Good day, ladies and gentlemen, and welcome to your event: Ask DOJ: Proposal to Revise ADA Regulations Under Title II and Title III. At this time all participants will be in a listen only mode. Later we will have a question and answer session which instructions will be given each time. If anyone should require assistance, you can press star then 0 and an Operator will assist you. And as a reminder, this conference call is being recorded. Now it is my pleasure to announce your host, Peter Berg.
Thank you very much and good afternoon, everyone and welcome to a special session of the ADA Audio Conference series which is a collaboration of the 10 regional ADA Centers, also known as Disability and Business Technical Assistance CentersDBTACs. You can reach the ADA Center that serves your state by dialing 800-949-4232. As the Operator just mentioned, todays special session is being recorded, and the text transcript of todays session will become part of the public record, as the Department of Justice moves forward in their rule making process to revise the regulations under Title II and Title III of the ADA applying to state and local governments, places of public accommodation, and commercial facilities, and that also includes updating the ADA standards for accessible design. Todays session is a two hour session, 30 minutes longer than our typical session, so, after 90 minutes please don''t give up on us. We will have another 30 minutes to go. We are pleased to have with us a familiar voice and friend to the DBTACs and ADA centers, that being Chief of the Disability Rights Section within the Office of Civil Rights for the U.S. Department of Justice, Mr. John Wodatch. John has a lengthy career in the civil rights of individuals with disabilities, and has had significant input and direction in terms of the implementing regulations under the ADA and also the implementing Section 504 regulations under the Rehabilitation Act. So at this point in time, I would like to turn it over to John. So, welcome, John.
Thank you very much, Peter, and good afternoon, or good morning to some of you out there. I am delighted that you are spending some time with us today to learn about the proposals we have put forward on the Americans with Disabilities Act. Let me start out, I am accompanied here in Washington by several people. Loretta King who is the Deputy Assistant Attorney General in the Civil Rights Division, is here with me as is Janet Blizard, who is the Deputy Chief of the Disability Rights Section. Unfortunately, for you, I am going to do most of the talking for the next hour, and after that, I will try and talk for about an hour, I will try to hold myself to that, and then we will have time for Q & A and Loretta and Janet will help me respond to some of your questions. What I would like to do is do sort of a general briefing about the proposals we have put forward so you can have an idea of what is in them and respond to the questions that you have. Our goal in doing this is to familiarize you with what is in our proposals with a goal that we hope that you will be interested enough to provide us comments on our proposals. If you go to our website, ADA.gov, it will provide you the information you need on how to provide comments, but basically, there''s a website called Regulations.gov, which is a federal website and you can provide your comments electronically there. You can also review the comments that we have received thus far from others and see what people are commenting on. The end of the comment period is August 18th, so you have some time to familiarize yourself with our proposals. The proposals themselves are, you can find them on our website at ADA.gov. They include proposed changes to regulations under Title II which deals with state and local governments, a proposed regulation that amends our Title III regulation which deals with public accommodations in commercial facilities. There is an Appendix A that talks about comments we have received on the ADA guidelines at the Access Board, Appendix B talks about regulatory impact analysis. There is also a regulatory impact analysis, something that is really a cost benefit analysis that we are required to do by both federal law and federal executive order. We hope you will spend some time with all of those documents as well as the revised ADA guidelines of the Access Board. I think a number of you are probably familiar with those, but you can go to our website as well to look at those and see exactly what it is that we are recommending that we adopt as the ADA standards. Let me also point out that we are planning a public hearing which will be next Tuesday, July 15th in Washington. It will be from 9:00 a.m.-5:00 p.m. You can register to participate and provide comments, information on how to do that is in our website but basically by calling our ADA information line, you can get a thought and we hope that people will do that by this, um, by the end of this week. For those of you who just want to see what is going on at that public hearing, and don''t want to comment, we are planning to have a Webcast of that proceeding itself, so that if you just want to watch, you will be able to do that online, information about how to do that will be available later today, if it is not already up there today, on our website, ADA.gov, so, if you are interested in participating in that, you can do that by either being in Washington, we do have a process by which we will take comments by phone. We are limiting the comment time of people participating in that to five minutes to insure as wide a variety of commenters as possible. So, that is sort of the I think all of the record keeping; keep in mind if you want to file comments you have until August 18th and you can do that electronically at regulations.gov. I thought what I would do in sort of going over this is to divide what I am going to talk about into a couple areas. First talk a little bit about why we are doing a proposal at all, and the process that got us there, and then talk about some of the highlights. The proposals relating to new guidelines from the Access Board that we are adopting is one topic. Another topic is Safe Harbors, and probably the third topic I will spend time on are additional proposals that we have put in our rules that come from the departments experience, and I will also talk a little bit about the cost benefit analysis. And then we will open it up to comments. Okay, so why are we doing these regulations? The Access Board, which if you do not remember who they are, is an independent federal agency that under the ADA is charged with the obligation to develop accessibility guidelines for what constitutes accessible facilities covered by the Americans with Disabilities Act. The statute then gives us the responsibility to issue standards that are actually applicable to state and local governments and to private entities that are covered by the law and to make them applicable to and to give them the force and effect of law. Over the past over 10 years the Access Board has been engaged in the process of adding to their guidelines and they also have been engaged in a process of reformatting them to make them consistent with private codes and state and local building codes. We at the Department of Justice have not kept pace with them over the years as they have been making their changes and so this regulation is putting us four square behind what they have been doing so the main reason that we are issuing this proposal is to signal our intent to adopt as ADA standards the changes that they have made to the ADA accessibility guidelines, and that includes both the reformatting and sort of changes of that nature as well as new standards that we have not adopted which basically includes the standards for children facilities, state and local governments, play areas and recreation facilities. In addition, we have an obligation that comes under another federal law of the Regulatory Flexibility Act as it has been amended by the Small Business Regulatory Enforcement Fairness Act which requires us to do a review of our regulations every 10 years or so, and so this regulation , these two proposals of ours, are our effort to comply with those federal laws and the idea behind those laws is we should look at our regulations to insure that they are still needed to carry out the Americans with Disabilities Act and that they are not having an untoward effect on small entities, particularly small businesses and small units of local government, and so that is why the second major purpose, the benefit of both of these purposes is also what the Access Board has been spending its time doing which is harmonizing accessibility standards. There are a myriad of accessibility standards, some at the federal level, some at the state level, some that are private and some that are local codes and the Access Board has been engaged in an effort to try to harmonize them and not always make them the same but where possible make them the same so that builders, architects, design professionals, people with disabilities across the country can look to one standard as much as possible, and not have to go to a variety of different sources to understand what an accessible facility is. So, that is our process. We began this process in 2004, right after the Access Board finished its revised ADA Accessibility Guidelines. We put out what we call then advanced notice of proposed rule making in September of 2004. We received over 900 comments at that time on our proposal. We have reviewed those; we have come up with a proposal that we have put fourth and also, because it was our view that these regulations would have a significant impact on the economy, which OMB [Office of Management and Budget] defines as over $100 million a year, we were required to do what we would call a full blown cost benefit analysis, and I hope some of you out there care enough about that to spend some time with it. It is 800 pages long, a lot of it is charts and graphs, and it is on our website, and so if you are inclined in that direction, we hope that some of you will spend some time with it and provide us comments on that. Okay, I think that is probably enough background. Let''s start with, um, some of the specifics about our proposals themselves. Perhaps the most important part of what we