual and motor control impairments:

• Universally designed controls and switches (e.g., levers and grips, or at least larger well-spaced buttons, instead of the typical arrangement of small close-set buttons on a flat screen that require considerable manual dexterity, precision, and /or finger strength for operation);
• High contrast colors and/or raised lettering on controls;
• Larger fonts on bigger display screens and/or auditory dosing information;
• The capacity to set auditory, visual and tactile (e.g., vibration) alerts.

Some newer infusion pumps can be controlled through a PDA or personal computer. This would be a useful option for inputting and monitoring infusion pumps if a person with a disability already uses an accessible PDA or personal computer, though the infusion pump itself should still have the capacity for providing multi-sensory alerts.

6 (b). What types of infusion pumps are partially or fully operated by patients in the normal course of treatment?

See answer to 6 (a).

7 (a). What are the greatest difficulties facing individuals with disabilities in accessing rehabilitative and exercise equipment and furniture in a therapeutic setting?

People with various disabilities face similar barriers to using rehabilitative and exercise equipment and furniture, regardless of the setting. In a therapeutic setting, individuals exercise to regain or maintain range of motion and strength after experiencing a primary or secondary impairment or injury. However, the main categories of activity offered in rehabilitation include stretching/flexibility exercises, strength training, and cardiovascular endurance training, which are the same main exercise activities offered in a non-therapeutic gym or fitness center.

Unfortunately, even in therapeutic settings these activities are usually offered on or through equipment that assumes users have a body type within “average” height and weight ranges, and such physical capacities as the use of the legs, the capacity to grip, unimpaired vision, and fine motor control. One product survey of cardiopulmonary equipment “found a lack of accessories and options that would better assist users with impairments. Removable seats, access to weights, ergonomic pins, cuffs, supports and safety devices have all been identified as desirable features for universal equipment, yet most of the products found have been targeted for the younger, unimpaired population.”[19]

There is a difference in operations between therapeutic settings and non-therapeutic settings. Exercise in a rehabilitation context is usually more closely supervised, and providers either control the machine settings and/or provide ready assistance with adjusting machine settings and transfers. However, while the goal of rehabilitation is usually recovery from a specific injury or health event such as a stroke, maintaining functional recovery inevitably requires the ongoing use of exercise equipment as part of one’s lifestyle. The therapeutic setting is the ideal place and time for individuals to gain access to barrier-free exercise equipment and to learn how to use such equipment as independently as possible in anticipation of a return to the community. Some of the main access barriers interfering with the goal of independent access to rehabilitation equipment are:

• A seat that is fixed in place and cannot be swung away or completely removed to enable wheelchair users to engage in an exercise activity without transferring to the exercise seat;
• Insufficient clear floor space around equipment to allow for independent transfer, or lift assisted transfer, from a wheelchair to a fixed exercise seat;
• Seats that are too narrow for needed stability, no safety strap options to assist persons with limited balance or core strength, insufficient padding to avoid causing or exacerbating pressure sores, and maximum weight capacities that are too low;
• Lack of modifications for individuals with limited mobility or grip, such as the ability to secure feet and hands to foot pedals and hand grips/handles;
• Performance and control setting monitors and displays that use a small font size and colors that are difficult to distinguish, and controls that lack tactile indications;
• Lack of access to on-screen information through audio output and tactile controls;
• Control settings and manual components such as weight pins and seat adjustments that are difficult to see and difficult to use without fine motor control and the ability to grasp;
• Lack of visual alerts and indications to supplement auditory alarms;
• Pools that lack an independently useable accessible entrance and/or an aquatic wheelchair, as well as a tactile strip around the pool perimeter for people with impaired vision to mark their location in proximity to the water;

7 (b). What equipment and furniture most effectively permits accessibility for different types of rehabilitative needs?

Many rehabilitation and exercise machines could be made more accessible and easier to use for people with disabilities and seniors with newly acquired health conditions through low cost adaptations such as the ones described below.[20]

• Velcro foot straps or clips to secure limbs or feet to pedals, and gloves, cuffs, or splints to augment grip strength on handles and avoid slippage;
• High-contrast, large-font labels on free exercise weights and universal weight sets;
• Large, open grips for weight pins that secure a desired weight setting on weight machines;
• High-contrast tape on the edges of all handrails, steps, and drop-offs to make the edges easier to see.

Additional design modifications such as control consoles that feature raised lettering, single-handed adjustment levers, weight machines that have lower starting weights and smaller incremental gains, and recumbent cardio machines with hand and feet components that can move together or separately also enhance accessibility for different rehabilitation needs. Such design modifications are also critical to accessible exercise equipment in non-therapeutic settings and is described in greater detail in the comment on Exercise Equipment, in the section on “Universal Design: Accessible Exercise Equipment is Available” in the answer to Question #12.

7 (c). Can different types of equipment meet different access needs of, for example, people with low-vision who need access to visual displays on equipment?

Universally designed exercise equipment, developed and manufactured by such innovative forums as the Inclusive Fitness Initiative (IFI) in England, is commercially available and combines multiple features that assist people with low-vision and/or limited manual dexterity or mobility. All IFI certified machines include such features as slower starting speeds on cardiovascular equipment and lower starting weights and weight increments for weight machines that would be particularly helpful in a rehabilitative context.

Further, all accessible exercise equipment must meet the Section 508 technical standards, which will guarantee access to on-screen information through audio output and tactile controls. This will make the exercise equipment accessible to people who are blind or have vision impairments.

Please see the comment on Exercise Equipment, in the section on “Universal Design: Accessible Exercise Equipment is Available” in the answer to Question #12.

7 (d). Are there differences between exercise equipment in therapeutic settings and exercise equipment in non-therapeutic settings (e.g., gym or fitness center)?

As noted above, accessibility barriers and solutions are essentially the same for exercise equipment in therapeutic and non-therapeutic settings. However, there are possibly other needed aspects in rehabilitation equipment that may result in a particular machine not being entirely interchangeable from one context to the other. Cardiovascular and strength-training equipment that is designed specifically for therapeutic use generally has smaller incremental weight and resistance increases than comparable machines built for recreational fitness. For example, a weight machine in the rehabilitation context should have weights that increase in increments as low as 1.25 pounds. This is a desirable feature for people who are methodically rebuilding strength after an injury or a newly-acquired health condition. However, the need for lower increments may limit the machine’s total weight capacity, thereby limiting the machine’s use in a non-therapeutic context for consumers with and without disabilities who are seeking a heavier work-out. Machines that combine the potential for very small weight or resistance increments and the full cumulative weight or resistance total desired in a general fitness market may either be difficult or less cost-effective to design and manufacture.

In sum, the lower total weight and resistance ranges possible in equipment that is especially designed for rehabilitation purposes reduces the risks of re-injury or strain for therapeutic users, but may make the machine less appropriate for the general fitness consumer. Facilities such as Veterans’ Administration hospitals who can serve veterans with and without mobility or vision disabilities, seeking therapeutic and non-therapeutic activity, often have a mix of both recreational and specialized rehabilitation equipment in light of the slightly different consumer needs fulfilled by each category of equipment. Notably, this difference has no impact on the common need for accessibility features and maximum independent access in both specially rehabilitative and general exercise equipment.

7 (e). What exercise equipment or machines are available to meet the needs of individuals with mobility impairments?

For particular models and types of accessible and universally designed strength and cardiovascular training equipment, please see the comments on Exercise Equipment, in the section on “Universal Design: Accessible Exercise Equipment is Available” in the answer to Question #12. Endorphin Rehabilitation and Fitness Solutions, at http://www.endorphin.net/ (last visited December 29, 2010), provides one example of accessible specialty exercise equipment for rehabilitative and therapeutic settings. The company produces cardiovascular and strength training machines with such features as rotating and removable seats, independent upper and lower limb workouts, height-adjustability on upper body cycle machines, and wall-mounted weights which will work for a wheelchair user. Endorphin has supplied some general fitness facilities such as YMCAs, but their exercise equipment has mainly been purchased by distributors for long term care facilities, hospitals, clinics, and rehabilitation centers.

8. What types of ancillary equipment are most effective in different types of medical or dental examination or treatment settings?

Many people with disabilities have difficulty assuming, and maintaining for any length of time, positions commonly required for various examination and treatment procedures (e.g., lying prone). Individuals who at risk of experiencing pain, loss of balance, and/or spasticity with transfers benefit from both procedural flexibility and an innovative willingness to accommodate on the part of health care providers and technicians, and the provision and informed use of adaptive ancillary equipment. Some of the most useful and common examples of such ancillary equipment include:

• Removable and adjustable padded head, arm, and foot/leg supports on examination and treatment chairs and tables that can be locked into place;

Examples include the UMF Patient Assist Armrest, which rotates 360 degrees and can be locked into place, though one problem with this armrest is that it cannot be fully recessed and therefore interferes with a wheelchair user’s lateral transfer even when the armrest is folded down. Another example is Articulating Knee Crutches, which provide stability and control to patients who cannot hold their legs in place by themselves. Midmark’s Ritter 222/223 Barrier-Free Power Examination Table and 623/623 Barrier-Free Power Examination Table offer the option of articulating knee crutches.

• Padded leg supports for exam and procedure tables to assist with stability and positioning safety and comfort;
• Padded side rails or panels on examination tables that can be easily raised, lowered, and locked into place to provide safety while waiting for an examination, and assistance with changing position during an exam;
• Sufficient cushioning on all resting surfaces to minimize the potential for causing and exacerbating pressure sores;
• Pillows and variously shaped foam wedges that can assist with positioning and stability;
• Slings and nursing pillows with padded holding straps to stabilize the pillow that a new mother or father could use to facilitate holding and attaching to their newborn;
• Velcro positioning straps for additional stability and safety while using exam tables and gurneys;
• Grab bars, positioned on walls adjacent to where examination tables are positioned and locked in place, that can provide assistance with both getting on and off tables and changing position while on the table;
• Sturdy transfer aids for staff-assisted lifts, including sliding boards and sheets, and gait-belts;
• Sturdy transfer aids for independent access, including two-step stools with railings and sit-to-stand assistance devices. Two-step stools provide increased safety and support for people with balance difficulties, weak lower extremities, and/or limited stair-climbing ability. For assistance reaching fixed height patient platforms that are taller than 30 inches, a heavy-duty two-step stool with railings on both sides should be provided.

9. Is there a need for separate standards for bariatric medical equipment and furniture in the Department’s equipment and furniture regulation? If so, what equipment and furniture are necessary to address the needs of patients with disabilities who are obese?

The ideal of universal design, as well as the principle of full inclusion, calls for the design of medical equipment and furniture that can meet the examination and treatment needs of all individuals, including those who are heavier. Most equipment and furniture that works for the bariatric population will work for all persons, and health care entities should be strongly encouraged to acquire equipment and furniture that not only meets the disability accessibility standards established by the Department, but also meets the following standards required by bariatric patients:

• A weight capacity of 500-800 pounds or greater;
• Wider examination and treatment tables and chairs, hospital beds, and commodes;
• Diagnostic and treatment equipment that will accommodate broader girths in trunk and limbs, such as lengthier blood pressure cuffs to permit proper measurement.

At the same time, a provider, clinic, or hospital department that specializes in bariatric patients must be capable of accommodating disability needs that may or may not typically accompany obesity. Such entities must also meet the accessibility and scoping standards (e.g., barrier removal, availability of ancillary equipment, provision of effective communicate aids and devices, policy modification, etc.) that are applicable to all facilities.

Examples of bariatric equipment and furniture include:

• UMF 4070 Power Exam Table, which can lower to a minimum height of 19 inches from the floor to the top of the cushion, and has a 600 pound weight capacity;
• Midmark 625 Barrier-Free Exam Table, which lowers to a minimum height of 18 inches from the floor to the top of the cushion, and has a 650 pound weight capacity;
• Midmark Bariatric Treatment Table, which lowers to a minimum height of 18 inches from the floor to the top of the cushion, and has a 800 pound weight capacity;
• Welner Enabled Legacy Examination Table, which lowers to a minimum height of 18 inches from the floor to the top of the cushion, has a width of 54 inches, and a 650 pound weight capacity.
• Pedestal toilets and sinks instead of wall-hung toilets and fixtures.

10. What are the key criteria for scoping in different types of medical settings? What are appropriate scoping requirements for each of the types of medical equipment and furniture discussed above?

Our scoping and triggering recommendations below cover the need for regulatory standards on accessible medical equipment and furniture in a full range of health care facilities. The Department has issued regulations on scoping for architecturally accessible patient and resident rooms in medical facilities where the stay exceeds 24 hours (2010 ADA Standards, 223 and 805). These existing regulations are clearly pertinent to medical equipment regulations, given the relationship between equipment and architecture already discussed in the general introduction to the medical equipment questions. However, the Department has not issued specific architectural scoping requirements for outpatient facilities. In that regard, our outpatient facility recommendations are based on two critical pieces of information that we would like to draw specifically to the Department’s attention.

First, outpatient health care services and nonhospital settings are extremely significant for people with and without disabilities. The National Ambulatory Medical Care Survey found that “[a]mbulatory medical care in physician offices is the largest and most widely used segment of the American health care system.”[21] In 2006, over 900 million visits to office-based physicians took place, and over 50 percent of these were made by patients who had one or more chronic conditions such as hypertension, arthritis, or depression. Outpatient physician services ranged from primary care to highly specialized surgical and medical consultations and care, and approximately four-fifths of these services took place in a range of physician offices such as private practices, urgent care centers, public health centers, family clinics, mental health centers, community health centers, and family practice plans. In addition, 83.4 percent of the visits surveyed were to practices “either owned by a physician or a group of physicians.”[22] As the National Council on Disability has noted, “[i]t is critical that offices involved in delivering ambulatory care be physically and programmatically accessible, given the wide-ranging types and amounts of services delivered in those offices and clinics.”[23]

Second, accessible medical equipment is profoundly absent from outpatient offices and clinics. The following information comes from a very recent study[24] that reviewed data from the on-site facility site reviews collected between 2006 and 2010 by 5 health plans serving California Medicaid enrollees in 10 counties. California’s Department of Health Services requires the facility site review (FSR), which is conducted when a primary care provider first joins a plan, and every 3 years thereafter. Through the influence of California’s disability advocates, these 5 plans chose to administer an optional 55 item add-on questionnaire, designed to assess disability access, in conjunction with the required FSR of their primary care provider sites.

The study used 2389 reviews from primarily urban sites. The primary care providers’ surveyed had specialties in general medicine, internal medicine, family practice, pediatrics, or obstetrics and gynecology. While the add-on tool included questions relating to various accessibility elements such as parking and restrooms, the critical elements for the purpose of this ANPRM pertain to examination equipment (i.e., exam tables and weight scales) and examination room space.

The findings on the availability of accessible equipment are stark. Across all primary care specialties and locations surveyed, 8.4 percent have an accessible exam table, and 3.6 percent have an accessible weight scale. Interestingly, accessible exam tables appear to be more common in rural areas: 17.9 percent of non-urban offices have an accessible exam table, while only 7.8 percent of urban offices have such a table. The percentage of practices that have an examination room with sufficient clear floor space for a person using a wheelchair to perform a 180 degree turn and no door that swings into the space is somewhat more encouraging: 89.6 percent in urban offices and 97.6 percent in rural offices. Across primary care specialties, general medicine practitioners consistently had the lowest rates of compliance with exam clear floor space requirements (88.6 percent), and the smallest percentages of accessible tables (8.4 percent) and accessible scales (2.2 percent). Obstetrics and Gynecology practitioners had somewhat greater amounts of compliance with exam clear floor space (96.6 percent), accessible tables (18.4 percent), and accessible scales (10.3 percent).

Note that these findings were made 16 to 20 years after the passage of the ADA. The surveys were administered in California, arguably a state that has a higher degree of architectural accessibility, greater awareness of accessibility needs, and a lengthier history of accessibility legislation than many other states. It would be surprising if the numbers are significantly better in terms of access in any other state. Also keep in mind that the “accessible equipment” being surveyed consisted only of exam tables and weight scales, two of the most basic tools used in medical care, both of which existed in readily available accessible versions at the time. The logical conclusion is that providers, even those who may be well-intentioned about providing accessibility, are disinclined to take concrete steps to provide access unless the required actions are clearly defined, explicitly regulated, and incentivized either through the stick of enforcement and/or the carrot of tax breaks or deductions.

America’s concern over steadily rising health care and insurance costs has led to an increasing focus on preventative care and health maintenance among health policy experts, medical experts, and all levels of government. More is being discovered and reported every day on how individuals, together with their health professionals, could better manage their health. Obviously it is important for people with disabilities to have access to accessible hospital rooms and long term care facilities, but it is equally or more important for people with disabilities to receive full and equal access to the timely outpatient care that will enable them to stay out of hospitals and remain in their communities. People with disabilities will be left behind and experience more and more health disparities if the nation’s health care infrastructure and provider cultural competence is not improved urgently and effectively. The following scoping and triggering recommendations are made with these goals in mind.

10 a). What are the key criteria for scoping in different types of medical settings?

The two most important criteria for scoping that apply to both inpatient and outpatient medical settings are the type of medical specialty being practiced, and the type of medical equipment/furniture being regulated.

Medical Specialty

The Department has already recognized the first criteria, medical specialty (or no specialty), as a critical element in its existing regulation of accessible patient rooms required in new construction and alteration of medical facilities where patients stay longer than 24 hours.[25] If a medical facility specializes “in the treatment of conditions that affect mobility,” then “100 percent of the patient sleeping rooms shall supply mobility features.”[26] Where a medical facility does not specialize in mobility-related conditions, it is required to have mobility features in at least ten percent of its patient rooms, but no fewer than one, in any event.[27] The Department’s newly revised regulations on new construction and alterations in medical care facilities, in both Title II and Title III, states that “medical care facilities that do not specialize in the treatment of conditions that affect mobility shall disperse the accessible patient bedrooms required by section 223.2.1 of the 2010 Standards in a manner that is proportionate by type of medical specialty.”[28]

The easily understood rationale for this is that if a practice primarily caters to people with or at risk of mobility impairments, then all of the practice’s patients have a clearly demonstrated need for accessible rooms. Even if a medical practice is more general in nature, the dispersion requirement is necessary because “[w]hen accessible rooms are not fully dispersed, a person with a disability is often placed in an accessible room in an area that is not medically appropriate for his or her condition, and is thus denied quick access to staff with expertise in that medical specialty and specialized equipment.”[29] The Department therefore recognizes that people with disabilities need accessible rooms across the full gamut of specialty practice areas, and “[a]ccessible rooms should be dispersed throughout all medical specialties, such as obstetrics, orthopedics, pediatrics, and cardiac care.”

