Overview / Introduction to Comments

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.

Every subject 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.

[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.”)