were trying to do and the main reason we started down this road was to adopt the Access Board''s ADA Accessibility Guidelines and make them, to give them the force and effect of law and so what we are proposing to do is adopt as the ADA standards what the Access Board has put forward as guidelines. Let me go through some of the requirements, the main thing that we are doing here, keep in mind, is talking, the first part I want to talk about is requirements for new construction and alterations, and by adopting these what we are saying is that any entity covered by the ADA, whether it is a state or local government, or a private entity, that is a public accommodation or a commercial facility, when they are designing and constructing facilities that are covered by these guides, what would become standards or if they are altering facilities, would have to comply with them. Let me give you just sort of go through some of the major ones. One of the biggest areas is play areas, playgrounds. Playgrounds for children, areas for children two and over would be covered by us for the first time and it would require that these playgrounds be constructed in an accessible fashion, and if alterations are made there would be requirements to make those in an accessible fashion as they are described in the guidelines which would become standard. These are fairly detailed and very specific. The Access Board has some technical assistance guidance which is very helpful on their website, which is access-board.gov that provides information, but basically, these are very specific requirements, talking about the surfaces that are under the youth zones in playgrounds as well as the type of equipment and how much of it has to be accessible. To give you just a sort of a basic understanding where a playground will have ground level play components, one of each type of these components would have to be accessible and the types that the standards will talk about are, I love these by the way, rocking, swinging, climbing, spinning, and sliding components. In addition, if we are elevated, play components are provided at least 50% of them are going to have to be on an accessible route. In addition there is another requirement that if you have certain numbers of elevated play components, you may have a requirement to have additional ground components, so for example, if a playground had 8-10 elevated play components, it would have an obligation to have three ground level play components of three different types, of the types that I talked about. So even if a playground only had the elevated, they would now have a requirement to have some ground equipment. There are very specific requirements that get into how you have elevated play equipment, whether you use transfer systems, or whether you use ramps, they are very detailed, but they will become, if we and we are proposing to adopt these and make this the requirement for playgrounds whether public or private, and there are some exceptions that are in the ADA guidelines that we would adopt along with them. One is that family child care facilities where the proprietor resides would not be covered by these and amusement attractions are not covered by these. I should point out that we have done a lot of research over the last couple years and if you go to the most of the manufacturers of playground equipment in the United States now, it is pretty hard to buy playground equipment that isn''t accessible. I think you have to go out of your way to do it, and some of the analysis we have done has shown that since the year 2000, a number of playgrounds in this country are already being constructed and designed and built in an accessible fashion. Keep in mind another part of this in addition to the play components is the youth zone and having the right kind of surfacing under the play equipment, so that it is both accessible and safe for children. Okay, so that is playgrounds. Let''s talk a little bit about swimming pools, wading pools and spas, another area that is covered really for the first time, and for the first time particularly for swimming pools, the new standards would require an accessible means of entry for swimming pools. In our past history, we have required accessible routes to the pools but we have never required accessible means of entry or egress from a swimming pool itself and the guidelines which we have adopted standards deal with pools and say that if you have a pool that has 300 or more linear feet of swimming pool, so the perimeter is 300 feet, you have to have two means of entry and the possible means of entry usually the main ones are pool lifts, or sloped entry which is a kind of ramp. There are also some other requirements that you can use, pool stairs, transfer walls and transfer platforms are other means that are available. Pools that have less than 300 feet of perimeter would only have to have one accessible means of entry and also there are some specific requirements for leisure pools, wave action pools, sand bottom pools and pools where access is limited to one means of entry, you obviously would only then have to have one means of accessible entry. These requirements also deal with wading pools and there should be an all newly constructed and altered wading pools, at least one accessible means of entry to the deepest part of the wading pool, and for spas, there should be under these the requirement is that there be one accessible means of entry either by pool lift, transfer wall or a transfer platform to a spa. There is a slight exception that if you have a cluster of spas in an area, no more than 5% but at least one of those in each cluster would have to be accessible. There are very detailed requirements on amusement rides. I guess the main thing to know about this is that we are talking here about permanently installed amusement rides at parks, and that there are very specific accessibility features. These requirements do not apply to mobile or portable rides, so the traveling fair, carnival kinds of things are not covered by these standards and it also doesn''t apply to rides that are controlled by the rider which is like bumper cars, it doesn''t apply to rides without seats or rides for little children. The requirements really are pretty specific. They deal with an accessible path of travel to the ride itself, to the load and unload area, and the requirement is that at least there be one wheelchair space or a seat for transfer designed for a person who uses a wheelchair, so a roller coaster for example, in this regard, would have to have a means that a wheelchair user could get up to the ride and transfer either transfer on to the ride or have their, have a space for the wheelchair on it. In addition, the requirements for companion seating and where it is shoulder to shoulder companion seating is provided for the general public, the requirement is that you have to do the same thing for wheelchair users except where it is either operationally or structurally not feasible which would mean that the design of the ride would not allow for that, so that is amusement rides. I am going through these just to sort of whet your appetite. If you are interested in these areas, I hope you will spend the time to go to ADA.gov, look at the standards themselves and provide us comments. Golf courses. They will require that there be accessible putting greens, teeing grounds and accessible routes connecting all of the accessible elements and spaces. There is some very specific requirements for the teeing grounds, you would have to be able to have a golf cart enter and exit a teeing ground, where there are multiple teeing grounds there are different requirements. For example, if there are two teeing grounds, then the forward one has to be the accessible one. Where there are three, then you have to have at least two of them and then they are very specific exceptions, specific requirements. There is one exception for existing courses that have been designed where it is not feasible due to the terrain to make the forward one accessible, then it would be okay for the golf course to make a different teeing ground accessible. And in addition, there are requirements for teeing stations at driving ranges, practice teeing grounds and putting greens and making sure that at least 5% of those or at least one are accessible. While we are on the subject of golf courses let me mention an issue that we dealt with in our ANPRM, and I should point out that our regulations, the proposals ask a lot of questions. There are 52 questions in the regulation on Title II and there are 59 questions in the regulation on Title III and your comment can be just an answer to those questions but we are really fair game to any comments you are going to have but one of the questions, one of the issues we dealt with in the ANPRM was whether golf courses should be required to provide one or two specialized golf cars usually called single rider cars that allow a golfer who can''t transfer out of a regular golf cart to play golf from a semi-standing position without ever leaving the golf cart. We asked for comments about that, received a number and have decided that at this time, we are not going to do any specific regulatory requirement in that regard, although we do think that our existing, we are not saying that this could not be required. We just think our regulation at this point is adequate to take care of it, so if you are interested the golf course issue, that would be an issue you might want to address in your comments as well. For those of you who don''t play golf but play miniature golf, there are requirements for miniature golf in this rule as well. It requires that at least 50% of the holes on a mini golf course should be accessible. There is requirement that the holes must be consecutive, although there is one exception that you could have one break in that. We have asked a number of questions about this. This already has been an area of some controversy in the press, but we have, if you are interested the Title III, questions 45 and 59 deal with a couple specific issues that have come up, whether there should be an exception to these requirements for particularly small miniature golf courses or whether we should have, to allow multiple breaks in the sequence of accessible holes so those issues are there for you to comment on