Just as the Department has taken regulatory action to require a specific degree of architectural access for people with disabilities across all of a long term care facility’s departments, the Department should require specific degrees of medical equipment access across all of a medical facility’s departments/units and across all primary care and specialist outpatient offices and clinics. People with disabilities must have disability access across specialists and specialized equipment from providers who are also geographically and contractually accessible (e.g., who accept Medicare, Medicaid or the health coverage in question). However, it is not really possible to simply require an overall accessible equipment percentage figure for outpatient practices owned by physicians or physician groups since, unlike a medical facility or hospital, they do not fall under a common administrative umbrella.[30] As a result, each office or clinic must be required to meet its own medical equipment and furniture scoping obligations, though the Department could provide some leeway for how a clinic or practice fulfills this obligation (see response to 10(b)).

If an individual with a disability is “denied quick access to staff with expertise” when he is placed in an accessible facility room outside of the particular unit where he is receiving treatment, the situation is even worse for an individual who cannot receive fundamental health care services at the provider of his choice because there is no accessible equipment. For example, a pregnant wheelchair user decides upon a obstetrics-gynecological practitioner that she is comfortable with based upon the provider’s birthing philosophy and level of expertise, but the provider’s office lacks an accessible weight scale. The situation in this case is akin to the need in public transit to have every bus on a transit route accessible, and not simply a percentage of buses overall. A transit rider who will only have access to every second or third bus simply does not have full and equal access to the public transit service. Similarly, a person with a disability does not have full and equal access to medical services if basic accessible medical equipment is only available in certain outpatient offices, there is inadequate or no dispersion across specialty practice areas and geographic boundaries, and the burden lies on the person with a disability to figure out who does and does not have accessible equipment.

While the Department’s amended 2010 regulations require 10 to 100 percent accessible patient rooms in newly constructed and altered medical facilities, the lower limit of 10 percent should not comprise the lower scoping limit for accessible equipment and furniture in medical facilities or outpatient offices. Again, there is a clear distinction between the burden and expense associated with architectural alteration and the acquisition of equipment and furniture. Even more importantly, 10 percent very likely underestimates the need for accessible equipment across all types of medical facilities. Individuals with and without chronic impairments admitted to inpatient facilities are likely to have conditions that can at least temporarily affect mobility, balance, and/or muscle control. Outpatient services are needed by people with disabilities, people recovering from orthopedic injuries or surgery, seniors with joint paint or fatigue, heavier individuals, and other who will all benefit from accessible medical equipment. Accessible patient rooms in long-term medical facilities clearly must come with a full range of adjustable equipment such as beds, exam tables, weight scales, lifts, shower benches and commodes. These categories of equipment must at the same time be readily available for the use of other patients who because of personal choice, demand outstripping availability, or because architecturally accessible rooms are not readily achievable in existing facilities, are not occupying an accessible room but require accessible equipment for effective examination and treatment. The same reasoning holds true for outpatient office and examination rooms.

Type of Equipment

There are relevant distinctions within the broad category of medical equipment and furniture for scoping and triggering purposes. Certain equipment categories such as exam tables and chairs, weight scales, gurneys, hospital beds, commodes, and lifts (either portable or track) are essential to basic medical examination and treatment services. EIT items necessary for effective communication, such as nurse call buttons operable by those with limited manual strength or movement, audible information formats, and accessible healthcare computer kiosks, should also be considered basic since effective communication is fundamental in the medical context. For the most part, these categories of equipment are currently available in accessible versions, and are relatively inexpensive. Given the dearth of this equipment in the field, the urgent need, and the relative ease of acquisition, these categories should have higher scoping and more urgent triggering requirements that are not simply dependent upon the end of the item’s useful life or its replacement.

Another important point is that what comprises “basic” equipment under this factor may interact with the type of specialty. That is, some equipment such as exam tables, weight scales, and beds generally cut across all types of primary care and specialty practices. However, within a particular department or unit, such as a maternity ward, a birthing chair could be considered an item of “basic” equipment such that it should be subject to the scoping and triggering requirements applicable to the basic equipment category. Obviously a birthing chair is unlikely to be considered a basic item in an oncology department, but infusion pumps and infusion recliners could be subject to higher scoping and triggering requirements as basic equipment in an oncology department or outpatient laboratory. The Department should specify those pieces of specialty equipment that serve a basic function within different specialties.

Highly specialized and expensive radiological diagnostic equipment such as MRI machines are certainly needed, but accessibility features and design modifications on the equipment itself may not yet be commonly available or fully realized. In addition, these items of equipment are most analogous to architectural features because often they are costly to modify or replace, are highly regulated, and raise significant issues of interaction with the architectural environment because of their bulk of configuration. While accessibility features for these items are still urgently needed, they potentially could have lower scoping requirements, and triggering that is tied to the end of the equipment’s useful life, its voluntary replacement, or the purchase of new pieces of equipment. Moreover, the lift equipment and staff assisted transfer policies that enable this equipment to be used by people with disabilities even when the equipment lacks inherent accessibility design features should still be subject to higher scoping and triggering requirements.

Some of the additional equipment categories needed in the medical context, such as waiting room furniture, sanitizer dispensers and vending machines, in-patient sleeper chairs, and emergency evacuation equipment, needs to be accessible, but is not quite so centrally critical to the receipt of equal and effective medical care. Some of these equipment categories simply require more effective and consistent monitoring and enforcement of existing applicable regulations (i.e., reach range for sanitizer dispensers and vending machines). Others, such as in-patient sleeper chairs, are important because they reinforce the need for companion accessibility in the medical setting, and acknowledge the reality that spouses, parents, and other family members and friends can also be people with disabilities that must be accommodated in the medical setting. These equipment categories could have scoping and triggering requirements that are not as urgent as those set for basic categories of medical equipment and furniture.

10 b). What are appropriate scoping requirements for each of the types of medical equipment and furniture discussed above?

Our recommendations for scoping requirements for medical equipment and furniture are as follows:

• Inpatient facilities that specialize in the treatment of conditions that affect mobility[31] must have 100 percent accessible “basic”[32] medical equipment and furniture within 24 months of the date on which the regulations take effect.
• Inpatient facilities that do not specialize in the treatment of conditions that affect mobility must have 25 percent accessible “basic” medical equipment and furniture within 24 months of the date on which the regulations take effect, dispersed across all primary and medical specialty units in a manner that is proportionate by type of medical specialty.
• Inpatient facilities that specialize in the treatment of conditions that affect mobility must have must have sufficient items of accessible “basic” medical equipment to readily service every accessible patient bedroom in the facility within 12 months of the date on which the regulations take effect.
• Inpatient medical care facilities that are subject to 28 CFR 35.151(h) and 36.406(g), which takes effect March 15, 2011 and requires dispersion of 10% accessible patient bedrooms in a manner that is proportionate by type of medical specialty, must have sufficient items of accessible “basic” medical equipment to readily service every accessible patient bedroom within 12 months of the date on which the regulations take effect, dispersed across all primary and medical specialty units in a manner that is proportionate by type of medical specialty.
• Every outpatient health care facility, regardless of size or specialty function, should have a minimum of one fully accessible piece of equipment for “basic” medical equipment and furniture categories within 12 months of the date on which the regulations take effect, including one examination/procedure room with sufficient floor space for the wheelchair turning radius required by the ADA Standards for Accessible Design and the operation of portable floor-lifts (unless the room is equipped with a functional ceiling lift, or a portable free-standing overhead lift track that does not require installation).
• Where the purchase of one fully accessible piece of basic medical equipment does not comprise at least 25 percent of the equipment in that outpatient facility, the facility shall have up to 24 months to achieve 25 percent accessible “basic” medical equipment and furniture provided that:
  1. In the first four months, the facility develops both a transition plan with stated priorities for equipment replacement/modification over this time period, and interim accommodation plans for the period before the required items of accessible equipment and furniture are in place that include policies and procedures for training medical staff on providing lift assistance;
  2. Where the outpatient facility is part of a medical group, managed care organization, or other umbrella organization, the facility can fulfill this scoping requirement by establishing that it takes part in a working arrangement within the umbrella entity which will ensure that accessible equipment such as tables and portable lifts, accessible examination/procedure rooms, and/or shared lift teams, will be readily available for patient request and use to the same degree as they would be available upon independently meeting their 25 percent scoping obligation;
  3. If the facility is unable to fulfill its scoping obligations and has a defense under the regulations for doing so, the entity shall document the facts behind its defense, and the plan must still include the interim policies and procedures outlined in (i), and any administrative arrangements entered in (ii);
  4. These transition plans and administrative arrangements must be available for the Department’s and the public’s review upon request.
• Outpatient health care facilities that specialize in the treatment of conditions that affect mobility impairments will have up to 24 months to achieve at least 50 percent accessible “basic” medical equipment and furniture categories, including 50 percent accessible examination/procedure rooms with sufficient floor space for the wheelchair turning radius required by the ADA Standards for Accessible Design and the operation of portable floor-lifts (unless the room is equipped with a functional ceiling lift, or a portable free-standing two-track overhead lift that does not require installation). Examples of such specialty offices and clinics would include those serving patients who have mobility limitations due to age, weight, arthritis, stroke, pregnancy, orthopedic conditions, neurological conditions, and general weakness. The same conditions required of outpatient facilities subject to the 25 percent requirement above should apply here.
• Every medical facility, inpatient or outpatient, that has radiological diagnostic equipment must have at least one accessible piece of each type of equipment, and policies, practices and procedures in place regarding the offer, availability, and scheduling of trained transfer/lift assistance for the use of all radiological diagnostic equipment. Where an outpatient facility subject to this requirement is part of a medical group, managed care organization, or other umbrella organization, the facility can fulfill this scoping requirement by establishing that it takes part in a working arrangement within the umbrella entity which will ensure that an accessible piece of each type of equipment is readily available upon patient request and use to the same degree as it would be available upon the facility independently having the piece of accessible equipment.
• Inpatient and outpatient facilities that specialize in the treatment of conditions that affect communication and fine motor impairments must ensure that 50 percent of pieces of electronic and information technologies such as kiosks and staff call buttons are accessible, with features that will assist individuals with communication difficulties to effectively communicate in medical facilities, within 24 months of the date on which the regulations take effect. This accessible equipment must be present in all accessible patient rooms, and the remainder dispersed across all primary and medical specialty units in a manner that is proportionate by type of medical specialty.
• General inpatient and outpatient facilities must ensure that 25 percent of pieces of electronic and information technologies such as kiosks and staff call buttons, and pieces of equipment and furniture categories common in the medical context (e.g., waiting room furniture, sanitizer dispensers, in-patient sleeper chairs, emergency evacuation equipment) are accessible. Accessible EIT equipment must be present in all accessible patient rooms, and remaining EIT equipment and other accessible equipment and furniture common in the medical context, must be dispersed across all primary and medical specialty units in a manners that is proportionate by type of medical specialty.
• All new hospital and known health care facility construction, additions, or alterations that commence one year or more after the promulgation of final regulations on lifts must include the physical infrastructure and architectural elements needed for the operation of track and floor lifts (e.g. ceiling infrastructure, adequate floor and storage space). This requirement should apply at a minimum to all accessible patient rooms as well as emergency departments in hospitals and long-term care facilities, and to at least 50% of the anticipated examination/procedure rooms in planned outpatient facilities. Ceiling track infrastructure should be sufficient to enable lifts to be used between bed, shower and toilet.
• All medical facilities must include as part of the regular clinical scheduling or admissionprocess an explanation with examples of the patient’s right to accessible equipment andpolicy modification, and the opportunity to have their equipment or policy modification needsrecorded in their patient record by the facility. This procedural mandate is necessary for theeffective operation of the scoping and dispersion standards, sincethe ready availability ofwell-maintained accessible equipment is rendered mootif covered entities fail to informthepublicof the availability and uses of accessible equipment.It also follows that all facilitiesshould be required to effectively prioritize and reserve the use of accessible rooms andequipment for the use of people with disabilities for all scheduled appointments in a mannerthat supercedes other typical considerations (e.g., exam rooms assigned to particularproviders in an outpatient facility).The mandated explanation should provide patients notonly with information about the adjustable basic equipment available, but also notify them ofthe availability of ASL interpreters, alternative formats such as Braille and large print forgeneral health, billing and patient record information, and staff assistance with admissionprocedures and explanations in simple language.

One final scoping recommendation concerns medical equipment and furniture that is not yet in common use or is in development. As DREDF has indicated in other places, including our overall comment to the ANPRMs and in the general introduction to the medical equipment questions, we hold the strong opinion that any equipment, device, or medium commonly used in services offered to the general public, including something that is not explicitly mentioned in the law or regulations because it was developed or become ubiquitous after the ADA was enacted, is already subject to the accessibility requirements of the ADA. Nonetheless, the Department’s specific guidance and actual regulation on critical new technologies and equipment is often very helpful for the disability community and covered entities. We would welcome the Department’s general acknowledgement that medical equipment and furniture, including items which remain in research and development phases, is usually accessible if universal design principles are kept in mind. There may also be some larger covered entities that are following an equipment and capital replacement schedule which includes items which do not yet have a widely recognized fully accessible version, and could benefit from some guidance on the alternative equipment models currently available.

Some of this guidance could be accomplished through a straightforward list of list of fundamental dos and don’ts as follows:

• DON’T assume certain functional capacities, such as independent sitting or standing for periods of time; 20-20 vision, full range of motion, or upper body strength;
• DON’T build for a presumed “normal” body dimensions or weight;
• DON’T imbed chairs or tables into the design of a piece of medical equipment;
• DO anticipate the use of supports and stabilizing ancillary equipment such as removable railings, side arms and foot rests, and pillows;
• DO use larger tactile and high contrast grips, controls and labels;
• DO build in the capacity for adjusting to a wide range of heights, leg and arm lengths, and weights;
• DO use redundant signals and alarms that provide visual, audible, and tactile (e.g., vibratory) indications;
• DO provide for the ongoing use of durable medical equipment such as ventilators, feeding tubes, etc. during lengthy medical procedures involving equipment.

In conclusion, the above scoping provisions will not affect the operation of the defenses given to covered entities under the ADA. These defenses take into account the needs of medical facilities to consider the financial, architectural, and practical impact on their practices as they work to fulfill their obligations under federal disability law. The above requirements are designed to level the playing field and no longer leave practically all the risks of lower quality or inaccessible health care on people with disabilities, who historically have had to constantly call providers with inquiries about accessibility and advocate for themselves merely to get the basic examinations and medical treatment that non-disabled peers take for granted. Medical facilities and providers should at least educate themselves about the accessibility needs of patients with disabilities and the equipment options that exist, review their own policies and procedures, and engage in an assessment of their own ADA obligation to provide full and equal access to their services. These obligations have been in existence for over 20 years.

11. Triggering Events

11 a). How could medical providers time replacement or modification of equipment and furniture to ensure that individuals with disabilities receive equal access to healthcare without undue delay?

Given the urgent and widespread need for basic accessible medical equipment, the Department should mandate that every outpatient medical provider, across all general practice and specialist categories and sizes, have at least one accessible exam table, weight scale, and mechanical lift within one year of the date on which the regulations take effect. In addition, specialist facilities must have at least one accessible piece of every item of “basic” equipment for that particular specialty (e.g., a mammography machine for a mammography or breast cancer clinic, accessible infusion chairs for dialysis, radiology or other treatment clinics, MRIs for imaging laboratories) within the same one year timeframe. Newly constructed and altered general inpatient medical facilities must have sufficient accessible items of “basic” equipment to service every accessible patient bedroom, dispersed by type of medical specialty, within one year of the date on which the regulations take effect. This will at least provide an initial breadth of accessibility across the health care system that is absent at this point.

These limited amounts of accessible equipment in each basic equipment category, however, will not address the depth of accessibility needs in the disability community and the growing senior population. Inpatient and outpatient medical facilities, therefore, must acquire sufficient accessible medical equipment and furniture to meet specific scoping requirements (addressed in greater detail in 11(b) below) within two years after the date on which the regulations takes effect. If a covered entity voluntarily chooses to replace or alter any of its medical equipment or acquires additional items, then those pieces of equipment should be fully accessible. If a covered entity has a defense to its obligation to replace or acquire accessible equipment, for example, items of medical equipment that meet the accessibility standards are not yet available or have not yet received regulatory approval, then the entity should acquire equipment that fulfills as many universal design requirements as possible. We would like to emphasize that an accessible medical equipment and furniture regulation will have little or no impact on the availability and usability of medical equipment and furniture overall since accessible medical equipment is almost always fully useable by people without disabilities.

We highly recommend that the medical equipment and furniture regulations as a whole specify that all covered entities have an ongoing obligation to acquire accessible equipment and furniture.[33] Therefore, even if a particular facility may face current limits on its ability to acquire accessible equipment due to the current state of technological development, regulatory issues, product pricing, resources and entity size, and/or other factors, the facility may be obligated to replace and/or modify inaccessible equipment in future as those limitations resolve or diminish. We also strongly encourage the Department to establish clear standards for accessibility even for equipment that may not yet be readily available on the market, with the anticipation that such standards will increase demand for accessible medical equipment overall, and encourage technical innovators and medical engineers to incorporate universal design and accessibility considerations earlier rather than later in the process of medical equipment design and manufacture.

11 b). What types of triggering events are appropriate for different types of medical equipment and furniture?

DREDF recommends the following specific triggering events:

• New hospital and known health care facility construction, additions, and alterations that commence one year or more after the promulgation of final regulations on lifts will trigger a requirement for the physical infrastructure and architectural elements needed for the operation of track and floor lifts (e.g. ceiling infrastructure, adequate floor and storage space).
• The passage of one year after the effective date of medical equipment regulations will trigger a requirement for the ready availability and use of a minimum number of pieces of accessible basic medical equipment in all covered entities.
• The passage of two years after the effective date of medical equipment regulations will trigger a requirement for the ready availability and use of 25 percent, 50 percent, or 100 percent of accessible basic medical equipment in all covered entities depending on the type of facility.
• The passage of two years after the effective date of medical equipment regulations will trigger a requirement for at least one accessible piece of each type of radiological diagnostic equipment in any inpatient or outpatient medical facility that has such equipment, regardless of whether such equipment can be defined as “basic” medical equipment for that facility.
• The passage of one year after the effective date of medical equipment regulations will trigger a requirement for 25 percent or 50 percent of all electronic and information technologies such as kiosks and staff call buttons to have accessible features.
• Scoping and triggering requirements foradditional equipment andfurniture categories common in the medical context (e.g., waitingroom furniture, sanitizer dispensers, in-patient sleeper chairs) arefound in DREDF’s comments on Questions #21 C, “Other Types of Equipment and Furniture In Medical Settings.”
• Irrespective of the above triggering requirements, the voluntary replacement or alteration (i.e., refurbishment or modification, including any significant software update) of existing medical equipment or furniture, and the purchase of additional medical equipment or furniture, after the effective date of the medical equipment and furniture regulations will trigger a requirement for the newly acquired equipment to be accessible.

