Other Furniture and Equipment

Comments on the 2010 Advance Notice of Proposed Rulemaking on Equipment and Furniture — Question 21.

Nondiscrimination on the Basis of Disability by State and Local Governments and
Places of Public Accommodation; Equipment and Furniture
Document ID DOJ-CRT-2010-0008-0001
28 C.F.R. Parts 35 and 36
CRT Docket No. 113
AG Order No. RIN 1190-AA64

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:

Department of Justice 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.

Overview of Proposed Standard

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 and the ANPRM

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.

Conclusion

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 Circuit Court decision has held that electronic voting machines are not covered by the accessibility requirements of the ADA. American Assn. of People with Disabilities v. Holland, 605 F.3d 1124 (2010). The court believed that, because such machines were not fixed, they were not required to be accessible. It is important that the Department make clear that voting machines are subject to the communication and physical accessibility requirements applicable to other forms of electronic and 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-exhaustie list of furniture and equipment is either commonly found in medical facilities and intended for the use of eeryone 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 isitors, family members, and staff. The Department has already explicitly recognized that coered entities hae an obligation to ensure, for example, effectie communication with a “companion,” defined as “a family member, friend, or associate of an indiidual seeking access to a serice, program, or actiity of a public entity, who, along with such indiidual, is an appropriate person with whom the public entity should communicate.”[1] 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 serice areas and housing for family members, especially parents of minor patients. Such features must be accessibly designed and maintained to proide 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 motiated by personal illness, a simple check-up, familial or social relationships, legal guardianship, or patient adocacy.

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 loe-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 indiiduals, but also allow patients and parents to sit with their children or loed 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-Operatie Orthopedic Chair for eery main waiting area. These chairs proide 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 effectie date of medical equipment regulations;
  • Be addressed within the coered entity’s medical equipment transition plan.

Many medical facility waiting rooms fail to proide clear floor space for wheelchair users to wait outside of paths of trael because fixed or moable seating occupies all the aailable space. Though, like other accessibility proisions 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 proided, whether the seating in the waiting room is fixed or moable.

Televisions

Commonly mounted in patient rooms, but also at times mounted in public waiting areas, the control buttons on some of these televisions or teleision remotes are smooth membrane switches that are difficult or impossible to operate by patients or companions who hae ision impairments, who do not hae use of their hands, or who hae limited dexterity and/or strength. Controls should hae 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 effectie in 2011. DREDF recommends that:

  • all accessible inpatient rooms also be equipped with teleision controls with operable parts that comply with the ADA Standards for Accessible Design;
  • 25 percent of all televisions in non-accessible patient rooms hae teleision 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 proide a teleision also hae 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 isitor and patient kiosks.

Hand Sanitizer Dispensers

All isitors 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. Gien the longstanding obligation and the ease of compliance, all medical facilities must hae their hand sanitizer dispensers placed within reach range by the effectie 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 indiiduals with disabilities of the aailability of accessible equipment, and their right to request policy modification and effectie communication as well as barrier remoal.
  • Medical facilities to proide this notice
  • The aboe to be proided within 12 months of the effectie date of the medical equipment regulations.

In-patient Sleeper Chairs/Beds

These items are proided 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 remoable 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 hae in-patient sleeper chairs.

Self-serice Food Preparation and Storage Areas

Some inpatient hospital units such as maternity wards or children’s wards proide an area where appliances such as refrigerators, microwaes, and electric kettles are aailable for the self-serice 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 themseles should hae controls that include tactile indications for their operation by someone with ision impairments. Medical facilities should proide at least one accessible item of each appliance type aailable within each self-sere area, within 12 months of the date on which the medical equipment regulations take effect.

Lodging Proided for Companions

Nearby housing that is proided for minimal or no cost to companions of indiiduals undergoing treatment in a medical facility should be equally aailable and fully accessible to companions with disabilities. Such housing should proide 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 aailability of a lift where required. Accessible rooms should be in place within 24 months of the effectie date of the medical equipment regulations.

Emergency Eacuation Equipment

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

The Rehabilitation Engineering and Assistie Technology Society of North America (RESNA) has created a committee to establish standards for emergency stair trael deices for people with disabilities. The committee is chaired by Glen Hedman, ghedman@uic.edu, a rehabilitation engineer and clinical associate professor at Uniersity of Illinois at Chicago’s Institute on Disability and Human Deelopment. The standards are intended to coer “ocabulary, 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 trael deices. Affected stakeholders are expected to include people with mobility disabilities, caregiers, building owners and managers, code deelopment and enforcement professionals, and manufacturers, researchers, designers and test laboratories of emergency stair trael deices. Additional information can be found at http://resna.org/technical-standards/standards.

The Committee’s work and analysis of how to ealuate and compare emergency stair trael deices will be a aluable resource for the Departments regulation of these deices. In the interim, the Department should nonetheless require all inpatient medical facilities and larger outpatient facilities to inestigate and acquire a certain minimum number of deices in proportion to the aerage size of the patient population at any gien point in time, and train staff on their operation.

[1] 28 CFR § 35.160(a)(2).