as well. Another area in this litany of recreation facilities are recreational boating facilities and again, it is very detailed regulation, but the basic rule is if there is a boating facility that is providing boat slips, they have to provide some accessible boat slips. How many depends upon the number of boat slips that are there so for example, if you have 1-25 boat slips then one has to be accessible. If you have 101-150, you have to have four, so there is a table that would provide that and it also requires that the boat slips be disbursed through different types of boat slips that are provided. There are also some requirements for if an entity that is covered by the ADA has boarding piers at boat launch ramps, then at least 5% or one of them has to be accessible. And connected to this is a very complicated set of rules on the length and slope of gangways at boat slips. Part of the reason for the complication is that we are dealing within some parts of this country with tidal waters, how you can make boat slips where you have tidal waters accessible, and there are specific provisions dealing with that, but I think the final exception is we would never be requiring more than 80 feet of gangway at any one of these boat slips. Just a few more of these before I move on. Exercise machines and equipment are covered for the first time, and what this requires is that at least one type of each type of exercise machine whether we are talking about an exercise club or facilities at a hotel, one type of each would have to be accessible which means that there would have to be enough clear floor space around it for a wheelchair user to use the machine. The Access Board has made clear that when they are talking about what is one type, so if you have a facility that has stationary bikes and rowing machines and treadmills and stair climbers, those are each different types, even though they are all dealing with cardiovascular exercise, they are different and you would have to have at least one of those that had clear floor space and the standards also point out that you can share, of course, accessible floor space between them. Another area that we deal with is fishing piers and platforms. What these require is an accessible route to the fishing piers and platforms and if there are railings, having 25% of the area have lowered railings, meaning railings that are 34 inches above the floor of the deck or whatever the surface is so that a fisher in a wheelchair can use the fishing platform. There also has to be maneuvering space on the platform for a turning radius. The last of the recreational facilities I will mention is shooting facilities. What the requirement here is that if a shooting facility has firing positions that at least one or at least 5% but at least one of them has to have a circular turning space of 60 inches and a slope that is level slope. So let me just mention a couple since I know we have some state and local government officials out there, there are a couple provisions that are new in terms of state and local government. One deals with judicial facilities and these standards for the first time make clear that there, gives meaning to the integration requirement of the ADA by requiring access to witness stands and jury boxes. It also requires accessible holding cells and if different holding cells are provided for adult males and adult females and juvenile males and juvenile females that each one of those types would have to have accessible holding cells. I would like to note for you, there are a number of questions on this area, particularly the issue of accessible witness stands. If you go to our cost benefit analysis which is on our website, the regulatory impact analysis points out that the cost of making, our estimate of the cost of making witness stands accessible is over $300 million during the life of the regulation. Now, if you look at our cost benefit analysis, we tend to look at the cost and the benefits and we as much as possible try to monetize benefits. It is very hard to do in some areas and here it is very difficult to do and so it is an area that looks like there are a large number of costs with very small number of monetized benefits. We have said in our regulation and in the regulatory impact analysis that we still think this is important to do but we ask questions about it, questions one, two, and four, especially so if you are interested in this issue, I draw your attention to them. We certainly believe that allowing a person with a disability particularly those with mobility disabilities to be able to testify in a court trial in the same manner that everyone else does, not only does it provide them the same dignity as other participants in our legal system but it also allows the judge and the jury to be able to see them in the same manner as everyone else and so we think that is important, but we ask questions about it because it appears to be one of those areas where there is a large cost without monetized benefits attached to it. Another area in the Title II area are detention and corrections facilities, and the standards say that 2%, but at least one jail cell shall be accessible in new facilities. It also says there are specialized cells like cells for protective custody or alcoholic detoxification, medical isolation that at least one of each of these special types shall be accessible. We ask a question about this in the Title II regs is Question 45 because we are concerned about whether 2% is the right number. We have noted in especially in our enforcement efforts in the jail and prison area that the prison population is aging, a number of prisoners are, who weren''t disabled when they went to the prison are because just they are serving life sentences, and so we are asking questions about whether 2% is the right approach, and if not what is the right approach? We also have some new regulatory language which I won''t go through in too much detail, but basically, it is regulatory language on the integration of prisoners, and it is based somewhat on our experience, but it really looks at our view of program accessibility in the prison context and our view that prisoners should not be placed in an inappropriate classification, security classification because their security classification doesn''t have accessible cells, or that they shouldn''t be put in a medical area because there are no accessible cells in the rest of the prison. There are other issues of that nature. If you are interested in these kinds of issues, I direct your attention to the preamble and the regulatory text to give us your comments on that. The other very specific provision deals with alterations and the Access Board left for us the determination of how, when a prison is making an alteration, it should make its jail cells accessible and what we have suggested as our approach is that when a prison is making a series of cells accessible, it has an obligation to make the right number of those cells accessible, but we have given them the flexibility to not make the exact cells that they were making accessible but to make any cells in that prison area subject to certain conditions accessible. The idea here being that most of the prisons we know of are pretty old in this country and we didn''t think it made a lot of sense if they were in a totally inaccessible part to make a couple jail cells accessible when those jail cells didn''t have access to the education programs, exercise facilities, religious facilities, and so we are proposing to give the prison officials the flexibility to make the right number of cells accessible subject to the conditions that they will be provided the same kind of access that they would have been had they been in the area where the other cells are being made accessible. Okay. Let me move to an area that I know is of interest to you and that is, we have been talking really about the new construction and alterations part of these. One of our duties under the ADA is to not only apply these standards to new construction and alterations but to the existing built environment, whether we are talking about the concept of readily achievable barrier removal under Title III or program accessibility under Title II, the standards we are adopting have meaning for entities that are covered and they have to apply them in some way to the existing environment. And in looking at this issue, we have at the department, have tried to strike an appropriate balance between insuring that people with disabilities are provided access and limiting the potential unnecessary cost burdens on covered entities and the sort of same balance of quality and cost that really runs throughout the ADA itself, and so we have proposed several Safe Harbors for comments and we expect that there will be robust comment on these by all people interested. I will go through them. The first one, the first Safe Harbor is what we are calling Element by Element Safe Harbor. And what we are talking about here is if we have a covered entity, that has complied with the existing standards, the issue is should they be required to make changes because the new standards have an incremental change? And what we have said is that we didn''t think that was appropriate and so we have given a Safe Harbor so let me give you an example because that may not be terribly clear. The side reach requirements on the rule which deals with say light switches at a hotel or light switches anywhere, other devices of that nature, under our existing standards have to be at 54 inches. Under the new standards we are reducing that to 48 inches. The question that we were pondering is should we make an entity that has complied with the existing law, move their light switches to 54 inches, should they have to now go back and redo that, and our determination is that if they have done it, they don''t have a readily achievable barrier removal obligation to change it. Now, if they do an alteration or if we are doing new construction, of course they have to go to 48 inches. Also, if we are dealing with an entity that has never moved their light switches and they are 60 inches, their obligation to move them would be to move them to 48 inches. So that is one Safe Harbor. Another Safe Harbor is what we are calling Qualified Small Business Safe Harbor and again keep in mind this is just for