We also ask the Department to clarify that whenever an obligation to acquire accessible medical equipment and furniture is triggered, the covered entity will have a simultaneous programmatic obligation to develop publicly available policies, practices, and procedures on how the facility and its staff will provide notice of, schedule for use, train staff on operating, and store accessible equipment.

11 c). Should the Department require the purchase rather than the replacement of some accessible equipment and furniture at a certain point? Should the replacement of inaccessible medical equipment or furniture be triggered only by the end of the useful life of the equipment or furniture?

The replacement of inaccessible medical equipment or furniture should not be triggered only by the end of the useful life of the equipment or furniture. The functionality of certain types of equipment such as exam tables and some exam chairs does not inherently require “updating” in the same way as technologically dynamic scanning equipment such as mammography or MRI machines. As a result, frequently used exam tables and chairs may rarely reach the end of their functional life and may be the last pieces of equipment in an office to be replaced, despite their fundamental medical necessity. A regulation that requires acquisition of at least one piece or 10 percent of basic medical equipment within one year, and meeting scoping requirements of 25 percent, 50 percent, or 100 percent within 2 years, will insure that equipment that has an extended functional life will not remain wholly inaccessible in a medical facility for that extended life.

Given the layered scoping and triggering requirements for medical equipment and furniture acquisition outlined above, healthcare facilities should be required to develop a transition plan for achieving their required scoping obligations in a timely manner. The transition plan must state the covered entity’s priorities for categories of equipment replacement and/or new additions for the three years following the effective date of the regulation, within the broad parameters of the Department’s prioritization of “basic” medical equipment over other medical equipment and general equipment and furniture categories.[34] The plan must cover interim accommodation plans for the period before accessible equipment and furniture is in place, and include policies and procedures for training medical staff on providing lift assistance, and assessing the potential for sharing accessible equipment such as tables and portable lifts, and/or developing in-house or shared lift teams. If the covered entity defers or plans to defer fulfillment of its scoping requirements in the timeframe required by the regulation, the entity must provide its reasons for doing so and the interim goals and policy modifications that the entity will undertake in lieu of meeting its scoping requirements. The transition plan must be available for public and Department review upon request.

Please also see the answer to 11(a) above.

NOTE: Also see response to question 21 below, regarding other furniture and equipment in medical settings.

23. The Department seeks input regarding the impact the measures being contemplated by the Department with regard to accessible equipment and furniture will have on small entities if adopted by the Department. The Department encourages you to include any cost data on the potential economic impact on small entities with your response.

24. Are there alternatives that the Department can adopt, which were not previously discussed, that will alleviate the burden on small entities? Should there be different compliance requirements or timetables for small entities that take into account the resources available to small entities or should the Department adopt an exemption for certain or all small entities from coverage of the rule, in whole or in part. Please provide as much detail as possible in your response.

DREDF recognizes that regulatory requirements for acquiring accessible medical equipment, and ensuring sufficient notice of, maintenance, and training for the effective use of accessible equipment, will have a financial impact on covered entities. We would like to reiterate, however, that these are not new regulatory, requirements, per se, but are detailed technical clarifications of existing obligations that all medical facilities have had for at least two decades. Covered entities, both large and small, and people with disabilities alike benefit when the Department provides explicit appropriate standards to exemplify a covered entity’s obligations under the ADA.

The following information is also pertinent in considering the financial or administrative impact that the medical equipment regulations may have on small entities:

• Internal Revenue Service (IRS) provisions entitle all businesses to deduct the costs of all and any equipment they buy and use in their operations. Any covered business entity that is replacing medical equipment or purchasing new equipment may deduct the costs of the equipment, and purchasing accessible rather than inaccessible equipment is no exception; if the cost of accessible equipment is higher than inaccessible counterparts, then the deduction is also greater. The vast majority of adjustable and accessible medical equipment is perfectly useable, and often preferred, by people without disabilities, and those few items such as ancillary equipment that people without disabilities do not require are still deductible.
• The most coveted type of deduction, where the deduction can be converted to a tax credit that directly reduces the amount of tax due, is available to covered entities that meet the IRS’s definition of a small business (i.e., a business that has $1 million or less in gross receipts or a business that has fewer than 30 full-time employees in the past year). The disabled access credit (Internal Revenue Code 44), enacted shortly after the passage of the ADA in 1990 to offset costs that small businesses might incur to come into compliance with the federal law, gives small businesses a tax credit of 50 percent of the first $10,000 per year (above a $250 threshold) of “eligible access expenditures.” This will go some ways toward offsetting a small provider’s purchase of basic accessible medical equipment such as adjustable tables, accessible weight scales, and mechanical lifts.
• While not-for-profit entities cannot avail themselves of the disabled tax credit, the architectural and transportation barriers deduction (Internal Revenue Code 190), is arguably available where the alternative inaccessible equipment or furniture can be characterized as an architectural or transportation barrier for persons with disabilities or seniors.

DREDF does not support exempting small entities from the general compliance requirements and timetable of the medical equipment regulations because the lesser resources available to some small businesses are already fully accounted for in the carefully wrought balance of the undue burden, fundamental alteration, and readily achievable defenses available to covered entities. If the additional expense involved in purchasing accessible rather than inaccessible medical equipment and furniture, as required by the Department’s medical equipment regulation, constitutes an undue burden to a particular business, then the entity is not required at that time to make the required purchase or perform the requested action. The Department’s adoption of one generally applicable set of medical equipment regulations and timelines has the advantage of greater simplicity and predictability. Moreover, a uniformly applicable regulation places an appropriate burden on medical facilities of all sizes to assess their capacity to provide the equipment access, effective communication, and disability cultural awareness that is fundamentally linked to effective health care. The dearth of accessible healthcare in the U.S. today, despite repeated warnings on the implications of the status quo for an aging American population from such respected institutions as the Institute of Medicine and the U.S. Office of the Surgeon-General, calls for this assessment sooner rather than later.

In light of this, we recommend that the Department work cooperatively with the IRS to:

• clarify the application of the small business disabled access tax credit for the purchase of accessible medical equipment, irrespective of the item’s use by the general public, and to refresh knowledge of the disabled access tax credit and the ADA regulations relating to the acquisition of accessible medical equipment among IRS auditors and covered medical entities;
• simplify the process whereby not-for-profit entities could establish their eligibility to apply for and receive the architectural and transportation barriers deduction (Internal Revenue Code 190) and establish examples where the replacement or removal of inaccessible medical equipment or furniture can be characterized as an architectural or transportation barrier for persons with disabilities or seniors;
• provide and disseminate guidance to tax professionals and small business in particular on how accessible medical equipment costs can be accounted for the purposes of the Internal Revenue Code.

Introduction

The ADA already requires exercise equipment that is usable by people with disabilities in exercise facilities through, at a minimum, the ADA’s general non-discrimination requirements. Public and private entities that offer exercise equipment are required to engage in a considered process to provide usable equipment. The comments below are the provisions, reasons, and analysis we propose about how to regulate this existing requirement.

A typical exercise facility has dozens of pieces of equipment that require the use of the legs and are utilized by people who can get exercise from walking or running. However, exercise equipment is virtually never provided for people who can’t get exercise from walking or running and for whom exercise equipment may be essential to maintain their health and wellness. This discrimination against people with disabilities can have a severe negative impact upon their health, and excludes people with disabilities from engaging in an important social and recreational activity available to non-disabled people. Universally designed exercise equipment that can be used by people with and without disabilities is an essential right under the Americans with Disabilities Act. Therefore, we strongly support regulations specifically requiring accessible exercise equipment.

Covered Entities Do Not Currently Provide Accessible Exercise Equipment Thereby Denying Disabled Patrons the Health Benefits of Exercise

The U.S. has a variety of exercise facilities. There are 30,000 for-profit health clubs with 45.5 million members generating annual revenues of $19 billion.[35] There are an equal number of other exercise facilities including YMCAs; public recreation centers; public elementary, secondary, and post-secondary institutions; hotel fitness centers; and other establishments that offer exercise facilities.

Over 20 million adults have a mobility disability and either cannot walk or have difficulty walking.[36] Many sit all day, using a wheelchair or scooter. Other adults with disabilities use a walker, crutches, or cane and have limited mobility. For many, the only way to engage in physical activity is by using an exercise machine. These individuals have a variety of medical conditions and health-related issues that require regular exercise to improve their ability to live independently and maintain their health and function. Lack of movement increases the risk of cardiovascular disease, obesity, type 2 diabetes, deep vein thrombosis, and dependence on others for assisting with activities of daily living. Serious medical complications can often be avoided by engaging in a regular routine of cardiovascular and strength exercise that involves, when possible, the lower extremities. There are also social and other benefits to utilizing exercise facilities that are precluded when the facilities have no accessible exercise equipment.

Exercise facilities often provide between 40 and 100 cardiovascular machines. These include treadmills, ellipticals, stair climbers, rowers, upright bikes, recumbent bikes, spinning bikes, and dozens of different types of strength machines. Virtually all of the publicly available cardiovascular machines require use of the legs to propel the machine and thus are either unable to be used by people with a mobility impairment, or may be minimally usable by some individuals who have partial use of their lower extremities. People who are elderly often have extreme difficulty mounting or unmounting the machine, or difficulty initiating the motion due to high initial loads required to start the machine.

Exercise facilities also provide many kinds of strength training equipment. Strength training is particularly important for people who use wheelchairs or crutches since transfers from a wheelchair, pushing a wheelchair, or using crutches are repetitive motions that increase the risk of overuse injuries. Strengthening opposing muscle groups has been shown to protect certain joints, thereby reducing the risk of these repetitive stress injuries. However, most of this equipment either requires a person using a mobility device to transfer to a bench seat, which is often unsafe or difficult to do, or to stand to lower the bars containing the weight, which many mobility impaired individuals cannot do.

There are also eight million adults who are blind or have vision impairments.[37] Many and perhaps most of these individuals are also unable to use most of the cardiovascular and strength machines because they cannot read the displays. Although they are physically capable of a brisk walk or run, it is difficult, if not dangerous, for them to do so because of impaired vision. Many would prefer to use an exercise machine for cardiovascular activity.

For example, treadmills and ellipticals, the two most popular types of cardiovascular exercise equipment, have controls for speed and incline. It may be dangerous to use this equipment without being able to operate the controls. Although cardiovascular machines with raised iconography are available and can be used equally by the people with and without vision impairments, exercise facilities virtually never provide them.

In sum, the millions of Americans with mobility or vision impairments are unable to obtain the health benefits from some of our nation’s most popular forms of exercise due to the failure of exercise facilities to provide equipment they can use.

Question 12. What types of accessible exercise equipment and furniture are available on the commercial market? What types of equipment and furniture are already accessible to individuals with disabilities? Is independently operable equipment and furniture available for individuals who are blind or who have low vision, or who have manual dexterity issues.

Universal Design: Accessible Exercise Equipment is Available

The principle of universal design is to develop and manufacture facilities and equipment that can be used equally by all people to the greatest extent possible. Since 2001, the Inclusive Fitness Initiative (IFI) in England has been working with the fitness industry to create universal design standards. IFI is the first systematic attempt to develop universal design standards for exercise equipment.

In the U.S., ASTM (originally known as the American Society for Testing and Materials) promulgates design standards for exercise equipment. In 2008, a special ASTM committee was formed to draft Universal Design Fitness Equipment Guidelines for the U.S. The committee includes representatives from IFI, the major exercise equipment manufacturers, and the disability community. Issuing of these standards is expected by 2012.

One hundred exercise machines representing 15 major international manufacturers have been certified as meeting the IFI universal design standards. These machines include:

• Treadmills (9)
• Recumbent Cycles (9)
• Upright Cycles (7)
• Upper Body Ergometers (3)
• Rowing Machines (3)
• Cross Trainer/Elliptical Trainers (3)
• Upper Body Resistance (26)
• Lower Body Resistance (25)
• Multi-stations (11)
• Vibration Training (2)

All of the IFI certified machines have the following features to assist people who are blind or have vision impairments:

• Raised iconography on their consoles.
• Large buttons.
• Large text.
• Color contrasted levers and grips.
• Laser-cut numbering for seat adjustments.
• Treadmills have bright color contrast between the deck and the moving belt to allow users to differentiate between the moving and non-moving parts.
• Treadmills have multiple belt logos to ensure that one logo is always visible, so all users can recognize that the belt is moving.

All of the IFI certified machines have the following features to assist people with limited manual dexterity or mobility:

• Swing away seats that allow easy access for wheelchair users.
• Single-handed seat adjustment levers that can be used with either hand to accommodate those who have the use of only one hand.
• Weight machines have lower starting weights and low increments between weights.
• Weight machines with an overhead bar have a seat level handle to adjust the height of the bar, so that a person who cannot stand can use the machine.
• Treadmills have slower starting speeds.
• Treadmills have an emergency stop lanyard to provide safe stops for people with limited upper limb function.
• Ellipticals have a locking mechanism for foot pedals, providing stability for users when stepping on and off the equipment.
• Machines with pedals incorporate a fixed heel strap and adjustable toe strap for increased foot support.
• Recumbent machines have a step-through design so that a person with limited mobility can access the machine.

In addition to IFI certified machines, there are many exercise machines manufactured in the U.S. that have not applied for IFI certification but are nevertheless accessible to people with mobility impairments. These include both cardio machines and strength machines.

The strength machines include;

• FreeMotion Dual Cable Cross
• Vectra VX-FT
• TriActive Accessible Multi-Gym

The cardio machines include:

• SciFit Recumbent Stepper
• SciFit Recumbent Elliptical
• NuStep T5 –Recumbent
• BioStep Recumbent Elliptical
• KRANKcycle-upper body ergometer
• Technogym upper body ergometer

Many manufacturers offer accessories that assist people with disabilities in using exercise machines. These accessories include:

• Gloves that assist in gripping equipment for upper body exercises, for people who cannot control their hands.
• Bicycle pedal adapters that secure the foot to the bicycle pedal.
• Devices that stop the pedals on a recumbent machine to assist in getting the feet in the pedals.
• Seats for rowing machines.

The recumbent cardio machines listed above are particularly important for people with mobility impairments. These machines have pedals for feet and handles for arms. The arms and feet can move together or separately. Someone who does not have the use of their legs can use their arms to move the leg pedals. Such a machine not only provides cardiovascular benefits, it also helps decrease muscle loss in the legs and reduces the risk of edema (swelling), which can cause severe health problems such as deep vein thrombosis (blood clots) and bacterial infections.

In sum, there are numerous accessible exercise machines commercially available today. The problem is that very few of them are available in exercise facilities. When they do exist, they are generally found only in rehabilitation facilities, which are rarely, if ever, available to be used for regular fitness activities by people with disabilities. Moreover, for rehabilitation facilities to be the primary location for accessible exercise machines turns ordinary exercise into a medical activity for people with disabilities, and ignores the fact that people in the United States have many reasons for visiting the local gym, all of which should be available to the disability community.

Question 13(a) Should the Department require covered entities to provide accessible exercise equipment and furniture?

We strongly support specific requirements for covered entities to provide accessible exercise equipment and furniture for the following reasons:

• Since the vast majority of people with disabilities cannot afford home-based exercise equipment and very few fitness facilities today provide any accessible exercise equipment, millions of people with disabilities have no way of improving their health and wellness, and engaging in the social and other benefits of gym exercise.
• The failure of covered entities to provide readily available accessible exercise equipment is a clear violation of the ADA.

Question 13(b) How much of each type of equipment and furniture should be provided? Should the requirements for accessible equipment and furniture be the same for small and large exercise facilities, and if not, how should they differ?

Exercise facilities with 30 or more pieces of exercise equipment should be required to have the following:

New facilities (30 or more pieces of exercise equipment)

• A minimum of one piece of combination upper and lower extremity aerobic exercise equipment with universal design features (see definition below) that has a seat that can be removed to allow usage by a wheelchair user while seated in their wheelchair.
• A minimum of one treadmill with universal design features
• A minimum of one piece of upper extremity strength exercise equipment with universal design features that allows a person to do multiple exercises while seated in their wheelchair. This could either be a multi station machine or a dual pulley system that either has no seat or a removable seat.
• A minimum of one piece of upper extremity aerobic exercise equipment with universal design features that has a seat that can be removed to allow usage by a wheelchair user while seated in their wheelchair.
• Whenever there are three pieces of equipment in the same category, e.g. treadmill, cycle, elliptical, etc., one of the pieces must have universal design features.
• Accessories to enhance accessibility shall be provided.

Existing facilities (30 or more pieces of exercise equipment)

1. Items 1, 2 and 3 above.
2. Whenever new cardiovascular equipment is acquired, it shall have universal design features unless there is already one piece of equipment in that category with universal design features.
3. Accessories to enhance accessibility for existing machines shall be provided.

Exercise facilities with less than 30 pieces of exercise equipment should be required to have the following:

New facilities (less than 30 pieces of exercise equipment)

1. A minimum of one piece of combination upper and lower extremity aerobic exercise equipment with universal design features (see definition below) that has a seat that can be removed to allow usage by a wheelchair user while seated in their wheelchair.
2. A minimum of one piece of upper extremity strength exercise equipment with universal design features that allows a person to do multiple exercises while seated in their wheelchair. This could either be a multi station machine or a dual pulley system that either has no seat or a removable seat.
3. At least one of every category of cardiovascular exercise machine shall have universal design features.
4. Accessories to enhance accessibility shall be provided.

Existing facilities (less than 30 pieces of exercise equipment)

1. Comply with the requirements for a new facility to the extent it is readily achievable.
2. To the extent compliance with the requirements for a new facility is not readily achievable, whenever new cardiovascular equipment is acquired, it shall have universal design features unless there is already one piece of equipment in that category with universal design features.
3. Accessories to enhance accessibility for existing machines shall be provided.

“Universal design features” shall mean equipment that is either accredited by IFI or substantially complies with the IFI standards. Upon promulgation of the ASTM universal design standards, “universal design features” shall mean compliance with the ASTM standards.

All of these items are readily available. Moreover, the price differential between the same machine with or without universal design features is minimal.

Section 508

In addition, all accessible exercise equipment must meet the Section 508 technical standards, which will guarantee access to on-screen information through audio output and tactile controls. This will make the exercise equipment accessible to people who are blind or have vision impairments.

Conclusion

Regular physical activity can substantially reduce the risk of many diseases or medical conditions, and provides social and other benefits. However, the benefits of exercise are not available to many people with disabilities. More importantly, the lack of exercise can directly cause other disabling medical conditions such as obesity and type 2 diabetes.

The Healthy People 2010 report was published by the Department of Health and Human Services in 2000. It presented a comprehensive, nationwide health promotion and disease prevention agenda designed to serve as a roadmap for improving the health of all people in the United States during the first decade of the 21st century. It stated that one of the factors that adversely affects the health and well being of people with disabilities is “fitness centers may not be staffed or equipped for people with disabilities.” It further stated: “Compliance with the Americans with Disabilities Act (ADA) would help overcome some of these barriers.”[38] Then, Healthy People 2010 made the following recommendation.

For people with disabilities to have the opportunity for healthy lives, both physically and emotionally, programs and facilities that offer wellness and treatment services must be fully accessible. Effective enforcement of the Americans with Disabilities Act can improve services for people with disabilities and help prevent secondary disabilities.[39]

It has been 20 years since the passage of the ADA and 10 years since the above recommendation was made. More progress is needed to make exercise facilities usable by people with disabilities. It is time for the Department of Justice to issue regulations specifically requiring accessible exercise equipment so that millions of people with disabilities can engage in important health activities at an equivalent rate as the general population. Exercise in people with disabilities can help minimize reliance on other people to assist with activities of daily living, reduce health care costs associated with sedentary behavior, protect from secondary health conditions such as pain, fatigue, depression and weight gain (all of which exist at significantly higher rates among people with disabilities), and improve overall quality of life.[40]

Every subject area in this ANPRM is of vital importance to the disability community across the United States. We urge the Department tomove ahead with eacharea of rulemaking independently as it is able, and notallow time delays in onearea to hold up rulemaking on the other issues raisedin this ANPRM, and in all ofthe ANPRMs issued by the Department in July 2010.

The ADA already requires golf courses to provide accessible golf cars for use by people with disabilities through, at a minimum, its general non-discrimination requirements. Public and private entities that operate golf courses are required to engage in a considered process to provide accessible golf cars.

It should also be noted that the Department of Interior (DOI) has been designated by regulation as the federal agency with authority to interpret Title II access to golf courses. 28 CFR 35:190(b)(5) For over a decade, DOI has informed the public that a public golf course which provides golf cars on a rental basis must also make accessible golf cars available for rent, stating that the provisions of accessible golf cars is a required reasonable modification.

Also, the National Defense Authorization Act of 2007 contained a provision requiring the Department of Defense to report to Congress as to whether it was required to make its recreational facilities accessible to people with disabilities. The Defense Department then issued a Report to Congress acknowledging that it was required to do so, and stated that it would purchase or lease two accessible golf cars for each of its courses.[41]

The comments below are the provisions, reasons, and analysis we propose about how to regulate this current requirement.

Question 14(a). What is the most effective means of addressing the needs of golfers with mobility disabilities?

The most effective means of addressing the needs of golfers with mobility disabilities who need accessible golf cars, is for golf courses to provide accessible golf cars. According to the U.S. Census there are over 20 million persons who either can’t walk or have difficulty walking. Some of these individuals played golf before they became disabled, and desire to continue playing golf. Others who did not play golf before becoming disabled, desire to play golf for many reasons. In order to play, some people with mobility disabilities need to use an accessible golf car. Most people with disabilities who need accessible golf cars cannot play because the golf courses in their area do not provide an accessible golf car. Therefore, the most effective means of addressing these needs is a requirement that golf courses provide accessible golf cars.

Regulation is necessary to avoid piecemeal litigation.

There are 16,000 golf courses in the U.S. Nine thousand (9,000) of those are privately funded courses open to the public and covered by Title III of the ADA, 2,500 are publicly funded courses covered by Title II (often managed by Title III entities), and the balance are private. Less than 500 public courses have accessible golf cars. Thus, about 96% of golf courses are not accessible.[42]

In addition to the positions of the Departments of Interior and Defense about the requirements for accessible golf cars (see above), in 2008, a federal court concluded in a lawsuit involving Marriott golf courses, that golf courses were required to provide accessible golf cars.[43] Unfortunately, very few courses have done so. In fact, less than 100 accessible golf cars were sold to golf courses in the past two years.[44] In the absence of regulation, golfers with disabilities who need accessible golf cars will have no recourse but to pursue litigation, golf course by golf course, in order to achieve their rights under the ADA. This can be avoided by clear regulation.

Question 14(b). Are golf cars currently available that are readily adaptable for the addition of hand controls and swivel seats? If so, are those cars suitable for driving on greens?

Available adaptable golf cars

There are no standard golf cars currently available that are readily adaptable for the addition of hand controls and swivel seats.

There are three primary manufacturers of standard golf cars. None of them has attempted to adapt their cars with the addition of hand controls and swivel seats. Nor has there been any effort by an after-market manufacturer to adapt a standard golf car. Such an effort has several obstacles.

• The top and windshield must be removed in order for the golfer to take a full swing.
• A golf bag holder has to be placed in the front of the car.
• The driver’s side on a standard car is on the left. A right-handed golfer would need the swivel seat on the right side. For each shot, the golfer would need to transfer from the drivers seat to the swivel seat, not an easy task to do 100 times in a round.

Suitability for driving on greens

A standard golf car weighs more than an accessible golf car. Moreover, in an accessible golf car, the weight is evenly distributed with the batteries in the front while the standard golf car has most of the weight in the back. Experience has shown that accessible golf cars are suitable for driving on the greens. It is not clear whether a standard golf car would be suitable for driving on the greens.

Question 14(c). To what extent are accessible golf cars of all types stable, lightweight, and moderately priced?

Lightweight and no damage to course.

There are five accessible golf cars on the market today. They are all significantly lighter than regular golf cars. They have been used for at least ten years on some of the finest golf courses in the country, such as Pebble Beach and Cypress Point, without damage to the course.

Moderately priced.

Accessible golf cars range in price from $6000 to $10,000. Considering that the average golf course has revenues in excess of $1,250,000 annually, an accessible golf car that cost less than 1% of annual revenues is moderately priced.[45] In addition, the car generates revenue from the fee charged for its use and the greens fees from the golfer with a disability and any friends s/he brings to the course.

Stability

The stability of accessible golf cars is a legitimate concern. Regular golf cars have ANSI certified safety standards, which include tests of stability. There are no current safety standards for accessible golf cars. However, there have been two developments in this area. First, two of the accessible golf cars have been tested by the Human Engineering Research Laboratory at the University of Pittsburgh and have been found to pass the stability tests for regular golf cars. Second, Mobility Golf, a non-profit corporation, has been certified by ANSI as a standards developer and is currently leading an effort to develop safety standards for accessible golf cars. That process should be completed by the end of 2011.

Question 15. What are appropriate scoping requirements for accessible golf cars? Should the criteria used to determine scoping stem from factors including the number of golf course patrons, the number of golfing holes (e.g. nine, 18, or 27) at the facility, the number of inaccessible golf cars in use, or other criteria? Should each 18-hole course be required to provide a certain number of accessible golf cars?

Two cars per facility

Each golf facility, regardless of the number of holes or courses, should be able to provide two accessible golf cars. This will permit two golfers with disabilities to play the same course on the same day. It will also permit two disabled golfers to play together.

In order to minimize the cost to a small business of providing two accessible golf cars, we recommend that this requirement be phased in over a two-year period. This would enable the course owner to take advantage of the tax credit for each of the cars.

Standup Seat.

Several of the accessible golf cars have a seat that tilts so the golfer is supported by the seat and can swing a club from close to a normal golfing stance, often referred to as a standup seat.

The Department should require accessible golf cars to have a standup seat, because:

• Golf is played from a standing position and not a seated position
• At least 90% of potential golfers with disabilities are able to use a standup seat
• Seated golfers need to get specialized golf clubs with a different lie angle while those using a standup seat can use standard golf clubs
• An accessible golf car with a standup seat can accommodate both a seated golfer and a standing golfer
• Accessible golf cars with a standup seat are currently available from several manufacturers

Maintenance

Once golf courses have accessible golf cars, they will be subject to the ADA’s maintenance of accessible features requirements. DOJ should reiterate this point, so golf course managers understand the importance of maintenance.

Benefits of providing accessible golf cars

There are important intangible benefits to inclusion of people with disabilities into the sport of golf. Making golf accessible allows a person with a disability to play a mainstream sport, and provides him or her with the benefits of physical exercise. It also is a way of including people with disabilities in an important aspect of social interactions and with the consequent increase in self-esteem. Integrating golfers with disabilities allows them to participate in tournaments and attend golf outings as part of business development or employer-sponsored events. It breaks down stereotypes of people with disabilities as “different” or lacking in physical skill.

For many elderly golfers, golf is their primary form of social interaction. When they stop playing due to health reasons, they lose their connectedness to this community. For those seniors who quit playing because of a mobility impairment, the availability of a single rider car would permit them to continue their friendships and camaraderie.

Question 23. The Department seeks input regarding the impact the measures being contemplated by the Department with regard to accessible equipment and furniture will have on small entities if adopted by the Department. The Department encourages you to include any cost data on the potential economic impact on small entities with your response.

Question 24. Are there alternatives that the Department can adopt, which were not previously discussed, that will alleviate the burden on small entities? Should there be different compliance requirements or timetables for small entities that take into account the resources available to small entities or should the Department adopt an exemption for certain or all small entities from coverage of the rule, in whole or in part. Please provide as much detail as possible in your response.

There are a variety of ways that the financial impact can be mitigated for small entities, and, in some cases, for large entities as well.

• Golf cars are typically leased. The accessible golf car could be added to the master lease for the golf car fleet. This would result in a modest increase in the monthly lease payment rather than a capital outlay.
• If it was not possible to add the accessible golf car to the master lease, it could be separately leased. The monthly payment for a 5-year lease for a $10,000 accessible golf car is approximately $215 per month.
• A regular golf car accommodates two persons. However, every day, there are many occasions when only one golfer is using a golf car. A golf course with one or more accessible golf cars could reduce its golf car fleet by its number of accessible golf cars, using them when only one person needs a golf car.
• A small business tax credit is available, which reduces the cost by half and makes the accessible golf car comparable in price to a regular golf car. Most golf courses would qualify since they do not employ more than 30 full-time employees.

Implementation of theregulation

A new golf facility shallcomply with the regulation upon the initiation ofoperations.Existing facilities shall comply within12 months of the issuanceof the regulation provided it is readilyachievable.If implementation isnotreadily achievable within 12 months of the issuance of the regulation, the golffacility shall comply on the next occasion when 25% or more of its golf carfleet is either replaced or released.

Timing of the regulation.

Every subject area in this ANPRM is of vital importance to the disability community across the United States. We urge the Department tomove ahead with eacharea of rulemaking independently as it is able, and notallow time delays in onearea to hold up rulemaking on the other issues raisedin this ANPRM, and in all ofthe ANPRMs issued by the Department in July 2010.

Introduction

The ADA already requires beds that are usable by people with disabilities in accessible sleeping rooms through, at a minimum, its general non-discrimination requirements. Public and private entities that offer sleeping rooms are required to engage in a considered process to provide usable beds. The comments below are the provisions, reasons, and analysis we propose about how to regulate this existing requirement.

16 (a). Shouldthe Department develop a general standard that specifiesrequirements for bedswherever accessible sleeping accommodations are required?

We strongly support specific DOJ requirements for accessible beds. Beds that are too high have been a significant barrier for travelers with disabilities.

According to a JD Powers customer satisfaction survey that was conducted several years ago, one of the “must haves” in a lodging experience was a comfortable bed. In its eagerness to meet their customer’s desires, the lodging industry responded to this survey by installing new beds, and in some cases worked with bed manufacturers to develop their own branded premium beds. These new beds, ranging in heights from 25″-30″, are notably higher than the beds previously found in hotels, and in countless instances pose a significant barrier to people with mobility disabilities, including people with paralysis, polio, cerebral palsy, short stature and other disabilities. Due to the increased heights of these beds, rooms that were once considered accessible have become inaccessible. People who rely solely on their arms to transfer into bed may not have the strength to lift their entire body to the top of these mattresses. People with short stature have a limited height they can jump to access a bed. People with restricted movement in their joints may not have the flexibility to lift their legs onto a high bed. This bed height problem has become pervasive across the spectrum of lodging categories, from high-end luxury properties to budget properties. It is not uncommon that people with disabilities need to call multiple properties before they find one that will work for them. In some cases, they must travel with someone who can assist them into bed, or must even cancel their trip altogether.

As our population ages and as more people lose their mobility, it is imperative that the DOJ respond to this issue of increased bed heights.

16 (b). What are appropriatebed heights to ensure accessibility by individuals with mobilitydisabilitiesand should there be requirements for mattresses to ensure that the height ofthe mattress, even when compressed by the weight of a person sitting or layingdownon it, remains within a certain range? Are there existing standards thatthe Departmentshould look to for developing standards for beds in accessiblerooms?

The typical seat height of a wheelchair is 19″ above the floor, a dimension that was published in the ADA Accessibility Guidelines in 1991, >[46] and which can still be seen today in the common 19″ to 20″ seat height of popular models of wheelchairs.[47] Consequently, a bed that is substantially higher than 20 inches presents a problem for most wheelchair users.

We recommend as follows:

• Require beds in the accessible guestrooms to measure 20 to 23 inches high from the floor to the top of the mattress, whether or not it is compressed. This is based on a sampling of 50 different wheelchair heights by Access Compliance Services, as well as on the range of bed heights that were found in the first years after the ADA became effective, before bed heights increased so dramatically. In those early years, these lower bed heights did not appear to pose a problem.
• Require bed frames that can readily be removed, thus lowering the bed when requested by guests. This would likely mean that stationary box frames are not acceptable.
• Have adjustable legs, either as part of the existing frame, or various height bed risers that can be added to the frame (the latter currently exist on the market).
• Require at least one accessible room to be equipped with a ceiling transfer lift.
• While the least beneficial, at the very minimum, information about bed heights should be readily available on a property’s website, with the reservation department, and at the front desk.

Franchise Systems Inc., a leader in the lodging industry for marketing to travelers with disabilities, recognized early on that their implementation of a new bed initiative might cause problems for people with limited mobility. “We recognize the importance of comfort for all of our guests so we had to find a bed that would not compromise comfort for access,” says Roy. E. Flora, EVP & COO, U.S. Franchise Systems, Inc.

Working with bed manufacturers Sealy, Serta, and Simmons, Franchise Systems was able to design a low-profile box spring (5 1/2″) that offers both a high level of comfort while maintaining accessibility for people with mobility limitations. The California building code also requires at least a 7″ vertical clearance under the bed for lift access. Franchise Systems was able to achieve that standard as well and still have their beds measure no higher than 23-inches.

Some Hyatt Hotels report intentionally limiting the height of beds in their accessible guest rooms to 19 inches high.[48]

A safe and usable bed height of approximately 21″ can be achieved with standard brand stock products, without the need for customized sizes, and still use today’s popular thicker mattresses. For example:

• 7-1/2 inch high bed frame49]
• 2-inch high low-profile box spring[50]
• 12-inch high mattress[51]

16 (c). What is theoptimal clearance needed under a bed to accommodate amechanical lift?

Clearance Under The Bed

We recommend that DOJ adopt a provision that is consistent with California’s Title 24 accessibility requirements. Title 24 has a requirement for a seven-inch clearance under the bed. It is based on data gathered by Access Compliance Services in 2000 and updated in December 2010.[52]

Many beds are placed on stationary platforms (AKA stationary box frames). These stationary platforms not only limit access for lifts, they make it impossible to move the bed in any direction if someone should need to move it to create an accessible pathway to either side of the bed (often there isn’t the required 36-inch clear width maneuvering space along both sides of a bed). Therefore, we suggest that along with a required clearance underneath, that the bed be required to be moveable.

Maneuvering To The Bed

Operating a lifting device requires adequate space to steer the lift to a position alongside and parallel to the bed, as well as space to then turn the lift 90-degrees so that it is perpendicular to the bed with its support legs underneath the bed. Since the longest lifts are approximately the same 48-inch length as the ADA standards designate for a wheelchair space, applying maneuvering space requirements for wheelchairs would ensure adequate space for using a lift. For example, the original ADAAG at Section 9.2.2(1) already requires a 36-inch wide space alongside of the beds in transient lodging, as does the 2010 ADA standards at Section 806.2.3. And, both versions of the ADA standards require that in order to navigate a 90-degree turn, both legs of the turn must be 36-inches wide (See original standards at Section 4.3.3, and the 2010 standards at Section 403.5.1). Consequently, adequate space for using a lift could be provided by a 36-inch wide accessible route to alongside a bed or between two beds, that connects to a space under the bed that is 36-inch wide and at least 7-inches high. Requiring that the 7-inch high under-bed clearance to extend 30-inches deep would ensure that the mast of the lift could be brought all the way to the bed for safely picking up or placing an individual. Providing such an under-bed space that extends 30-inches deep can be achieved without conflicting with the common hotel practice of installing a mid-span support under wider beds, since the narrowest beds for which such support would be needed are 60-inch wide queen-size models. (Also see last endnote which includes related California code provision.)

16 (d). Should anysuch requirements apply to all accessibleguestrooms or sleeping rooms or only to apercentage of them?

Requiring all guestrooms to have the same bed height ignores the diverse needs of people with disabilities and people who are elderly. People that require someone to assist them into a bed often prefer a higher bed to minimize back strain for the assistant whereas people with llimited mobility who aren’t using outside assistance generally need a lower bed, per the specifications given above. Having the ability to safely and easily adjust the bed to individual requirements is the ideal; however, an alternative would be to offer a majority of rooms with low beds (21 to 24 inches, per above), and the remaining ones with unregulated beds which would be allowed to be the same as in non-accessible guest and sleeping rooms (i.e. higher). The majority of the accessible guestrooms or sleeping rooms should meet the lower standard, since bed heights were not a widespread problem prior to the newer, taller beds. If there is only one accessible room, it should be required to have a lower bed at 20 inches to 23 inches high.