purposes of readily achievable barrier removal, it is not for new construction or alterations or any other issue, but the idea here is to deal with small businesses and by qualified small business, we mean a business that meets the definition that the Small Business Administration of the federal government has determined and now we have cross referenced their regulations. They have different categories for different types of businesses and for most of ours, we are talking about and it is done in terms of the revenue, and so for most of them, it is businesses that have up to $6.5 million a year in revenue, so if you are one of those businesses under this proposal, you would be eligible for this Safe Harbor and this is how this Safe Harbor would work. The idea would be if a covered business spent 1% of its gross revenues on accessibility, we would deem them to be in compliance for that year with the barrier removal obligation , so say you have a business, say it is not as big, say it is a $3 million a year business, and they have $3 million in one year, the next year they spend $30,000 on making the restroom accessible. Under this proposal, for that year, they would be considered in compliance. Why have we suggested this? We have done this at the request, the business, the small business community particularly requested this. It was partly a response, they were looking for bright lines to comply with the ADA. They were also looking for a response to drive-by lawsuits. We looked at it very carefully in terms of was this an appropriate interpretation of the words of this statute and here we are talking about what readily achievable barrier removal means because there is a cost limitation already in the ADA itself, we thought that we could put this forward as a proposal. I have seen some, this proposal has already drawn some fire from those in the disability community. I would urge everyone to take a close look at it and give us their comments on it. I think our own enforcement experience is a lot of businesses have not been spending very much money on ADA enforcement and if businesses across this country would spend 1% of their gross every year, I think in a very few years, we would be in a very different place in terms of accessibility of small businesses to people with disabilities but we are fair game for your comments on that one and let us know what you think. There are, those are sort of across-the-board Safe Harbor. We have a couple of additional areas for the play and rec rules. These are new requirements so they are different than the Element by Element Safe Harbor, but we have proposed reduced scoping for play areas and swimming pools, and ask for your comment on whether we think this is appropriate. If you are wondering why we are doing this, it is because of the cost implications of complying with the ADA. One is that entities that have pools that are over 300 feet and now remember we aren''t talking about new construction or alterations. We are talking about existing pools, that if you are over 300 feet you would only have to have one entry, not two. And if you are under 300 feet, you would be exempt from the requirement of having an entry into it. For play areas, there would be the ability to substitute some ground equipment for making elevated play equipment accessible. There would also be an exemption for small playgrounds, meaning playgrounds that are less than a thousand square feet, they would not have to meet the specific new requirements. Keep in mind that even with these exemptions, a play area that is less than a thousand square feet would have to meet our existing requirements which means that they would have to have an accessible route to the playground and some play equipment that children with disabilities can use, and in terms of the swimming pools you would still have to have an accessible route to them. That is it for the sort of Safe Harbor part of this. Keep in mind that the Safe Harbors are for program accessibility and readily achievable barrier removal. Okay, the last part I will go through a couple of the issues that we have put in the regulation based on our enforcement experience. We saw this as an opportunity to address areas that were either confusing to people or where we have had considerable enforcement experience and come up with solutions that we think are appropriate. I will go through a couple of these. One is the area of ticket sales. We have had over the years a number of investigations, some agreements, some consent decrees on ticket sales for accessible seating. And so we have done specific provisions. What we are basically saying in the rule is that ticket sales for accessible seats have to be available during all stages of the ticket sales whether it is pre-sales, promotions, lotteries, wait lists, general sales, however you do it and they have to be available during the same hours, the same methods of distribution and the same types and numbers of sale outlets as other patrons. We are putting an obligation on ticket sellers to identify their wheelchair seating and companion seating in their brochures and other activities and we have some specific requirements for season ticket and multi-event sales, meaning you have to sell wheelchair seats, accessible seats on the same terms and conditions as others and if you allow a secondary market that is, you know, a lot of people will buy season tickets but give them to their friends & associates, that you have to allow people with disabilities the same access to the secondary sales market, whether they are the ticket seller or the ticket buyer. We have some specific provisions on the hold and release of tickets. Basically, we say that you can release and sell unsold accessible seats to any person under certain conditions, and we give three conditions as possibilities. One is when all, when there is a sell-out of all of the seats in the arena. Another is if there is a sell-out of all of the seats in a certain designated area or the third is if there is a sell-out of all seats in a particular price range, and those have been how we have approached it in our agreements, we have tried to put that language in our regulations. Finally, on ticket prices, we have made it clear that there can be no extra charge for accessible seats and that you should have accessible seats at all price levels and now we know that especially in some existing venues that is not possible because they don''t have either because of the nature of the facility, the older facilities, may not have accessible upper levels, but then in that case, we have said that people with disabilities should not have to pay the higher ticket prices because of the existence of architectural barriers and we have suggested a formula that some of the accessible seats and proportion of the accessible seats in these types of arenas should be available at lower ticket prices. Again, not a new concept in our enforcement but a new one in terms of our regulation. One area in the ticket area that I hope you will spend some time looking at because we really would like your comment on this particularly is what we have talked about, about purchasing multiple tickets in group sales. It has been our experience that most ticket sellers will only sell a wheelchair user or a person with a disability one companion seat which is really operated unfairly for groups of people who want to sit together, when one of the party is a person with a disability or even families where you may have a parent who is a wheelchair user with two kids who can''t really go to an event and sit together, and so we have proposed that a wheelchair user should be able to purchase at least three companion seats that are together as long as they are available and if they are not available then the seats be as close as possible to them, or even large groups. I am interested comment on this because obviously, if a number of companion users are sitting in the accessible sections, it will decrease the availability of those seats for other patrons who are wheelchair users, and we are interested whether you think our approach is the right approach or there is some other approach to that. We also deal with in general terms with the issue of prevention of fraud. We certainly do not allow ticket sellers to require verification that people are people with disabilities. They don''t have to provide documentation. We had said that they can ask the person who have buying a wheelchair seat if the person uses a wheelchair and if they say yes, that is the end of the inquiry and with what we are proposing here is that with season tickets they can ask the person who have buying a season ticket or a multiple event ticket to attest in writing that the tickets are for a wheelchair user and we also say that then the ticket seller can investigate potential fraud and abuse. We continue to ask for comments on that as well. Another area, hotel reservations. An area where we have had a lot of complaints over the years where people with disabilities not being able to get to accessible rooms so we have specific requirements that hotels have to provide reservations during the same hours and the same methods as made available to everyone else. If they guarantee rooms then they have to guarantee accessible rooms and they must be able to describe for a patron who is renting a room the particular accessible features of rooms so that a person will be able to know that if they want a room that has a roll-in shower that in fact they are reserving a room that has a roll-in shower. Another area where we have made some changes as well as made some specific regulatory language is in the area of service animals, an area that I know whenever I have spoken to you in the past there are always service animal questions. We have, are proposing to change our definition of service animal. As you know, right now, service animal is really any animal that is individually trained to perform tasks for a person. We are keeping the performed tasks for a person and the individual training requirements and are not being changed but we are changing or proposing to change the species that are eligible to be service animals to any dog or common domestic animal. That would end up excluding reptiles, rabbits, such farm animals as horses, ponies, miniature horses, pigs, and goats, and