16 (e). What time lineshould the Department establish for requiringaccessible beds in accessibleguest rooms and sleeping rooms and should such a timeline be phased in?

The lodging industry should have no more than one year to comply with any new bed height standards.

Every subject area in this ANPRM is of vital importance to the disability community across the United States. We urge the Department tomove ahead with eacharea of rulemaking independently as it is able, and notallow time delays in onearea to hold up rulemaking on the other issues raisedin this ANPRM, and in all ofthe ANPRMs issued by the Department in July 2010.

17. Should the standards be different for adjustable beds, such as hospital beds, and for fixed height beds? Should the Department treat beds in nursing homes in the same manner as beds in hospitals? Should the Department treat beds in nursing homes or hospitals in the same manner as it treats beds in places of lodging? Should all accessible rooms have adjustable beds?

We recommend that the Department apply the standards for accessible beds in hospital rooms and inpatient health care facilities to nursing homes and other long term care facilities that require similar levels of skilled nursing care. Beds in assisted living and other kinds of group living arrangements that may require licensure, but do not offer similar levels of skilled nursing care, at a minimum should be subject to the same accessibility and scoping standards as places of lodging (see comments on Beds in Accessible Guest Rooms and Sleeping Rooms).[53] As a basic rule for both categories of hospital beds and beds in places of lodging, accessible rooms should have beds that are capable of height adjustment and compatibility with portable lifts (i.e., below-bed clearance), even though the mechanism, minimum height, and range of adjustability may ultimately vary between the standards established in the two main categories.

The scoping requirements for beds in nursing homes should follow the same principle underlying the scoping of beds in inpatient medical facilities that specialize in the treatment of conditions that affect mobility or conditions that affect communication disabilities, given the likely high proportion of nursing home residents with mobility and/or communication disabilities. That is, nursing homes should be required to have 100 percent accessible “basic” medical equipment and furniture within 24 months of the date on which the regulations take effect, and sufficient items of accessible “basic” medical equipment to readily service every accessible patient bedroom in the facility within 12 months of the date on which the regulations take effect. The new acquisition of beds in nursing homes after the effective date of the medical equipment and furniture regulations, and before the 100 percent target date of 24 months, should trigger a requirement for the item(s) to be accessible.

DREDF also recommends that all accessible rooms in nursing homes, skilled nursing long term care facilities, and assisted living and other group living homes, be equipped with adjustable beds. An adjustable bed that conforms to the Department’s anticipated accessibility standards will not only facilitate independent transfers for those individuals who self-transfer, but also make assisted transfers needed for sanitary, recreational, and health maintenance reasons safer and easier for all parties involved. Obviously no person with a disability should be left for any period of time without the ability to transfer out of their beds for necessity and choice. If nursing homes, skilled nursing facilities and group/assisted living homes are required by either the Department’s current or updated 2010 ADA regulations to have only a certain percentage of their rooms accessible, all of those rooms should contain adjustable beds in the anticipation that demand for such rooms and beds could easily outpace supply when mobility impairments are so common in the nursing home context.

Electronic and Information Technology

Question 18: What are the challenges posed by the inaccessibility of EIT, including EIT kiosks, POS devices, and ITMs? Are there issues regarding other uses of EIT that the Department should consider adopting to ensure that EIT equipment is accessible?

The challenges posed by inaccessible EIT, including EIT kiosks, POS devices, and ITMs, vary depending on the type of technology, the intended purpose of the technology, the environment of use, and the type and severity of disability. Accessibility standards governing EIT need to be specific enough to provide consistency and performance-based enough to allow flexibility to accommodate emerging technology.

In general, the most common challenges posed by inaccessible EIT fall into 6 general categories:

• Access to people with mobility disabilities, including people who use wheelchairs
• Examples of barriers include:
• reach ranges for controls
• viewing angles of controls, displays or information
• heights of writing surfaces
• size, placement, slope and surface of path of travel and clear floor space

• Access to people with vision disabilities
• Examples of barriers include:
• touch screen interfaces without audio and tactile input options
• visual (on-screen or printed) information without audio, tactile, large print, or high contrast output options
• video information without audible description
• Biometric authorization, authentication, or identification mechanisms that depend on retina or iris
• input mechanisms that time out

• Access to people with manual dexterity disabilities
• Examples of barriers include:
• objects required for interaction (styli, credit card swipes, keypads, mobile devices) that are hard to retrieve, hold, position, manipulate, and stow
• Keypads and buttons (physical or on-screen) that are small or require precision to operate or don’t work with prosthetic devices
• Input mechanisms that time out

• Access to people with hearing disabilities
• Examples of barriers include:
• audio or video information that is not captioned or otherwise available in visual format
• audio information without volume control
• hearing aid interference

• Access to people with cognitive and learning disabilities
• Examples of barriers include:
• Content, authorization/authentication systems, and navigational controls that are complicated, lack simple cues, or use multiple media at the same time

• Access to people with other physical disabilities
• Examples of barriers include:
• Interactive mechanisms (such as facial recognition or body scanning) that assume a particular “standard” appearance, size, or posture (sitting versus standing)

The effects of inaccessible EIT are not limited to consumers of goods, information and services. Inaccessible EIT also poses significant barriers to employment of people with disabilities. Unless accessibility is built in and assistive technology is readily available, individuals with disabilities will be forced even further out of the labor force.

As EIT becomes more prevalent, it replaces human staff (as, for example, automatic parking payment machines are replacing parking attendants), leaving people with disabilities without access to flexible, on-demand, individualized assistance. Inaccessibility forces people with disabilities to give up their independence and, often, their private financial, health, or other personal information, to strangers in order to interact with machines. It is, therefore, imperative that EIT be as universally accessible, as consistent from device to device, as flexible/accommodating to the user, and as simple to understand as possible.

It is also important not to simply recognize and address the barriers that inaccessible EIT currently poses. The technology development cycle is much faster than the regulatory cycle, so it is important to be forward-looking to address, not only the EIT barriers currently on the table, but also those drawing board and beyond. The drivers for rapid adoption of these technologies include:

• Staff savings
• Increased customer satisfaction due to simpler, easier, and more entertaining transactions
• Integration with customer relationship databases for improved loyalty and increased opportunities to sell to the customer

These drivers will only accelerate over time, regardless of the specific technologies in play at any given moment. Comprehensive and efficient accessibility regulation will demand comprehensive but clear definitions of the covered EIT, and clear functional requirements for them. However, such new regulatory detail must be accompanied by explicit Department confirmation of the ways in which long-standing ADA requirements already apply to EIT.

As specified in the “general categories” of barriers above, EIT accessibility is certainly affected by the inherent features of EIT devices themselves (e.g., size and positioning of keypads or other buttons on the device, nature of visual display screens, and presence of styli and card swipe features). However, EIT access is also affected by the way these devices interact with, and function in, the myriad different environments in which they are used. Indeed, such contextual factors can be among the most decisive factors in creating or mitigating access barriers for people with certain types of disabilities. This is particularly true as to smaller , more portable EIT devices, which are affixed but adjustable, and which are affected by positioning and orientation decisions made by covered entities.

For example, there is a widespread retail industry practice of affixing POS devices beyond the practical reach range or view of many persons with disabilities (including persons who use wheelchairs, persons of short stature, or persons with manual dexterity impairments). Irrespective of any future regulatory or design standard specificity that might be brought to EIT issues, this practice reflects a two-fold misunderstanding of existing ADA obligations. First, retailers often rely on an improper reference to general reach range requirements, rather than referencing more appropriate existing technical requirements.[54] Second, retailers ignore the overarching full and equal access obligations that the ADA imposes on their POS decision-making.

It is true that former and current architectural design standards do not explicitly address many new forms of EIT, which were unavailable or unimagined in 1990 when the ADA was passed. However, the Department should underscore that even when there are no precisely relevant standards targeted at particular types of EIT (now or in the future), more general ADA analysis still applies. Among other things, this analysis can require identifying and complying with technical standards that govern analogous situations.

As to POS access, the proper analogy is not to reach range requirements. Reach range requirements comfortably govern a single, gross-motor-skills interaction with a basic operating mechanism — a transaction so elemental that it can be effectively accomplished by a person seated in a wheelchair who is engaging an operating mechanism that can be overhead and out of view.[55]

However, such requirements do not appropriately govern modern POS devices, which over the past two decades have evolved to permit or require increasingly nuanced interactions with customers. Modern POS transactions generally require customers to absorb and respond to information presented by the device (including specifying which of several possible credit or debit transactions is to be conducted, and authorizing or confirming various steps in the process); to input specific unique personal data (including confidential “PIN” information); and to execute a signature.

These kinds of interactive and fine-motor-skills tasks are much more appropriately analogized to the type of “manual work,” “light detailed work, such as writing” or “check writing” activities that are contemplated by the existing work surface and counter requirements of both the 1991 and the 2010 Standards. Notably, the height specifications for these requirements are significantly lower than the reach range height requirements.[56] Thus, to the extent that existing technical standards are referenced in determining POS positioning and orientation, the reference must be to counter and work space height requirements, with attention to the view angle considerations highlighted in existing Guidance.

Moreover, to the extent that existing standards are deemed inapplicable to current or future EIT devices (e.g., where no express or analogous requirements can be identified), other more general provisions of the ADA still apply, including policy modification, communication access and barrier removal obligations. Retailers thus have existing, ongoing obligations to reasonably modify their point-of-sale practices and protocols to ensure access for customers with disabilities; to provide auxiliary aids and services; to remove barriers where it is readily achievable; and to provide alternatives methods of access to pay points.

In addition to devoting more focused attention to specifically identified EIT access issues, the Department’s current regulatory process should confirm and clarify that covered entities have ongoing EIT access obligations to carefully choose and reference appropriate requirements of existing standards, and to meet general ADA full and equal access obligations.

Appendix A provides some examples of current and developing uses of EIT in various contexts.

19. What types of EIT would permit individuals with communication disabilities to most effectively communicate from an accessible hospital room, nursing home facility, guest or sleeping room? Should the Department regulate effective communication from such facilities? What are the costs associated with various types of EIT in such settings?

DREDF holds the opinion that federal law already mandates, and the Department already regulates, effective communication wherever required by people with various disabilities and in all contexts, including the use of EIT in medical facilities. Sections 36.303(b) (3), and part (3) of the Title II auxiliary aid and service definition in Section 35.104, already includes the “[a]cquisition or modification of equipment or devices” in the obligation of covered entities to provide auxiliary aids and services, and this language logically encompasses equipment or devices that feature accessible electronic and information technology. This interpretation was recently reinforced by the 2010 revisions to the Title II and III regulations, which added the phrase “accessible electronic and information technology” to the listed examples of auxiliary aids and services.[57]

Given the fundamental nature of effective communication in the health care context, DREDF recommends that the Department explicitly clarify that the incorporation of increasingly common EIT to enhance accessibility features in such existing communication devices as call buttons and telephones, and assuring accessibility in new EIT such as patient kiosks, is already required by the auxiliary aids and services requirements of Titles II and III. We also firmly hold that the undue burden/fundamental alteration standard that currently applies to the obligation of covered entities to provide effective communication should also apply to medical facilities across all types and sizes. EIT, whether housed in fixed or portable equipment, is another medium for communication but it is not another kind of barrier, and achieving EIT accessibility is no more inherently costly, time-consuming, or out of an entity’s control than achieving effective communication through a face-to-face interpreter or providing and receiving alternative formats such as Braille. Neither technological interfaces nor medical equipment design are inherently “structural” and permanent in the same way as architecture.

In addition, we urge the Department to take the position that the provision of effective communication through whatever medium can never be a “fundamental alteration” of medical services. As already noted, effective communication, and the informed consent that depends upon it, is legally, ethically, and practically fundamental to the provision of effective medical care. A covered entity may successfully establish that the use of EIT to provide effective communication in a particular factual situation is an undue burden and therefore not required, but the use of EIT to enhance accessibility in devices intended to provide communication cannot in itself fundamentally alter the medical care or communication service being provided.

Below are specific examples of EIT that have emerged in the medical context which could benefit from the Department’s release of clear technical and scoping requirements. The examples are not intended to be exhaustive. Please also note that the examples below are not necessarily distinguishing between devices that enhance communication directed toward a person with a disability from a provider and communication from a person with a disability, as communication ultimately is a two-way street. An individual patient or family member/companion, who has vision, hearing, or speech impairments, or difficulty grasping complex concepts, must receive effective communications from medical providers to respond and communicate in return.

Manual Call and Television Remote Controls

Nurse call buttons and television controls in accessible hospital rooms and other medical facilities require modification for those with limited or no speech or movement. Televisions in hospital rooms are not simply used for entertainment, but provide important information regarding the hospital’s operating procedures and layout, as well as recovery and health maintenance videos. Requests for assistance and television remotes could be controlled through such alternative techniques such as sip/puff devices, pillow buttons, and adapted switches. Adaptive large-button switches can be operated with a closed fist, and the large, soft, and smooth surface of a pillow switch makes it suitable for head or check activation.

Please also note that setting standards for these items still requires staff training and policies and procedures regarding EIT items. For example, nurse stations should take particular note when ever a patient has no or limited speech and indicate this next to the patient’s call light.

Electronic Patient or Visitor Kiosks

Please see Appendix A to Question 20.

Audible Information Formats

One option for providing typically written information for people (inpatient or outpatient) who need information in audio formats is the use of an outbound messaging system or interactive voice response system to communicate with patients in languages and formats they can understand. A variety of these products are available. Some examples and their web sites are listed below:

• DemandForce: www.demandforce.com;
• Televox: http://www.televox.com/healthcare/enterprise/;
• SecuReach Solution: www.secureachsystems.com;
• Vocada Inc./ Nuance Healthcare Solutions: http://www.nuance.com/healthcare/products/veriphy.asp; and
• Sesame Communications: www.sesamecommunications.com.

These different products have different features, but all of them enable individuals to gain access to orally delivered information over the phone. They allow callers to obtain data in a relatively anonymous way that also complies with the Health Information and Patient Privacy Act. Patients are given a pass code to access information such as: test results, care instructions, and appointment reminders through their phones. The provider or a designated staff member, sometimes with the assistance of an interpreter, dictates relevant information into the application via a microphone (many models conveniently use a computer’s USB port for the microphone connection).

In addition, some products:

• Allow patients to choose to receive messages by text, e-mail, land line or cell phone, pager or fax;
• Allow patients to confirm their appointment using a 2-way text message or e-mail;
• Call patients with a generic message informing them that a test result or other information has been dictated into the patient’s private voicemail box. When patients receive this message, they can call a toll-free number, input a pass code, and then listen to the message;
• Send reminders when messages are not retrieved;
• Send e-mail and voice messages to remind patients when they have not come in for tests that the healthcare provider has ordered.

Captioning on Public Televisions

All televisions in public areas should have the closed captioning activated. Since televisions in public areas (and likely patient rooms) in medical facilities are unlikely to date from before 1993,[58] this requirement will not even involve the replacement or acquisition of equipment or furniture, but is purely a policies and procedures issue that should be accomplished through staff training and public and staff instructional signage on the sets. All televisions in patient rooms should also have captions available, including the facility and educational health care information made available through the set.

Assistive Listening Devices

Assistive listening devices should be considered for use with patients who have hearing loss and who would benefit from being able to personally amplify the volume of a discussion. This technology helps protect the confidentiality of staff conversations with patients. As with all the EIT technologies, qualified professionals should train staff on the availability and use of assistive listening devices, and the public must be notified of equipment’s availability.

Videophones

This technology enables high quality interpreter services to be available in emergency contexts, and in locations or situations where qualified American Sign Language (ASL) interpreters are in short supply. Massachusetts General in Boston is an example of one facility that uses this technology for those very reasons, thereby providing patients with a variety of interpreting methods that are appropriate to different individual situations and patient preferences. The potential kinds of interpreting services available include:

• Portable videophones – enable inpatients to gain access to ASL interpretation from their bedsides;
• Permanently installed public videophones in locations that are accessible 24 hours a day, providing patients and family members/companions with access to ASL services;
• Interpreter Phone on a Pole (IPOP) – This is a mobile unit that allows patients in almost any department or off-site clinic in a scattered-site medical facility to receive immediate interpretation services in a wide variety of languages, including ASL;
• Video Medical Interpreting (VMI) Network – enables facilities, particularly widely scattered or rural hospitals or practices, to cooperatively participate and fund videophone services where a single facility may not have the resources to provide twenty-four hour in-person ASL translation.

Many of the above uses of technology were pioneered, and continue to be primarily considered, in a Limited English Proficiency (LEP) context. ASL services can be readily incorporated into an existing LEP system, or even serve as an impetus to refining and improving LEP translation within or among medical facilities since a dial-up language line is not an option for ASL interpretation. The Department’s clear regulatory direction on videophone scoping and quality in medical facilities will help elevate the profile of all translation needs and highlight the critical importance of staff training wherever translation is required. All medical facilities and offices should be required to include notification of the availability of ASL interpreters in existing language interpretation service signage. The Department should also clarify that the availability of the above technology in medical facilities does not obviate the facility’s obligation to provide in-person interpretation to ensure effective communication where required by the nature, length, and complexity of the communication, and consultation with individual patient (or family member/companion) concerning their preferences and needs.[59]

Question 20: What are appropriate scoping criteria for the availability of accessible EIT and triggering events for the replacement or refurbishing of EIT devices, including kiosks, ITMs and ATMs, to ensure accessibility?

Answer to Question 20:

Appropriate scoping criteria and triggering events for accessible EIT must provide the greatest possible access to goods, services, and information offered by Title II and III entities through the technology, while recognizing relevant ADA defenses that have provided adequate protection to covered entities for the past twenty years.

Hundreds of thousands of inaccessible kiosks and other EIT currently dot both the public sector and commercial landscape. EIT provides programs, services and information in the health, education, financial, retail, transportation, entertainment and government sectors. There is no escaping the fact that each day, more and more machines are doing what people used to do. In November 2010, for example, AARP reported that twenty-two states have emergency rooms equipped with (completely inaccessible) machines that dispense prescription medication. (For additional details about varying types of kiosks currently available, see http://lflegal.com/2010/07/self-service/ and response to Question 18.)

Robust and stringent scoping and triggering event requirements, as well as mandated technical and performance standards and clear definitions, are necessary so people with disabilities do not fall further and further behind in the 21st century technology environment. The following principles will ensure that people with disabilities are able as quickly as possible to access the myriad services, programs and information now provided by covered entities through EIT, including kiosks, ITMs and ATMs.

Definition of EIT, kiosks, ITMs and ATMs

The Department should ensure that its new regulations for EIT include a forward-looking definition that will embrace the myriad types of electronic and information technology currently being used, and that will be used, by Title II and III entities to provide programs, services and information covered by the ADA.

Technical and Performance Standards for EIT

The new regulations should reference the Section 508 technical standards. Industry, people with disabilities, and the public at large need a consistent standard for accessible EIT development, and applying the technical standards of Section 508 to EIT used by Title II and III entities to provide programs, services and information will provide that. (This is different than the new web standards, where Commenters recommend that WCAG 2.0 AA, and not Section 508, serve as the technical standard. Unlike web accessibility, there is no internationally sanctioned direct set of robust and flexible technical standards for EIT that the Department should point to).

The Department’s new rule should recognize that detailed technical standards already exist in Section 707 of the 2010 Standards for Accessible Design for Talking ATMs and Fare Machines. Developed as a result of a multi-year rigorous rule making process, the Talking ATM technical standards should not be tampered with (although we do recommend below a change to the Talking ATM scoping provision in Section 220 of the Standards.) The Department’s new rules should not re-create the wheel of Talking ATM standards.

In addition to adopting Section 508 standards, the Department should adopt a generalized performance standard for EIT, such as the following: “EIT shall be accessible to and usable by persons with disabilities so that persons with disabilities may access, perform or acquire the same programs, services and information that the covered entity offers to people without disabilities by means of EIT with a substantially equivalent ease of use.”

This two-pronged regulatory construct (general performance and technical specifications) is currently used in the Department’s new construction regulations. Section 36.401(a) of the DOJ’s Title III regulations defines discrimination as including a failure to design and construct facilities that are “readily accessible to and usable by individuals with disabilities” and Section 36.406 requires that new construction “shall comply” with the technical standards set forth in the Standards for Accessible Design.

Scoping and Trigger events: New and Altered EIT

100% of new and altered EIT, including kiosks, ITMs, and ATMs owned, leased or operated by covered entities that provide services, programs and information to the public should meet accessibility standards. “New” in this context should be defined as technology installed on or after the effective date of the new regulations. “Altered” should include technology installed prior to the effective date and refurbished or modified in any way thereafter, including any significant software modification or upgrade. The Department’s well-established “maximum extent feasible” protection for covered entities should apply to alterations of EIT.

A 100% requirement for new and altered EIT makes sense from the perspective of people with disabilities, the general public, and the covered entity. Significantly, the cost of accessibility at the time of new purchase or alteration is minimal, often involving only inexpensive hardware and a nominal software license fee, a fee that can at times be applied to multiple devices or even enterprise-wide without a per-device cost.

Moreover, it is unfair to make a person with a disability wander around seeking a small percentage of accessible devices among many. This is especially so for people with visual impairments who cannot see the accessible device, or signage designed to identify the accessible device. Braille or large print signage, tactile markings, or other (non-audio) identifiers cannot be located until the person with a visual impairment is at the device, searching for the identification.

The general public is also inconvenienced by anything short of full accessibility. In the grocery store check out context, for example, a blind shopper who has stood in line only to discover an inaccessible point of sale device will delay other customers in that line. If the blind customer is directed to then move to the front of a second line with an accessible device, not only is the customer embarrassed and inconvenienced, but another line of shoppers is made to wait. Universal, accessible design is possible in the world of technology: the Department of Justice should insist upon it.

100% accessibility also benefits covered entities, which typically want a uniform approach to technology for infrastructure management, customer service, and staff training purposes. Indeed, even though current regulations require only one Talking ATM per location, many financial institutions have converted every ATM to a Talking ATM to avoid inconsistent brand identity and to provide full service to all customers at all locations. Bank of America announced in 2010, for example, that all 18,000 of its ATMs were Talking ATMs. See http://lflegal.com/2010/03/bank-of-america-atms/. All major ATM manufacturers are now able to ship Talking ATMs as easily as they can deliver inaccessible machines. Indeed, more than five years ago Triton, an ATM manufacturer that sells ATMs across the pricing spectrum, including low cost devices, announced publicly that all its ATMs would ship with audio capabilities. (The Department should modify Section 220.1 of the 2010 Standards for Accessible Design and eliminate the “one per location’ scoping for automatic teller machines or self-service fare vending, collection, or adjustment machines. These machines should be subject to the same 100% rule as other types of new EIT.)

Scoping and Triggering Events: Existing EIT

To ensure the greatest access possible to the hundreds of thousands of inaccessible kiosks and other EIT currently owned, leased or operated by Title II and III entities and deployed across the country, the Department’s new regulations should clarify that accessibility upgrades to existing EIT are considered auxiliary aids and services under 28 C.F.R. 36.303 and 28 C.F.R. 35.104

Such a classification fits easily within the Department’s existing Title II and III regulatory construct. The 2010 revisions to Sections 36.303(b)(1) and (2) and to the definition of auxiliary aids and services in Section 35.104, for example, added the phrase “accessible electronic and information technology” to the list of examples of auxiliary aids and services in all these sections. And, by leaving untouched the language of Section 36.303(b) (4), and part (4) of the Title II auxiliary aid and service definition in Section 35.104, the Department reaffirmed that auxiliary aids and services also include “[a]cquisition or modification of equipment or devices.”

In the new regulations specifically addressing kiosks, ITMs and other types of EIT, the Department should clarify that adding accessibility features to these devices is already required by the auxiliary aids and services requirements of Titles II and III.

As auxiliary aids and services, the obligation to add accessibility features to kiosks that were installed prior to the effective date of the new regulations would be subject to the “undue burden” defense for Title III entities, and the “undue financial or administrative burden” defense for Title II entities. See 28 C.F.R. 36.104 (Title III) and 28 C.F.R. 35.150(a)(3) (title II). The Department should clarify that adding accessibility features to existing kiosks would never require a fundamental alteration of the kiosk or EIT.

Additionally, depending on the nature of the access issue, EIT may also be subject to other existing policy modification or barrier removal obligations (see additional discussion in response to Question 18).

Conclusion

The Department is playing “catch-up” when it comes to ensuring the accessibility of kiosks, ITMs, and other types of EIT. It is, therefore, particularly imperative that new regulations be strong and unambiguous. The Department’s rulemaking on this important issue must move the country forward in its promise of full equality for people with disabilities.

The Department’s rules should mandate that any ITM, kiosk or other EIT installed or altered (upgraded or refurbished) after the effective date be accessible to people with disabilities. The Department should also clarify that accessibility features for existing kiosks, ITMs and other EIT are already part of the definition of “auxiliary aids and services” subject to the well established “undue burden” / “undue financial and administrative burden” defenses. Similarly, existing policy modification or barrier removal obligations may also apply to EIT.

Only this type of scoping will fulfill the ADA mandate that a person with a disability must not be “segregated” or “treated differently” and must have an “opportunity to participate” that is “equal to that afforded to other individuals.” 42 U.S.C. 12182(b)(2)(A)(iii); 28 C.F.R. 36.202(b).

If there is any doubt that swift decisive action by the Department is needed now, it can be found in the following text from a press release issued in September, 2010 by Instymeds, a company that makes prescription – dispensing kiosks for public use – kiosks that do not have accessibility features:

Johnson Drug at ARMC, located in Amery Regional Medical Center, today announced it has begun offering InstyMeds, a fully automated ATM-style machine that dispenses prescription medications directly to patients immediately following their doctor visit. The system, the first of its kind, offers a safe, convenient way for patients to receive their prescription medications on-site.

“This new system allows patients to get their urgent care and emergency prescriptions filled after clinic hours, when local pharmacies are closed. They can now have those prescriptions filled at the medical center” says Julie Hanlon-Johnson, managing pharmacist. “InstyMeds helps them get back on the road to recovery as soon as possible.

The InstyMeds system automates the entire process from the prescriber issuing the prescription, to the patient obtaining their medications, and payment collection. The patient can obtain their medications and be on their way in about the same time it takes them to use their bank ATM. http://www.instymeds.com/index.php?page=press. It is very likely that such dispensers will soon be available in drug stores and allow customers (who can use the machines) to fill prescriptions at hours when the pharmacy in the drug store is not open. People with disabilities should be able to obtain needed drugs during the same hours as everyone else.

In its initial Standards for Accessible Design, adopted almost twenty years ago, the Department recognized that bank ATMs had to be “independently usable by and accessible to” persons with disabilities. The 2010 Standards clarified what it means to be independently usable by prescribing detailed accessibility requirements. Also in 2010, the Department’s revised its ADA regulations to specifically recognize that Title II and III entities are required to provide accessible electronic and information technology.

The Department must now continue this progress and make sure that people with disabilities can also use all the EIT that is now so integral to the provision of Title II and III programs, services and information.

Health Care. Electronic kiosks and other EIT are developing into a central tool in the provision of health care services, including for patient self-service check-in and check-out, self-service medical testing and monitoring, medication dispensing, and making medical records, test results, and recommendations available to patients.

• In May, 2010, Fujitsu announced it would be conducting a symposium entitled “Self-Service Healthcare: Migrate Over 50 percent of Patients to Kiosks” http://bit.ly/dre52J. According to NCR MediKiosk White Paper entitled Putting the Patient in Control: Employing Technology Solutions to Empower Patients: “self-service kiosks provide an additional channel for insurers to support healthy practices and preventative care by recommending specific tests or procedures to patients with chronic disease management at the point of service. For example, at check-in, patients with diabetes may receive a message from health insurers or health plans encouraging them to discuss the importance of testing for hemoglobin A1c with their physician.” http://www.ncr.com/documents/putting_the_patient_in_control.pdf.
• In-store self-service medical monitors are also likely to increase, going beyond simple blood pressure cuffs and heart rate monitors to full biometrics (weight, body fat, glucose, blood oxygen) with internet connectivity, flat screen displays of medication and disease management information, and the ability to save personal health records (see http://www.lifeclinic.com/synergy.aspx).
• EIT will also be used by pharmacies and other health care providers to dispense medications. The “The InstyMed kiosk” is a “fully automated prescription dispensing system” that is 100% touchscreen and 100% inaccessible. See http://www.instymeds.com/, a site that includes a 3 minute video of the self-service kiosk.

Retail, Entertainment, and Services. EIT is fast moving beyond one-way information provision and simple vending.
See http://www.slideshare.net/PSFK/psfk-presents-future-of-retail-report;
http://www.kiosk.com/market/orderentry-kiosk-experience.php.

• POS devices now require consumer input and self-checkout systems are becoming prevalent. Issues include placement, reach range, display placement/angle, visual and audio output, accessible input mechanisms.
• Restaurants may move away from printed menus to electronic displays and devices, as well as multi-media displays while waiting.
• Movie and entertainment ticketing kiosks are becoming commonplace and are being used for more and more types of experiences (e.g., ski lift tickets).
  http://kis-kisoks.com/custom9.html;
  http://www.kiosk.com/case-studies/ticketmaster.php;
  http://www.kiosk.com/case-studies/vail.php.
• EIT vending machines now offer everything from electronics to makeup with touchscreen input, self-checkout, and self-service. See
  http://www.zoomsystems.com/zoomshops/zs_index.html. Potential barriers include inaccessible touchscreens, product displays, payment methods and pickup mechanisms.
• Kiosks are also being used for photo development,
  http://www.frankmayer.com/portfolio/interactive_kiosk_solutions/sony_snap_lab.php,
  financial services and bill payment,
  http://www.kiosk.com/market/financial-kiosk-experience.php,
  gaming,
  http://www.kiosk.com/market/gaming-kiosk-experience.php,
  and credit applications,
  http://www.frankmayer.com/portfolio/interactive_kiosk_solutions/john_deere_kiosk.php.
• EIT in retail is beginning to provide on-demand and just-in-time product information, such as detailed turn-by-turn/step-by-step directions to find products and services within a mall or store; on-demand product details (contents, instructions, manufacturing (e.g. “green”). Potential barriers include accessible format delivery of information and compatibility with assistive technology.
• Retailers and brands are able to offer just-in-time discounts, coupons, loyalty rewards and other incentives delivered via kiosks, on-the-shelf dispensers, or other EIT devices. Barriers include reach ranges and visual-only formats.
• Stores and hotels are providing customers with “concierge” devices to look up products (e.g., an electronic grocery list organized by aisle, with directions and the ability to check off items; an electronic tablet pre-loaded with local tourist and restaurant information, see
  http://www.timesonline.co.uk/tol/travel/business/article7111644.ece).
  Barriers may include accessibility for people with manual disabilities, accessible input and output options.
• Stores are developing in-store networking systems to allow buyers to consult with their friends who are not in the store (via text, photos, and video). Barriers may include physical and communication inaccessibility for people with mobility, vision, and hearing disabilities.
• Stores are developing in-store EIT feedback mechanisms to seek consumer input and respond in real time. Barriers may include physical and communication inaccessibility for people with mobility, vision, and hearing disabilities.
• Stores are developing systems to make recommendations to consumers based on past and current purchase history. Barriers may include inaccessible communication mechanisms.
• Stores are developing body scanning and facial recognition systems to recommend products based on size, age, gender, and other factors. This includes “virtual try-on” and “virtual fitting room” technology, which enables customers to interact with digital representations of clothing. See,
  http://www.internetretailer.com/2010/10/12/macys-offers-virtual-fitting-room-its-nyc-flagship-store
• Barriers may include physical accessibility of the technology as well as the technology’s assumptions about body size, facial and physical appearance, and posture.
• Body scanning systems are also replacing requirements to present identification to enter some “members only” public accommodations. For example, in August 2010 the 24 Fitness health club chain debuted a “Cardless Check-In,” which relies on an index finger scan.
  http://www.24hourfitness.com/health_clubs/cardless_checkin/. This technology is not accessible to patrons who do not have index fingers, or who are unable to create fingerprints. Positioning and reach range issues may also affect access.
• Stores are offering EIT that allows customizing or previewing product effects (view a paint color on a photograph of your walls, see what a hair cut or color will look like on you). This technology may not be accessible to people with vision disabilities.
• Stores are developing virtual display cases and holographic ads, which may pose barriers to people with vision and hearing disabilities.

Education. Colleges, universities, and secondary schools across the country are using self-service EIT for a variety of educational and administrative interactions with students, parents, and visitors.

• Self-service kiosks are being used by colleges and universities “for automated registration, financial aid information, course catalogs, directories, way finding, academic & athletic event calendars, student ID validation, and more.” See
  http://www.kiosk.com/market/government-kiosk-experience.php.
• School and other libraries are implementing self-service EIT check-out systems. See
  http://www.cen-tec.com/.
• Schools at all levels are also using “clickers,” wireless personal response systems allowing students to answer questions and display those answers so the entire class can see. These remotes allow professors to take attendance, do polls, provide instant quizzes, and receive feedback. See “More Professors Give Out Hand-Held Devices to Monitor Students and Engage Them,” New York Times (Nov. 15, 2010)
  http://www.nytimes.com/2010/11/16/education/16clickers.html.
• High Schools are also turning to self-service machines to provide information to, and gather information from students. Ector County Texas issued a press release in February, 2010 announcing its purchase of 25 devices to “disseminate and collect a wide range of educational content – including administrative announcements, interactive graphics, sign-ins, and informational video to students, teachers, and parents.” A requirement for the chosen kiosks was the “need to be able to stand alone – exposed and unattended.” If these devices are not accessible, students, teachers and parents with disabilities are simply excluded from important school services. See press release at
  http://www.seepoint.com/company-press-release-article.asp?PressReleaseID=85

Transportation. Airline and train kiosks, which allow passengers to check-in, get boarding passes, select seats and perform other functions quickly, privately and independently, have been proliferating since first introduced in the United States ten years ago. See http://bit.ly/9gdxjA, a 2000 article about the “new technology”. Unfortunately, despite clear non-discrimination mandates, these devices are largely inaccessible, even though the industry itself has recognized the need for access. (See IBM whitepaper, “The Need for Accessible Self-Service Travel Kiosks, at
http://www-03.ibm.com/able/news/selfservkiosk.html. Information about IBM’s accessible self-service travel kiosks is available at http://www-01.ibm.com/software/ucd/gallery/kiosks_research.html. These terminals that started out as a convenience on the side have rapidly become the main, and sometimes the only approach for checking in.

Government Services. Examples of EIT used by state and local governments to provide services and information to the public can be found at http://www.kiosk.com/market/government-kiosk-experience.php. Automated government services include

• Vehicle registration and licensing (Michigan Expands License-Renewal Kiosks, Kiosk Marketplace (May 21, 2010), available at
  http://kioskmarketplace.com/article.php?id=24554&na=1);
• Single-space and multi-space parking meters,
  http://www.usatoday.com/tech/news/techinnovations/2009-02-23-smartmeters_N.htm;
• Library services (Automatic Pay Machines, San Mateo County Library,
  http://smcl-main.php.isitedesign.us/content/automatic-payment-machines (last visited June 1, 2010));
• Jury service reimbursements (Online Kiosk, Circuit Court for Baltimore City, available at
  http://www.baltocts.state.md.us/kiosk.htm (last visited June 1, 2010));
• Building permits (Office of the Chief Technology Officer, District of Columbia Opens Virtual Permit Center in Ward 5, DC.gov (Oct. 15, 2008), available at
  https://bit.ly/2WNHL41).
• Electronic voting machines.

This comment addresses question 21 in the Advance Notice of Proposed Rulemaking (“ANPRM”), 75 Fed. Reg. 43452 (July 26, 2010), concerning the standards governing equipment and furniture in the Department of Justice regulations governing Nondiscrimination on the Basis of Disability in Public Accommodations and in Commercial Facilities:

Question 21 (75 Fed. Reg. at 43459). Are there other types of equipment or furniture that impede accessibility that should be specifically addressed in the Department ́s regulation? What types of accessible equipment or furniture would effectively address any such concerns? What scoping would adequately address the impediments to accessibility and what triggering event would be appropriate for each type of other equipment or furniture? Are there particularly helpful types of equipment or furniture that are not generally available to the public that may assist individuals with disabilities, such as pool or shower chairs?

A. Merchandise In Public Accommodations

We propose that the Department adopt the following regulatory language in subpart D of title 28, part 36, “New Construction and Alterations”:

Free-standing fixtures or elements used to display merchandise for self-service by the customers of a place of public accommodation and located in an area governed by this subpart shall be located on an accessible route as that term is defined in the 2010 Standards.