spiders, rodents, animals of that area. We have also tried to make clear, there has been some misunderstanding that our regulation as it now exists only applies to people with physical disabilities. We try to make it clear that there are psychiatric service dogs that are required by our proposal and we have made that clear, although we also continued our policy of saying that animals that are comfort animals, animals that just provide emotional support that are not trained to perform a test for someone are not in our view required to be allowed into venues because of the ADA. The kinds of tasks that we have tried to go through tasks that we think are the usual kinds of tasks that are there, guiding individuals who are blind or have low vision, alerting people who are deaf to sounds, to the presence of people, pulling a wheelchair, fetching items, assisting someone during a seizure, for people with psychiatric conditions, reminding them to take medication or acting as a brace in an anxiety attack, guiding people away from situations that have been trained to recognize as stress inducing. I mean, these are all kinds of tests that we think are appropriately covered. The emotional support issue is not new in our policy but is new in making it specific. I should point out to you I think some of you realize that this is a different policy than HUD follows under the Fair Housing Act and that the Department of Transportation follows under the Air Carrier Access Act. We think the nature of the difference between the activities covered there than just going to a grocery store or a hospital are a reason for having different approaches but again, we ask for comments on them. In case you are all, I just have one or two items before we open this up for questions. One is the whole issue of what is a wheelchair, what are other mobility devises, how are they involved, and especially the issue of segways. We have defined for the first time in this proposal what a wheelchair is and said that if something is a wheelchair, an entity covered by the ADA can''t refuse it admission to their facility. We also then have tried to define what we call other power driven mobility devices, and these would include certainly a segway, but also bicycles, golf carts, ATV''s, other devices that a number of which were not designed specifically for people with disabilities but have been used by some people with disabilities, as a mobility device. We have tried to say that these should be covered under the ADA''s provision for reasonable modification of policies and practices so that these devices might, you know, in most circumstances in our view should be allowed into private entities but we suggest that entities come up with policy about how they will deal with them. Let me give you, I guess the common examples that we have received comments on are from the cruise ship industry, from a crowded amusement parks, from crowded retail stores, or during Christmas shopping season, for example, the idea being that because some of these devices are larger or go at different speeds or because they are often used by people who aren''t people with disabilities and they can''t recognize who is using them for a person with a disability because of their disability or just because they like using them, our proposal in this regulation is to allow these entities to come up with a policy, and the policy may be that, now, the policy may be that they are allowed just like everyone else, other wheelchairs, because of the nature of the facility or the policy may be that that because it is a device that goes faster than six miles an hour, that they have to be restricted to six miles an hour. This is an area that has already if you go to regulations.gov and look at the comments we have received, we have already received a number of comments on this issue and that is partly because segways are now being used by returning Iraqi war veterans whose have been wounded and who have prosthetic devices, as their mobility device of choice, and it is I think the view of those that they should be allowed in everywhere else just the same way that wheelchairs are, so we look forward to your comments and I am not sure we will get more on that particular issue. Finally, I want to mention the regulatory impact analysis, I know that some people have asked me why we have done that at all. Is it really an appropriate thing to do in a civil rights statute? All I can tell you is that we are required by federal law, and executive order, to do that, and we have hired a contractor to do an analysis and the analysis is really quite detailed. We have tried to be as transparent about it as we can, and it deals with the cost of new construction, alterations, and barrier removal, and we do it by requirements, there are 112 categories of requirements, we have cross-hatched it by facility types, there are 110 categories of facility types. You come to the bottom line, in our view, and this regulation, the benefits far exceed its cost, even though the costs are high. So if you will bear with me a little bit in economic jargon, because there are different discount rates, but if you use the higher, the 3% discount rate, the benefits of this rule would be almost $54 billion and the cost would be just about $23 billion, so we are talking about costs, benefits that exceed cost by $30 billion so in our view even though the costs are high, this rule is appropriate because the benefits far exceed the cost. And at a 7% discount rate to both the benefits and costs are down, the costs go down to about $12 billion, and the benefits are at about $20 billion, so it is $7.5-$8 billion where the present value of this regulation in discounted terms is of benefit, so that it is in our view, appropriate rule making under the standards we have to follow under regulatory impact analysis, and if you wonder why we have the Safe Harbor that we do, part of the reason that we are able to have a rule that has in our view, significant benefits over cost is because of the implication of the Safe Harbors that are there. But we certainly invite you to look at our numbers, to look at the assumptions, about how we figured cost, about how we figured benefits and one of the problems that we have is that it is very difficult to monetize benefits when you are talking about a civil rights area. Certainly, we can see the increased benefits that will come from increased uses of playgrounds when they are finally accessible to people with disabilities. Both the benefits to the person with the disability or the family member of someone with the person with a disability, or the reduced savings in time that a person with a disability will have for being able to use these facilities. Before I turn it over to you, let me see if there is, I didn''t mention one area of in the service animal area, one area that is already caused some interest, when we did our rule in 1990, we did include monkeys and service animals and this rule would not do that, that that has already caused some comment by people who have relied on the use of monkeys, so we ask for your comments on that. We also ask, we have been asked whether it would be appropriate to, for lack of a better term, grandfather in people who have relied on our earlier guidance and are now using monkeys whether they should be able to continue to use those. Two issues that I didn''t mention, or three that I will mention. One of the requirements that we have added in this rule is that in stadiums that have over 20,000, 25,000 seats that we would require that emergency notifications be provided in ways that are accessible to people who are deaf or hard of hearing, and we ask for questions about that whether it''s appropriate to do that in stadiums that are smaller than 25,000. We also ask for questions on captioning of movies and audio description of movies. I think most people are aware that because of the legislative history of the ADA, we have not required open captioning on movies. Nor have we ever really required audio description on general movies. But certainly, we have done both of those in more limited areas. We ask for comment on that, particularly because of the nature of how movies are being produced in this country is changing, as we go to digital formats, sort of the rear window captioning version that we have used at Disney World and other venues in our settlement agreements, may not be appropriate and so we are asking for people to provide us their comments on what they think the regulation should require in both of these areas and how it should proceed. That is I think probably more than you ever wanted to hear and a little over an hour on what is in our rules. Why don''t, Peter, we turn this over to the people who are listening and so we can try and respond to their comments.
Absolutely. A lot of information, John, thank you. If we could bring the Operator, John, back to give instructions on how individuals can get in the queue to ask questions, please?
Sure thing, ladies and gentlemen, at this time if you do have a question or comment, please press the 1 key on your touch tone telephone. If your question has been answered or you wish to remove yourself from the queue, you can press the pound key. Once again if you do have a question or a comment please press the 1 key at this time.
While we are waiting for our first question, I just want to remind people if they could limit their questions to one and if you want to get back in the queue and ask another question, that will allow as many participants to ask their questions as possible, and obviously the focus of todays session is on the proposed changes to the Title II and Title III regulations. If you have questions regarding enforcement efforts or other initiatives that the Department of Justice is currently working on, that will be covered in next Tuesday''s audio conference session, ADA Update. And John, while we are waiting for our first question to come in, we have received a question electronically, and it is dealing with the issue of Safe Harbor and the 1% gross revenue. And this comes from an individual who wants to know, would an individual, you know, prior to filing a complaint need to have information regarding the business and whether or not they have met their 1 % for that particular year prior to filing a complaint with the department?