While we believe clear, objective standards are required for all free-standing equipment, this Comment focuses primarily on access barriers in retail stores and proposed regulatory language to address them. The current approach — in which, even in new construction, people with disabilities must prove that rearranging displays is “readily achievable” — is unworkable, and has resulted in a situation in which very few newly constructed retail stores are fully accessible to customers who use wheelchairs.

People who use wheelchairs need clear accessibility standards for merchandise displays and other non-fixed elements in retail stores. These standards should ensure that individuals with disabilities have “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations,” 42 U.S.C. 12182(a) (emphasis added), of retail stores, and that the regulations effectuate the will of Congress that “over time, access … be the rule, rather than the exception,” H.R. Rep. 101-485, pt. 3, at 63 (1990).

The ANPRM recognizes that “[a]ccessible equipment and furniture is often critical to an entity’s ability to provide a person with a disability equal access to its services.” 75 Fed. Reg. at 43455.

In order to ensure that the standards are enforceable by people with disabilities, the standards should be clear and objective; that is, in new construction and alterations, they should not rely on the subjective standards such as “readily achievable” and “undue burden.” The amount of expert analysis required to make a showing under these standards can often be prohibitive for a plaintiff with a disability, and it is our strong belief that retail companies conduct themselves and organize their stores on the assumption that there is simply no governing standard.

Our proposed objective standard is also consistent with the Department’s statement that, “[t]o the extent that ADA standards apply requirement for fixed equipment and furniture, the Department will look to those standards for guidance on accessibility standards for equipment and furniture that are not fixed.” Id. at 43454-55.

We thus urge the Department to adopt a regulation requiring that, in newly constructed or altered facilities, free-standing fixtures or elements on which merchandise displayed for sale and allowing self-service by customers be on an accessible route as that term is defined in the 2010 Standards. We specifically propose that the following language be included in subpart D of title 28, part 36, “New Construction and Alterations”:

Free-standing fixtures or elements used to display merchandise for self-service by the customers of a place of public accommodation and located in an area governed by this subpart shall be located on an accessible route as that term is defined in the 2010 Standards.

We propose that the Department clarify in commentary that this standard would not necessarily require 36 inches around each such element, as an “accessible route” can narrow to 32 inches for lengths of 24 inches or less, see 2010 Standards 403.5.1, and note such access to two opposite sides of typical clothing display units may be sufficient to enable customers with disabilities to reach most of the merchandise on display.

In the alternative, we urge the Department to adopt language that ensures that section 225.2.2 of the 2010 Standards covers all retail shelving and display units, including those that are not physically attached to the building. For example:

All self-service shelving and display units in places of public accommodation, whether fixed or free-standing, shall be subject to section 225.2.2 of the 2010 Standards.

The remainder of this comment explains the need for this regulation in light of the ongoing severe problem that many people who use wheelchairs have in retail stores.

Regulation is Necessary in Order to Ensure Nondiscriminatory Shopping

Even now, 20 years after the ADA was passed, an ordinary shopping trip can be an ordeal of exclusion, frustration and dependence for people who use wheelchairs.

Most modern retail stores are designed for self-service by customers. Nondisabled shoppers are able to browse throughout available merchandise, either to search for a desired item, model, color, size or style, or simply at random, open to the inspiration retailers crave: the impulse purchase. The comprehensive access enjoyed by nondisabled shoppers permits them to examine the material and workmanship of potential purchases, to compare or coordinate different items, and — in clothing stores — to select items to try on. Retailers encourage full use of their stores, designing them to attract customers to browse as much merchandise as possible.

In stores that do not provide an accessible route to merchandise, shopping is a very different experience for people who use wheelchairs. When such customers enter a clothing store, shelves and display units are often arranged so as to block access to much of the merchandise. Tables jut out in front of T-shaped racks, and round racks are backed up against each other or the store wall. Clothing racks are often spaced so that none of the merchandise displayed on them is accessible, or even visible. Whole sections of the store and large quantities of merchandise are inaccessible because display units are crowded so close that only those able to walk can pass between them. Under these conditions people with disabilities often have no access to specific items for which they are searching. Even when they can see items at a distance, they are unable to inspect the material or workmanship or to compare and coordinate items before purchase. Leisurely browsing — enjoyed by so many nondisabled shoppers — is out of the question for people who use wheelchairs.

In addition, customers with disabilities may incur injuries or damage to their wheelchairs or may find themselves unable to avoid damaging merchandise when attempting to access display units that are inaccessible.

Many stores argue that, in lieu of independent access to merchandise, customers who use wheelchairs should rely on sales help to retrieve merchandise from inaccessible fixtures. This is, of course, a far cry from equal access. There is simply no way an employee can retrieve all of the merchandise necessary to provide the equivalent ability to browse, compare and select that nondisabled shoppers have. In addition, the need for assistance in shopping eliminates the independence that nondisabled shoppers take for granted.”No, thank you, I’m just looking” is a common response when store employees ask if a customer would like any assistance. Shoppers who use wheelchairs, like all shoppers, want to be able to browse and shop at their own pace, without the oversight of store employees. Ultimately, a system in which people who use wheelchairs can only shop with assistance is in fundamental conflict with the independence the ADA was passed to ensure. See 42 U.S.C. 12101(a)(8) (“the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living and economic self-sufficiency for such individuals”).

The real-world impact of the congestion that occurs daily in the display practices of most retailers is that many people who use wheelchairs are simply unable to patronize these businesses. If a newly-constructed store had steps at the entrance rather than a ramp, no one would contest that the store discriminated against people with disabilities. The deterrent effect of congested display areas is as real as steps at an entrance.

Legislative History

The ADA requires that new construction and alterations be “readily accessible to and usable by individuals with disabilities.” 42 U.S.C. 12183(a). In the legislative history of the ADA, Congress made clear that that standard meant “access to the goods, services, and programs of the facility. For example, a new building should be designed so that a potential patron can get to a store, get into the store, and get to the areas where goods are being provided.” H.R. Rep. 101-485, pt. 3, at 63 (1990) (emphasis added). It stated further that, the New Construction Standard “is intended to enable people with disabilities … to get to, enter, and use a facility. While the term does not necessarily require the accessibility of every part of every area of a facility, the term contemplates a high degree of convenient accessibility, entailing … access to the goods, services, programs, facilities, and accommodations offered at the facility.” H.R. Rep. 101-485, pt. 2, at 117-18 (1990).

Ultimately, Congress required a higher standard in new construction and alterations than in existing facilities because

[t]he ADA is geared to the future — its goal being that, over time, access will be the rule, rather than the exception. Thus, the bill only requires modest expenditures to provide access in existing facilities, while requiring all new construction to be accessible.

H.R. Rep. 101-485, pt. 3, at 63. Although the legislative history also contains language suggesting that not all merchandise needs to be accessible, H.R. Rep. 101-485, pt. 2 at 110, this language appears in a section discussing the “readily achievable” standard applicable only to existing facilities, and should not be read to undermine Congress’s goal of requiring new facilities to be fully accessible to ensure that access increases over time.

The State of The Law Under the 1991 Standards

Section 4.1.3(12)(b) of the 1991 Standards addressed storage, shelving and display units. Several courts have taken the position that this provision applies only to fixed elements, and that moveable racks are subject to the “readily achievable” standard of 42 U.S.C. 12182(b)(2)(A)(iv). See Colorado Cross-Disability Coalition v. Too (Delaware), Inc., 344 F. Supp. 2d 707 (D. Colo. 2004); Lieber v. Macy’s West, Inc., 80 F. Supp. 2d 1065 (N.D. Cal. 1999).

Retail stores have taken the position that this standard thus applies to any shelf or display rack that is not structurally integrated into the building. And because the “readily achievable” standard is very difficult for a plaintiff to meet in this context, the effect is that many retail stores built long after January 26, 1993, remain almost completely inaccessible.

The “readily achievable” standard is very difficult to litigate in the retail display context because — unlike the analysis of, say, the cost to install a ramp — defendants insist that it involves examination of the impact of rearranging display racks on a company’s finances. This puts the company in a unique position to control — and potentially exaggerate — the analysis of the effect of minor rearrangements on inventory, sales, profits, cash flow, supply chain and other retail factors. Proving — to a retailer pre-litigation or to a court in litigation — that access is readily achievable thus requires a person with a disability to have access to confidential company financial, marking, design and supply chain information and to retain multiple experts to analyze that information. While there may be a few public interest and private law firms with the resources to engage in this analysis, as a practical matter, it will be far beyond the reach of the average shopper who merely wants independent access to merchandise. It also makes pre-suit settlement almost impossible.

In addition, because the “readily achievable” analysis generally examines the impact of the removal of the number of displays or merchandise items necessary to create access, it creates a perverse incentive: the more displays — that is, the more crowded and inaccessible the store — to start with, the more severe the ultimate financial impact, and the more likely the store will prevail.

Because of this, shopping remains highly inaccessible and challenges to this lack of access are now very rare. Currently, a retail store built after January 26, 1993 can place all of its display racks so close together that they are completely inaccessible to customers who use wheelchairs, and there is virtually nothing — as a practical matter — that disabled shoppers can do.

The 2010 Standards do not contain the language in section 4.1.3(12). In fact, they make no reference at all to “displays,” and contain the following regulation governing shelving:

225.2.2 Self-Service Shelving. Self-service shelves shall be located on an accessible route complying with 402. Self-service shelving shall not be required to comply with 308.

The 2010 Standards include this “advisory”:

Self-service shelves include, but are not limited to, library, store, or post office shelves.

From new language to be added to the Department’s Title III regulations, it’s clear that this applies only to fixed self-service shelving. See 36.406(b) (“The … 2010 Standards apply to fixed or built-in elements …”). However, as noted above, the Department stated, in the present ANPRM, that “[t]o the extent that ADA standards apply requirement for fixed equipment and furniture, the Department will look to those standards for guidance on accessibility standards for equipment and furniture that are not fixed.” Id. at 43454-55.

As an initial matter, then, we urge the Department to make clear that 225.2.2 applies to both fixed and moveable self-service shelving.

Simply relying on Section 225.2.2 will not, however, address displays other than shelving, for example, clothing racks. Yet one of the biggest problems for people who use wheelchairs who want to shop independently is free-standing clothing racks that are placed so close together they are excluded from most or all of the store.

In light of this, we urge the Department to adopt regulations explicitly ensuring that people with disabilities will be able to shop independently:

Free-standing fixtures or elements used to display merchandise for self-service by the customers of a place of public accommodation and located in an area governed by this subpart shall be located on an accessible route as that term is defined in the 2010 Standards.

We strongly urge the Department to effectuate the will of Congress that people with disabilities have “full and equal enjoyment of the goods … of any place of public accommodation,” and that “over time, access will be the rule, rather than the exception,” by requiring that all retail displays in new construction and altered areas be accessible. Any other approach will perpetuate the status quo in which — 20 years after passage of the ADA — many newly constructed retail stores remain essentially inaccessible to people with disabilities.

B. voting equipment

At least one recent CircuitCourt decision has held that electronic voting machines are not covered bytheaccessibility requirements of the ADA.American Assn. of People with Disabilities v. Holland, 605F.3d 1124(2010).The court believed that,because such machines were not fixed, they were notrequired to beaccessible.It is important thatthe Department make clear that voting machines aresubject to the communicationand physical accessibility requirements applicable to other forms ofelectronicand information technology, including accessible input and output methods,reach ranges,clear space, and viewing angles.

C. Other Types Of Equipment And Furniture In Medical Settings

The following non-exhaustive list of furniture and equipment is either commonly found in medical facilities and intended for the use of everyone in the facility, or is more specialized equipment and furniture that would particularly benefit users with disabilities in medical facilities. At times patients may use the following items, but generally not for the purpose of diagnosis or treatment. People with disabilities in medical facilities are not only patients, but also comprise visitors, family members, and staff. The Department has already explicitly recognized that covered entities have an obligation to ensure, for example, effective communication with a “companion,” defined as “a family member, friend, or associate of an individual seeking access to a service, program, or activity of a public entity, who, along with such individual, is an appropriate person with whom the public entity should communicate.”[60] We recommend that the Department clearly incorporate a similar definition of a companion in its medical furniture and equipment regulation for Title II and Title III medical facilities; the comments below use “companion” in this sense. Many inpatient medical facilities offer such features as food service areas and housing for family members, especially parents of minor patients. Such features must be accessibly designed and maintained to provide an equal benefit to companions with disabilities. Accessibility and scoping standards for the following items will benefit all people with disabilities, no matter if their presence is motivated by personal illness, a simple check-up, familial or social relationships, legal guardianship, or patient advocacy.

Waiting Room Seating

All outpatients and inpatients, barring the most urgent emergency admissions, generally must spend some period of time in a waiting area. At least 25 percent of waiting room chairs and benches in general practice facilities should consist of love-seat type sofas and larger bariatric chairs, dispersed across all primary and medical specialty waiting areas in a manner that is proportionate by size of the waiting area. The benefits of such seats accrue not only to larger individuals, but also allow patients and parents to sit with their children or loved ones without the restrictions of arm rails.

Inpatient practices, rehabilitation facilities, and hospitals or units within them that specialize in and see large numbers of patients with arthritis, orthopedic, and back conditions should also include at least one Hip/Post-Operative Orthopedic Chair for every main waiting area. These chairs provide added stability, and a retractable footrest can also help with the transition from sitting to standing.

Both of the above requirements should:

• Be triggered upon the earlier of either the replacement or acquisition of waiting room furniture, or the passage of two years after the effective date of medical equipment regulations;
• Be addressed within the covered entity’s medical equipment transition plan.

Many medical facility waiting rooms fail to provide clear floor space for wheelchair users to wait outside of paths of travel because fixed or movable seating occupies all the available space. Though, like other accessibility provisions discussed here, clear floor space for wheelchair users is currently required by the ADA, the Department should make it explicit that such space must be provided, whether the seating in the waiting room is fixed or movable.

Televisions

Commonly mounted in patient rooms, but also at times mounted in public waiting areas, the control buttons on some of these televisions or television remotes are smooth membrane switches that are difficult or impossible to operate by patients or companions who have vision impairments, who do not have use of their hands, or who have limited dexterity and/or strength. Controls should have tactile indications and their operable parts should comply with the ADA Standards for Accessible Design. Accessible EIT is already required by the Department’s 2010 Title II and Title III regulations which are effective in 2011. DREDF recommends that:

• all accessible inpatient rooms also be equipped with television controls with operable parts that comply with the ADA Standards for Accessible Design;
• 25 percent of all televisions in non-accessible patient rooms have television controls with operable parts that comply with the ADA Standards for Accessible Design, dispersed across all primary and medical specialty units in a manner that is proportionate by type of medical specialty; and
• all outpatient and inpatient waiting areas that provide a television also have such controls within 24 months of the date on which the equipment and furniture regulations take effect.

Public Computers / Kiosks

Please see the comments and recommendations made in #20 with regard to electronic visitor and patient kiosks.

Hand Sanitizer Dispensers

All visitors and staff to medical facilities are encouraged to make use of hand sanitizer dispensers located throughout a facility as both a personal and public health measure. Clearly these dispensers should be mounted or placed on stands that are within reach range and the Department should clarify the importance of this simple but necessary requirement. Given the longstanding obligation and the ease of compliance, all medical facilities must have their hand sanitizer dispensers placed within reach range by the effective date of the medical equipment regulations.

Public Signage

We recommend that the Department further regulate signage in medical facilities by requiring:

• Posted text, as well as handouts in alternate formats, to inform individuals with disabilities of the availability of accessible equipment, and their right to request policy modification and effective communication as well as barrier removal.
• Medical facilities to provide this notice
• The above to be provided within 12 months of the effective date of the medical equipment regulations.

In-patient Sleeper Chairs/Beds

These items are provided in patient rooms for the use of companions. DREDF recommends that 10 percent of all in-patient sleeper chairs/beds should incorporate accessibility features such as height adjustability, retractable or removable arms to facilitate independent transfers, and powered or power assisted reclining mechanisms that will not require core and/or limb strength to extend the chair into an extended flat sleeping position. These accessible in-patient sleepers should be distributed among all those departments and units that already have in-patient sleeper chairs.

Self-service Food Preparation and Storage Areas

Some inpatient hospital units such as maternity wards or children’s wards provide an area where appliances such as refrigerators, microwaves, and electric kettles are available for the self-service nutritional needs of patients or companions. The Department should require these appliances to be placed within a reach range that would allow for their independent use by wheelchair users, and the appliances themselves should have controls that include tactile indications for their operation by someone with vision impairments. Medical facilities should provide at least one accessible item of each appliance type available within each self-serve area, within 12 months of the date on which the medical equipment regulations take effect.

Lodging Provided for Companions

Nearby housing that is provided for minimal or no cost to companions of individuals undergoing treatment in a medical facility should be equally available and fully accessible to companions with disabilities. Such housing should provide at a minimum one fully accessible room, up to the same proportion of accessible rooms that is required in places of lodging, with sufficient accompanying accessible restrooms and the ready availability of a lift where required. Accessible rooms should be in place within 24 months of the effective date of the medical equipment regulations.

Emergency Evacuation Equipment

When an emergency occurs in an in- or out-patient setting, emergency evacuation equipment on site makes it easier and safer to move individuals who are injured or who have mobility limitations. These devices help quickly move people in locations in which wheelchair and scooter users cannot go, such as up or down stairs and across rough terrain. Some devices permit a relatively small person to transport a larger person. Other devices work best if the two people are about the same weight.

The Rehabilitation Engineering and Assistive Technology Society of North America (RESNA) has created a committee to establish standards for emergency stair travel devices for people with disabilities. The committee is chaired by Glen Hedman, ghedman@uic.edu, a rehabilitation engineer and clinical associate professor at University of Illinois at Chicago’s Institute on Disability and Human Development. The standards are intended to cover “vocabulary, methods of measurement, test methods and requirements for: dimensions and weight; seating and positioning; performance measures; strength and durability testing; operating limitations; and disclosure requirements” for emergency stair travel devices. Affected stakeholders are expected to include people with mobility disabilities, caregivers, building owners and managers, code development and enforcement professionals, and manufacturers, researchers, designers and test laboratories of emergency stair travel devices. Additional information can be found at http://resna.org/technical-standards/standards,

The Committee’s work and analysis of how to evaluate and compare emergency stair travel devices will be a valuable resource for the Departments regulation of these devices. In the interim, the Department should nonetheless require all inpatient medical facilities and larger outpatient facilities to investigate and acquire a certain minimum number of devices in proportion to the average size of the patient population at any given point in time, and train staff on their operation.