No, I think complaints that we receive would still just have to state that someone was denied access to even a small business, it would be our job in investigating the complaint to see if the Safe Harbor applied to them. I would not expect that to be a feature that would be, it is really a defense for the business to an investigation by us.
Okay, excellent. May we have our first question, please?
Our first question.
Go ahead, if using a speaker phone if you could pick up a handset or move as close as possible to the speaker phone when asking your question. Go ahead.
Okay, thank you. My question is on cruise ships. As a person with a hearing loss, can I request captioning for show performances on the cruise ship?
You can do that now. That is not a change from our existing regulations. A cruise ship is an entity that is covered by the ADA and they have an obligation to provide effective communication for people with disabilities. Of course, it is subject to the undue burdens and fundamental alterations, but I don''t think those would ordinarily apply so that is something that is covered now.
Excellent. May we have our next question, please?
Thank you. Our next question.
Hello. I am going to have, ask the question. He is sitting here with me.
Yes, I think that audio description and open captioning is as essential to having a movie accessible or another event accessible as it is for any other kind of seating because in fact if a person can''t see what is going on in the screen if they don''t hear it or if they don''t have a caption, essentially the movie isn''t accessible to them and I think it is very important that there be stronger rules on both OC and audio description.
Okay, thanks, very much. I should point out, you know, anyone should feel free to send any of these comments to us, on regulations.gov, but I will also point out that we will have a record of this audio conference, and we will put those comments into the record of the rule making itself.
Excellent. Our next question, please?
Our next question.
Go ahead with your question.
Hi. We are here, and have been hearing that there is going to be a change in the definition of a person with a disability, and you have not addressed that. We have not seen it but yet have heard a lot about it. Can you respond to that?
Yes. It is really amazing but going on concurrently with our regulation is an attempt by Congress through the efforts of the disability community itself, and business, to write a new definition in the ADA of a person with disability. The House passed a couple weeks ago 402-17 a Bill called the ADA Amendments Act that would have, that does seek to change the definition of disability. It is being considered by the Senate, it is truly totally separate from this proceeding, and we are watching that to see what happens with it, but it is parallel to this. If there is an amendment to the ADA that would require us to go through a regulatory process, we would be doing that after the law passes.
In as far as the Amendments Act, the ADA Amendments Act of 2008, stay tuned to the audio conference series, because we will have an audio conference if and when that bill is passed and signed. May we have our next question, please?
Our next question.
Hi. I was curious if the definition of the place of public accommodation is incorporated into these proposed changes, specifically the courts interpretation as to having a physical space involving litigation with websites or insurance discrimination. If it is not a part of it and that is something we can make a comment, it should be a part of it.
The, first of all, as to your second, you can make any comment on these rules, whether there or not there in terms of what you would like us to do. This is really a chance to have your views aired. We have not changed that definition so that definition would remain. It is certainly the Departments view that placeness is not required for places of public, that public accommodation, that there needs to be a facility, but we have taken the position in the past that websites of state and local governments or covered entities are covered by the ADA. We know that this is a matter of disagreement in the courts but thats been our position and if you want to comment on how we should approach that, we would be delighted to hear what you have to say.
Thank you.
Excellent. May we have our next question, please?
Our next question.
Go ahead with your question.
Actually, my question has been answered.
We will go with the next question.
Yes. Numbers of people with chemical sensitivities have commented at Access Board hearings a couple of years ago regarding access to golf courses and parks because of pesticides, or pools because of chlorine and so forth, and I was wondering if any of these environmental access issues are covered in the proposed regs?
We have adopted what the Access Board has required. I cannot think of a specific requirement in the standards themselves that addresses that issue. If there are particular issues that you think we should be dealing with in terms, especially specific issues, the kind you related to in terms of golf courses and others, we would be happy to have those comments framed. That is not an issue that we have addressed specifically in these rules.
What is the phone number for scheduling [inaudible]?
It is our ADA Information Line, which is 800-514-0141.
Thank you very much.
Thank you. Our next question, please.
Your next question.
My question goes back to the Safe Harbors which a question was asked on. This is as to that rule of 1% of gross revenue; how was that arrived at? I am specifically thinking about it is not really consistent with the tax credits presently in effect that use the $1 million limit for small businesses.
Those are excellent, both parts of that are excellent questions. The way we envisioned this working is that, in the year that we are looking at, you would look at the gross revenues from the year before and say 1% of gross. I can tell you that when we looked at, and we asked for a comment, did we pick, is 1% right? Is gross revenue right? We did look at the standards that are there and thought about using the standards from the ADA in terms of either the tax credit or rather parts of the ADA, but there is a federal law that gives to the Small Business Administration authority to determine how small businesses are determined and we are following that law and their guidance on that issue. If you would like to provide us with comments on other approaches that we should be using, we would be happy to hear what you have to say on that subject.
Thank you.
Before we get to our next question, why not get one in here, John, that was submitted electronically. And the question involves accessible hotel rooms, and whether or not the issue of bed heights are being addressed, or hotel rooms or beds that are set on a box or block on the floor that prevents the use of a transfer lift.
Peter, we have not specifically addressed that, although I have been asked that question recently, and both of those are issues that we are interested in. We are familiar with the problem of higher and higher bed heights, and if people would like to provide comments on that issue, I think we have been told that perhaps in the accessible room we should have a requirement for what an accessible bed height is, and similarly the problem with boxes and their interference with the use of Hoyer lifts is something we are aware of and we would, I think, are appropriate areas for us to consider in terms of rulemaking.
Great. May we have our next question, please?
Our next question.
Hi, John. I too have a question about the 1% of gross revenue because we have been doing a lot of advocacy around the disproportionality rule in the alteration, been able to get some businesses to understand that if they have already done alterations they should have at that point spent the 20%. So what if an entity is doing renovations now, in the process of doing renovations, and we have told them, well, you have to spend 20% of the amount of those renovations in order to make your place as accessible as possible, following the priorities in Title III? And if that 20% of the renovations is going to exceed 1% of their gross revenue, how are we supposed to, which is going to be morewhich are they supposed to follow with these regulations?
Thanks. Let me be clear that they are totally different requirements. The 20% path-to-travel rule comes from an alterations, that rule is there and if any entity is doing an alteration that effects the primary function area, they are required to spend at least 20% of the cost of the alteration on making the path of travel or restrooms or telephones or surfaces to it accessible. That is different than the 1% Safe Harbor only goes to barrier removal, only goes to what they have to do independently of doing alterations that they''re doing, so they are totally independent of one another and the fact that a business has done an alteration and spent 20% doesn''t discharge any of the readily achievable barrier removal obligations. They would be obligated if they wanted to take advantage of the small qualified small business Safe Harbor, they would have to spend the additional 1% on barrier removal to do that. And maybe that is not clear from what we have said in our proposal but that is certainly how we intended that to work. So we will have to, I mean you should certainly send us a comment on that, but that is our intent.
Great, thanks for the question. Along the accessibility lines, another question submitted online dealing with the current standards, current enforceable standards for accessible design require that one out of every eight but not less than one accessible parking space be van accessible and the proposed regulations by ADA standards for accessible design are going to require that one out of every six accessible space but not less than one be van accessible, and will that fall into the category I guess of the Safe Harbor where an entity was complying with the enforceable standards at the time and wouldn''t have to meet this higher threshold until they are altering their parking lot.
Yeah, the way that we look at the answer is yes, it would fall into that Safe Harbor, the way that we look at the Safe Harbor, the Element by Element Safe Harbor and is that any of the changes in the standards that are incremental, would not, the Safe Harbor would work for barrier removal so they wouldn''t have to go back and just change that because of the barrier removal obligation or the program accessibility obligation, if they were doing alteration to their parking facility, whether it is a garage or if they are building a new one, they would have to do the one in six but they would not have to do that for an existing one where they have complied with the one and eight. If they have not complied with the one and eight, they would then have to now do it in one and six.
Excellent. Excellent. May we have our next question, please?
Our next question.
Go ahead with your question.
Excuse me, one second. Please come back, one more minute.
Okay, I will go with our next question.
Go ahead with your question.
Yes, this is specifically in relation to captioning. What I understand is Paramount is now providing embedded captioning upon release but from what I understand they are the only ones that do that so far and there are not enough films that are captioned and from what I understand that there are some theatres that offer Spanish in captioning at the bottom so I am just curious to when that is going to be required for all producers to provide captioning from the very beginning.
Well.
It is really just a comment but I really think there is such an incredible need there.
Yeah, because of the way the ADA is written, it applies to the theatre owners, it does not apply to the producers of movies. So that there is not a direct legal obligation from the ADA to Paramount or other producers of movies to caption them. What we are asking about for comment is whether there should be a requirement in the ADA that theatre owners who are showing movies have an obligation to show captioning for the movies now. The idea behind that is that although the direct obligation falls on the theatre owners that would eventually, it would work its way to the producers but we do not have a direct legal tie to require producers to do that. I think you are right that there are a number of, there is movement in this area, but there is also I think the movement toward it has been episodic in certain parts of the country and hasn''t been done uniformly and our question is whether we should be requiring that, and so we are hoping that we will get comment from all, from producers, theatre owners, and people with disabilities on that subject.
Okay. May we have our next question, please?
Thank you. Our next question.
Hello, and my question is this: While we haven''t discussed this today, I was wondering if at any point we were going to be discussing issues that center around post offices and other federal entities that feel as if they do not have to adhere to the ADA and/or the Access Board?
Peter, I am not sure if that is a question for you, although post offices are certainly covered by a number of federal laws, that is certainly another subject, but post offices, new ones certainly are required to be accessible under the Architectural Barriers Act, and existing ones have program accessibility requirements under Section 504, whether the ADA centers are going to do something on that subject, Peter, it is up to you.
Yeah, I would encourage you to contact the regional ADA Center that serves your area by calling 800-949-4232 to get more information about the statutes that do apply to existing and newly constructed post offices. So, thank you. May we have our next question, please?
Sure thing. Our next question.
Go ahead with the question, please.
Okay. My question is, in the area of hotels, are they required to have strobe fire alarms in the hotel rooms for the deaf, hard of hearing and late deafened adults?
Um, under the, well, under the new standards, and new construction, they are required to have, well even our existing standards require them in new construction to do that. The problem we have had with that over the years is that if you have an existing facility, the barrier removal obligations for linking that to the existing system hasn''t worked very well and so the way these standards approach it is for new construction to require that there be accessible, meaning accessible to people who are deaf, alarm systems but they are not requirements under the new standards in terms of alterations, or in terms and because of that, in terms of barrier removal and the reason for that is the difficulty in linking the accessible fire alarm system to the wiring that exists. Janet, do you want to add to that?
Yes, the one thing that I would add to that is in the alterations, if the hotel alters its wiring system, it then is required to upgrade and put in strobe alarms but it does not have to try to attach strobe alarms to an existing older wiring system that won''t support them.
All right, and our next question, another one submitted online in the area of the ADA proposed standards, and the questioner wants to know about the reduction in the number of wheelchair seating locations and how that, you know, corresponds to the requirements for the number of accessible parking spaces and the point of I guess the questioner is making that the number of accessible parking spaces will remain the same for larger venues over 5,000 seats, but the number of accessible wheelchair locations will go down.
Well, I have to admit that is a very astute observation that I had not myself made. For those of you who are not familiar, it was one of the changes in the proposed standards is that for larger arenas, arenas over 5,000 seats, the number of accessible seats in the Access Board guidelines which we are adopting would be decreased, really by half a percent at the upper reaches. The reason for that change was that there was evidence presented to the Board that these seats were not being used and therefore there were a number of accessible seats that were always going [unintelligible]. Nobody ever made the link to parking although large parking areas and the parking numbers have stayed the same, and that, maybe that is an anomaly, it is certainly not anything that has been brought to our attention or that we have recognized ourselves.
Okay, great. The may we have our next question, please?
Our next question.
Good morning, good afternoon. Actually, and my question comes from our experience over the last week when we worked at the Olympic trials, and we had accessible seating but we had a number of people who used either wheelchairs or other mobility devices who wanted to transfer to a regular seat, not using accessible seating, and then they had no place to store their wheelchair or their other device, and I am wondering, has any thought been given to requiring some sort of storage space for people who are in that situation?
It is nice to hear your voice. We have in the past, in enforcement actions required stadiums to allow those people who wanted to transfer to transfer to existing seating and required them to store devices and to have personnel available to retrieve the devices from when the person needed them, as these issue have tended to come up more in smaller arenas, with performance, with dramatic performance arenas, so I don''t think it is an unusual requirement, but I think your comment goes to whether there should be some storage facility required. I think that is an interesting issue. I think maybe you should provide a comment that is one of the, you know, that brings to mind one of the Segway issues that we have heard from small restaurants is the storage issue and maybe those are things that we have to address in terms of how facilities are designed, but that has not traditionally been a part of design of assembly areas, and that is a good comment, but in terms of the ADA now, I think there would be in our view a requirement for the organizer of the event to provide that service to people with disabilities.
All right. Thanks for the question. May we have our next question, please?
Our next question.
Hi. The issue of ticket sales that you brought up before, and we have dealt with because the county actually owns [unintelligible] Square, or we just +9lease it out that we deal with them on ticket sales and reservations and seating for persons with a wheelchair, and if you are saying that I was looking at the guidance while we were waiting for you to get this up, and it says that you have three options for selling those spaces but if say in one of our facilities we have a row with an area across it and there is a number of seats and each one of the seats is covering a different price range for the facility because say the whole second level of the facility is not accessible, so say the second level sells out, would that seat that is on the first level that is at the price range of the second level have to be sold or would it still be held until the very end?
That is an interesting, this is John Wodatch, actually, that is an interesting question that we have not given thought to. I think you should, I will think about that. I don''t have an easy answer for you right now, because there are really two principles going on there, part of I will give you what my first impressions are of that and one is that unless people with disabilities knew that they could get, you know, a seat at the cheaper price, maybe they would have asked for one but on the other hand it''s a first come first serve kind of thing. We will give some thought to that. And I would hope that you would provide that to us in a comment.
Yeah, I had a meeting with them just a week or so ago to deal with it because it was a change in their Management and whoever took over was messing up the ticket sales for persons with disabilities, and I liked it that you include it they have to put it in a brochure and there is a plus-or-minus to that because if you do put it in a brochure, more people will attempt to buy those tickets who may or may not be qualified but that''s still another issue.