[1] Legislative history to the ADA explicitly confirms this. See, e.g. House Comm. on Educ. and Labor, H.R. Rep. No. 485(II), 101st. Cong., 2nd Sess. at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 391 (“the Committee intends that the types of accommodation 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.”)

[2] DOJ Advance Notice of Proposed Rulemaking, Nondiscrimination on the Basis of Disability by State and Local Governments and Places of Public Accommodation; Equipment and Furniture (E&F ANPRM), Section IV. Background,

[3] See 28 CFR 35.104, 36.303 (2010).

[4] A five year study undertaken by Marquette University from 2003-2007, and funded by the National Institute on Disability Rehabilitation Research (NIDRR), resulted in the work of the Rehabilitation Engineering Research Center on Accessible Medical Instrumentation (RERC-AMI). RERC produced a number of technical reports on specific medical equipment items that are available at
http://www.rerc-ami.org/ami/.
Even though the results have not been updated since 2007, the project’s findings and recommendations remain informative and thoughtful. The RERC website has publicly available technical reports on a number of classes of medical products, including examination tables, cardiopulmonary exercise equipment, infusion pumps, weight scales, medical imaging, and medical beds.

[5] For additional information, see
http://www.canon.com.au/en-au/Business/Specialist-Equipment/Medical (last visited January 4, 2010).

[6] According to a population report released in 2008, people aged 55 to 64 were nearly three times (30.1 percent) as likely to have a disability as people aged 15 to 24 (10.4 percent). The report also detailed an increase in the likelihood of severe disability in successively older age groups, ranging from 3.6 percent for the population under 15 years to 56.2 percent for the population 80 years and older. See Matthew Brault, 2008, “Americans with Disabilities: 2005,” Current Population Reports (Washington, DC: US Census Bureau).

[7] Debra J. Sheets, 2005, “Aging with Disabilities: Ageism and More.” Generations 29, no. 3: 37-41.

[8] Long Term Spinal Cord Injury and Diabetes, Dr. Bill Bauman,
www.craighospital.org/sci/mets/diabetes.asp. See also, Centers for Disease Control and Prevention. National Diabetes Fact Sheet: General Information and National Estimates on Diabetes in the United States, 2007. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, 2008.
http://www.cdc.gov/diabetes/pubs/pdf/ndfs_2007.pdf.

[9] Optometric Clinical Practice Guidelines, Comprehensive Adult Eye and Vision Examination, American Optometric Association, Second Edition 2005 (citing Parker S., The Eye and Seeing, Rev. Ed. New York: Franklin Watts, 1989:4).

[10] The Early Treatment Diabetic Retinopathy Study Research Group. How Effective are Treatments for Diabetic Retinopathy? Ferris, I., Journal of the American Medical Association 269(10):1290-1291, 1993. PubMed; PMID 8437309; See also, American Diabetes Association, Clinical Practice Recommendations, 1999. Diabetes Care 22 (Suppl. 1):S70-S73. PubMed; PMID 10333970

. [11] The Nurse and Health Care Worker Protection Act is an example of relevant legislation that has been introduced in the Senate to preserve the occupational well-being and reduce injury for health care workers engaged in providing lift assistance. The act explicitly refers to the critical importance of acquiring, and encouraging the use of, lift equipment to reduce injuries among staff.

[12] The predecessor department to HHS.

[13] For example, see Summit Training Source, Inc., “Patient Lifting and Transfer Video/DVD.” April 1. 2009.
http://complianceandsafety.com/shop/patient-lifting-and-transfer-videodvd-1625.html, and Vanderbilt University Medical Center’s “Smooth Moves” program at
http://www.mc.vanderbilt.edu/reporter/index.html?ID=3417.

[16] Lifting by untrained staff, or non-medical staff such as security guards or parking attendants, should never be considered or offered as a legitimate lift/transfer assistance option.

[17] See
http://www.ems.stryker.com/detail.jsp?id=10 for additional information (last visited December 27, 2010).

[18] For additional information, please see Rehabilitation Engineering Research Center on Accessible Medical Instrumentation (RERC-AMI) at http://www.rerc-ami.org/ami/ (last visited December 27, 2010), and RERC’s Technical Report on Infusion Pumps, author Megan Conrad, coordinating editor Dr. Jack Winters.

[19] Rehabilitation Engineering Research Center on Accessible Medical Instrumentation (RERC-AMI) Technical Report on Cardiopulmonary Exercise Equipment, authors Lora Mielcarek and Elizabeth Omiatek, coordinating editors Dr. Jack Winters and Dr. Jill Winters at
http://www.rerc-ami.org/ami/tech/tr-ami-mu-003_cardio-exercise/ (last visited January 1, 2011), in part citing North Carolina Office on Disability and Health. (2002). Removing Barriers to Health Clubs and Fitness Facilities. North Carolina. North Carolina Office on Disability and Health.

[20] Harris Family Center for Disability and Health Policy, Using a Fitness Center Does Not Have to be an Exercise in Frustration: Tips for People with Mobility and Visual Disabilities at: http://www.cdihp.org/products.html#fitness. This article describes some of the usability barriers experienced by people with mobility and visual disabilities in fitness facilities, presents ways to remove or reduce barriers, and describes low or no cost solutions as well as more involved long-term solutions.

[21] Donald K. Cherry et al., “National Ambulatory Medical Care Survey: 2006 Summary.” National Health Statistics Reports 3 (August 6, 2008), p. 1. While the word “ambulatory” can be used medically in the narrow sense of the ability to walk, the NAMCS survey targets the offices of non-Federally employed physicians “who were classified by the American Medical Association (AMA) or the American Osteopathic Association (AOA) as ‘office-based, patient care.'” The specialties of anesthesiology, radiology, and pathology were excluded, but visits to private, non-hospital-based clinics and HMOs were included in the scope of the survey. Ibid., p. 7.

[22] Ibid., pp.2-4. Of the remaining offices, 5.9 percent were owned by another health care corporation, 3.4 percent were owned by another hospital, 2 percent were owned by a medical or academic health center, 1.7 percent were owned by an HMO, and 1.6 percent were owned by a community health center. The remaining 2 percent of offices appeared to be owned by a local government entity or charitable organization, or had left the question unanswered.

[23] The Current State of Health Care for People with Disabilities (September 30, 2009), pp 103-104, available at
http://www.ncd.gov/newsroom/publications/2009/HealthCare/HealthCare.html (last visited January 5, 2011).

[24] From Mudrick, N.R.; Breslin, M.L.; Yee, S.; and Liang, M. (2010). Accessibility of Primary Health Care Provider Settings for People with Disabilities: Information from Health Plan Audits [Slides]. Presented at the annual meeting of the American Public Health Association, Denver, CO, November 8, 2010.

[25] 28 CFR 35.151 (h) (new subsection on T II new construction and alterations that specifically addresses medical care facilities): Medical care facilities. Medical care facilities that are subject to this section shall comply with the provisions of the 2010 Standards applicable to medical care facilities, including, but not limited to, sections 223 and 805. In addition, medical care facilities that do not specialize in the treatment of conditions that affect mobility shall disperse the accessible patient bedrooms required by section 223.2.1 of the 2010 Standards in a manner that is proportionate by type of medical specialty. As amended by DOJ’s revised ADA Title II regulations, published Sept. 15, 2010, and taking effect March 15, 2011. 28 CFR 36.406(g) is the equivalent provision for new construction and alterations in Title III public accommodations.

[26] Department of Justice, 2010 ADA Standards 223.2.2.

[27] Department of Justice, 2010 ADA Standards 223.2.1.

[28] 28 CFR 35.151 (h) and 28 CFR 36.406(g). As amended by DOJ’s revised ADA Title II regulations, published Sept. 15, 2010, and taking effect March 15, 2011.

[29] Section-by-section analysis in Final Rule on Nondiscrimination on the Basis of Disability in State and Local Government Services, as published in Federal Register: September 15, 2010 (Volume 75, Number 178) at p. 56217. The section-by-section analysis of the Title III regulations has the same analysis pertaining to the equivalent dispersal requirement in Title III, in F.R., September 15, 2010 (Volume 75, Number 178) at p. 56309.

[30] There is a possible exception for individual providers or provider groups who contract with a managed care organization that could help potentially facilitate and ensure compliance with required percentages of accessible offices and accessible equipment across all primary and specialty practices in its provider network.

[31] This phrase is intended to cover inpatient hospitals and rehabilitation facilities that specialize in treating conditions that affect mobility, or units within either that specialize in treating conditions that affect mobility.

[32] See answer to 10(a) above for discussion on what comprises “basic” medical equipment and furniture categories.

[33] As an example, readily achievable barrier removal by Title III covered entities carries an ongoing obligation, so that a business which faces financial insolvency, for example, and therefore has a defense to undertaking barrier removal, must continue with barrier removal when the business’s financial circumstances improve. See DOJ, ADA Technical Assistance, Common Questions: Readily Achievable Barrier Removal (August 1996) at 11, which also recommends that public accommodations “establish procedures for the ongoing assessment of their compliance with the ADA’s barrier removal requirements”. Id. at 9.

[34] We recommend that the Department provide guidance to covered entities on the kinds of factors that the entity should consider in prioritizing its accessible equipment purchases. For example, exam tables, weight scales, gurneys, and commodes will all fall within “basic medical equipment” as they are frequently used and essential for both examination and treatment purposes. If a particular outpatient office already has adjustable tables that go to a minimum height of 20 inches, falling short of the required minimum height of 17 to 19 inches, a gurney with a weight capacity that does not reach the required 500 to 800 pounds, and no weight scales with any accessible features, the facility may prioritize the acquisition or replacement of accessible weight scales in its transition plan, though it will still have to meet scoping requirements for the other pieces of basic equipment according to applicable deadlines. In other words, a facility may prioritize the most frequently used and least accessible equipment for replacement and purchase and not simply target the oldest or lowest cost equipment. The department should also offer guidance to covered entities by cataloguing low-cost barrier removal strategies and best practices that can improve access before an office renovation and/or procurement of accessible equipment is complete. Best practices can exceed current minimum standards and incorporate universal design elements. For example, grab bars can be installed for fall prevention on the walls adjacent to where an exam table is stationed. Office staff can be trained to notify patients of the availability and features of all existing adjustable equipment in the facility, and put scheduling procedures into place that will maximize its use, even if equipment currently available does not yet meet the applicable accessibility standards.

[35] The IHRSA Global Report 2009

[36] Data on the number of people with mobility impairments comes from the U.S. Census Bureau.

[37] Data on the number of people with vision impairments comes from the U.S. Census Bureau.

[38] Healthy People 2010: Objectives for Improving Health; Disability and Secondary Conditions, p. 6-3.

[39] Healthy People 2010: Objectives for Improving Health; Disability and Secondary Conditions, p. 6-20.

[42] National Golf Foundation website, Frequently Asked Questions and Operating & Financial Performance Profiles of 18-Hole Golf Facilities in the United States, July 2010.

[45] National Golf Foundation website, Operating & Financial Performance Profiles of 18-Hole Golf Facilities in the United States, July 2010.

[47] 19-inch wheelchair front-edge seat height of popular wheelchair models

The low (L) and high (H) dimensions reflect choices of wheel sizes.

Manual Chairs

Invacare Top End Crossfire (L) 16″ (H) 21″

Invacare Tracer EX2 (L) 17-1/2″ (H) 29-1/2″

Quickie Breezy Ultra 4 (L) 18″ (H) 18″

Nova Transport chair (all 11 models) (L) 19″ (H) 20″

Nova steel wheelchair (all 7 models) (L) 20″ (H) 20″

Nova lightweight chair (all 3 models) (l) 20-1/2″ (H) 20-1/2

Power Chairs

Pride Q600 (L) 16-3/4″ (H) 17-3/8″

Pride Jazzy 600 (L) 17″ (H) 20″

Invacare 3G Torque (L) 17-1/2″ (H) 21″

[48] Personal communication with Bonnie Lewkowicz, Access Northern California, December 8, 2010

[49] Two leading manufacturers, Leggett & Platt, and Hollywood Bed & Spring, provide standard metal bed frames for all sizes that stand 7″ to 7-1/2″ high, depending on the choice of floor glides, casters, or rug rollers. See more on bed frames in section on portable lifts.

[50] Mattresses can be supported by a low-profile box spring, which is also called a palette board. The standard of the industry across various brands is 1-3/4″ thick. Also see products such as the Bunkie Board at
www.havertys.com/Product_22503?curIndex=1&resultCount=41.

[51] An 8-inch thick mattress was common ten years ago. Today’s trend is toward thicker mattresses that are commonly 10″ to 14″ thick, but can be as thick as 18-inch. Among the popular brands, 12-inch thick mattresses are available that include popular features such as non-flip, pillow-top, and latex foam.

Sealy Monogram 400 Plush
2-inch Supersoft Sealyfoam
11-1/2 inch mattress height

Sealy Hotel Executive Limited – Plush
1 oz. Sealy Fiber, 2″ Sealyfoam
12-1/2 inch mattress height

Sealy Posturepedic
Alford Cushion Firm-Innerspring Core
12-inch mattress height

Serta Perfect Sleeper
Gold Suite Pillow Top
12-1/2 inch mattress height

Serta Perfect Sleeper
Diamond Suite Plush
11-1/2 inch mattress height

Englander Indulgence
All Foam Mattress
12-inch mattress height

[52] Observations of nine models of lifts (see below) show that most personal lifting devices need 5.5 inches or less of vertical clearance under the bed, while a few that use larger wheels for greater ease of maneuvering on carpet, need 6.5 inches of clearance. The most common metal bed frames provide 7 to 7.5 inches of clearance under the bed, depending on whether they are outfitted with floor glides, casters or rug rollers. That is sufficient clearance for the front legs of even the highest lifting devices.

For example, two leading manufacturers, Leggett & Platt and Hollywood Bed & Spring, provide standard metal bed frames for all sizes that stand 7 inches to 7.5 inches high, depending on the choice of floor glides, casters or rug rollers. While a lower frame could be acquired, the standard 7-inch high models, of which there are many choices, will accommodate the 4-1/2 inch high front forks the common Hoyer Advance portable personal lifting device (www.joerns.com/lifting-repositioning/advance) as well as other lift models. This would allow meeting the requirements of future USDOJ standards and would ensure meeting the current California building code requirement for a clear height of 7 inches under the bed (Section 1111B.4.3):

(2010 CBC) 1111B.4.3 Access to beds. Accessible sleeping rooms shall have a 36-inch (914 mm) clear width maneuvering space located along both sides of a bed, except that where two beds are provided, this requirement can be met by providing a 36-inch-wide (914 mm) maneuvering space located between the beds. In addition, there shall be a clear space under the bed for the use of a personal lift device. The clear space shall be on a long side of the bed adjacent to an accessible aisle. The clear space shall extend horizontally to points not more than 12 inches (305 mm) from each end of the bed, vertically not less than 7 inches (178 mm), and not less than 30 inches (762 mm) deep.

Note: This 12 horizontal inches is a restrictive provision that could be larger to allow for a deeper bedside table.

Lift data:

This lift data was compiled as of December 20, 2010 by Access Compliance Services
(www.accesscomplianceservices.net/):

PERSONAL LIFTS – 2010 DATA, VERTICAL CLEARANCE NEEDED UNDER BED (see full data below)

Invacare 9805P

Vertical clearance needed under the bed: 6.5 inches

Invacare Get-U-Up Hydraulic GHS350

Vertical clearance needed under the bed: 4.5 inches

Invacare Reliant RHL-450 w/low base

Vertical clearance needed under the bed: 4.5 inches

Hoyer Hoy-Advance-H

Vertical clearance needed under the bed: 5.5 inches

Hoyer Classic C-HLA

Vertical clearance needed under the bed: 5.5 inches

Hoyer Hydraulic HML400

Vertical clearance needed under the bed: 5.5 inches

Drive Medical Hydraulic Lift 13010 SV

Vertical clearance needed under the bed: 5.5 inches

Apex Genesis 400 DPL 400H

Vertical clearance needed under the bed: 4 inches

ProBasics LIFT

Vertical clearance needed under the bed: 6.5 inches

PERSONAL LIFTS – 2010 DATA IN FULL:

Resources:

Hoyer Personal Lift
Ted Hoyer & Company
2222 Minnesota St.
Oshkosh, WI
414-236-3460
800-255-5022
800-211-6522 (tech support)

Quickie Designs Inc.

Sunrise Medical
2842 Business Park
Fresno, CA 93727
209-292-7412 (fax)
800-456-8168
888-739-6059 (tech. support)

Invacare Corporation
899 Cleveland St.
Elyria, OH 44036-2125
800 333-6900

[53] DREDF strongly recommends that group homes and group living arrangements that purport to specialize in providing housing and care for people with conditions that affect mobility should be subject to the same accessibility and scoping requirements for accessible beds as inpatient medical facilities that specialize in the treatment of conditions that affect mobility, irrespective of the level of skilled nursing care required.

[55] Significantly, to the extent that that visual interaction with an operating mechanism is contemplated, Guidance accompanying the 1991 Standards emphasizes that placement of operative features should “[c]onsider that the standard eye level range of an adult seated in a wheelchair is from 43 to 51 inches from the floor.” See ADAAG Manual: a guide to the Americans with Disabilities Act Accessibility Guidelines at 135 (Check-Out Aisles [7.3]). This same Guidance acknowledges that there are “aspects of design not specifically covered in ADAAG, such as the standard eye level range (43 – 51 inches) and the design and height of elements viewed up close or from above (e.g., certain information screens and display cases.).” Id. at 12 (Space Allowances and Reach Ranges [4.2]).

[56] As to the 1991 Standards, see Section 4.32.4 (accessible tables or counters; height requirement from 28 inches to 34 inches); Section 7.2 (sales and service counters; height requirement 36 inches); and Section 7.3 (check-out aisles; height requirement 38 inches). As to the 2010 Standards, see Section 902.3 (work surfaces; height requirements from 28 inches to 34 inches); Section 904.3 (check writing surfaces; height requirements from 28 inches to 36 inches); and Sections 904.1 and 904.3.2 (check out aisles and sales and service counters; height requirement 38 inches).

[57] See 28 C.F.R. 36.303(b)(1) and (2) and the definition of auxiliary aids and services in Section 35.104 for example, as amended by DOJ’s revised ADA Title II and Title III regulations, published Sept. 15, 2010, and taking effect March 15, 2011

[60] 28 CFR 35.160(a)(2).