Yeah, thank you.
Thanks for the question. Along those lines, John, another question that was submitted electronically, wanting to know if the proposed revisions to the regulations deals with the issue of individuals that need personal care attendants to attend events, concerts, where venues charge for tickets and whether or not venues would have to waive the ticket price for personal care attendants.
We have not addressed that issue in this regulation. We would be willing and certainly interested in comments that we could get on that.
Excellent. Excellent. Next question, please?
Our next question.
Hello?
Go ahead with your question.
Hi. A question, John. You spoke earlier about the Safe Harbor for the qualified small businesses. Are there provisions in for Safe Harbor for larger Title III entities who have already performed readily achievable barrier removal based on the existing requirements?
The only one that would apply to them really is the Element by Element one which would apply to the incremental changes in the standards and that applies across-the-board, whether you are large or small.
Okay, so they would really need to have been able to have tracked all of the renovations, all of the alterations that they have made under readily achievable barrier removal, document those and then be able to use that as part of the ADA compliance plan?
That is right and it is Element by Element so it would apply if they had done their light switches, then that would take care of the light switches.
Right. Okay, great. Thanks, John, good talking to you.
Thanks for the question. Can we have our next question, please?
Our next question.
Go ahead with your question.
Are you there?
We have a question. Are you online? Okay, we will go to our next question.
Hi. John, great job that you and your staff did. I had a question about whether the 2004 ADAAG is sort of going to be sacrosanct, whether some of these changes will be interweaved in it. I guess my concern is so much scoping is going into regulations, so scoping in the regulations and scoping in the standards.
Um, that is an excellent question. I can''t predict how that will work out, although questions 1- 8 deal with that issue to a certain extent. I think our view would be if we end up based on the comments seeking, going to something different than that is in the 2004 ADAAG, our approach would be to go back to the Access Board and work with them on changing that because of the reason that you are talking about, because a number of people relied on them and we are also, one of the goals we have here is harmonizing what the Federal Government is doing, with what the private sector is doing under the IVC and what states are doing, and I think we''re very much aware that we are trying to come up with one standard to what an accessible facility is, as much as possible. And we realize that any changes that we make to the 2004 ADAAG or the IVC is something that will harm the fabric of that approach and we will try to do it in a way that will bring about change among them. Now, that doesn''t, there are also then things that might be , that we would add-on that might be in our own regs so for example, someone has raised the issue of bed heights in hospitals or in hotels, that might be something that we would regulate but that also wouldn''t be something that ordinarily would be in ADAAG, although I suppose the issue of the platform beds may be something in the fixed environment that they would want to deal with so there aren''t the additional things that over time might get incorporated into ADAAG itself.
All right, great. Thanks for the question. Next question, please?
Next question.
Hi. I have two questions. One on the sale of tickets and one on small watercraft. You mentioned that during the purchasing of tickets, it is okay for the ticket seller to ask, does the person use a wheelchair, who is purchasing the tickets and may I suggest also to defer or help defer fraud that that person asks the caller, do they have a wheelchair placard or a wheel symbol on their license plate? Would that be an acceptable question to ask?
You know, this is an area that the whole area of fraud and how much a person has to reveal about their disability has been a difficult one and we are interested in peoples comments on that. One thing we have suggested to ticket sellers is they print on their tickets that this ticket is for a person with a disability or a wheelchair user, and if you are not that type of person, you may be moved to another seat. Especially in Florida, there are ticket sellers that do that. We haven''t thought about that particularly. We would be interested the comment, and give some thought to that.
Thank you. Second question if I may, concerning small boats, under 150 feet, we know that small watercraft are covered under the ADAAG, but there are no specific guidelines on how to renovate certain aspects of a boat, concerning a specific boat, 100 foot boat that the owner said he would convert the bathroom and make it wheelchair accessible if he was assured that he could take a tax write-off. Well, he should be able to but he contacted the IRS and they refused to give him something in writing that would allow him to go to do that. Any comments on that?
Um, {LAUGHTER}, let me say, the IRS certainly, there is a tax credit under the ADA and a tax deduction for changes under the ADA. I think I am unfamiliar with how the IRS approaches that. I don''t think that they would give a promise of it before. I also think the Access Board is still developing standards on what are accessible both cruise ships and smaller ships, I don''t even know if they''re getting to the point of ships that are that size. I assume the ship you''re talking about is a public accommodation, is used as a public accommodation, is not just a personal craft, or is it a personal? Because if it is just someone''s personal use, the ADA might not apply to that situation at all.
Right. I think our caller has dropped. Okay. We can move to our next question, please and thanks for those questions.
Your next question.
Okay, I really was interested to see if there was any consideration of an educational setting and this online education and that there needs to be something that talks about people who are visually disabled and their access to online education and training. So, some type of verbal presentation?
Uh-huh. Thanks for that comment. We have not addressed it in this rule, we are aware of it and have been discussing those issues with the Department of Education in terms of its 504 responsibilities. If you have some proposals for us, we would be delighted to suggestions on how that might work. Certainly, in terms of Title III of the ADA, private schools are covered and have an obligation to provide their services an accessible manner and under Title II, state and local governments that provide educations have a similar obligation, but I think you are correct in your assessment that there has not been detailed requirements on that issue, and we would be anxious to see what comments you''d have for us.
Great. Thanks for the question. Next question, please?
Our next question.
Yes, my question was to seek greater clarity, please, regarding the distinction between comfort animals not being covered but that someone with a psychiatric or mental health disability could have a service animal. How does one distinguish that, please?
Okay, there are some guidance in the rules on that subject, and maybe we need to provide more of it but basically, we see the difference in two ways. The major difference is that a psychiatric service animal is an animal that is trained to perform a task. It is individually trained to perform a task for the persons with a disability and it just happens that the person has a psychiatric disability. Our understanding of an emotional support animal or comfort animal is not that it performs a task, it just makes the person feel good to have their dog with them and some types it is difficult to differentiate between what is a pet and what is a service animal. The other distinctions that I see is often in cases of people who use comfort animals, they are not people with disabilities as that term has been interpreted by the courts under the ADA, and so that we are not dealing with someone who has a psychiatric condition or a cognitive loss that would establish them as a person with a disability under the ADA and so therefore they are not entitled to go into a covered entity with their animal. We have certainly if you have suggestions for us, I have been asked this question a couple of times and I think it is an area that we know and if we continue this distinction, we are going to have to provide greater clarity on it.
Great. Thanks for your question. Can we go to our next question, please?
Sure thing. Our next question.
Hi, thanks very much for the presentation today. In looking at the way you present Safe Harbor and some of the exemptions from the accessibility requirements, I was struck by use of the phrase, balance between the interest of people with disabilities and the business communities, and my understanding was that the ADA was a civil rights law, and I am wondering if that balance between what has been termed "Interest" which I have always read as rights, and the business community has been applied in other civil rights settings, and if you could comment on that, please?
Well I will start by saying that with ADA itself, and I agree with you. The ADA is a civil rights law, but if you look at the ADA, just about every requirement in the ADA is balanced by limitations and the area that we are talking about where the Safe Harbors are is the area where the balance is probably most, you know, described in the statute because the statute says that for in the private sector, an entity has to remove architectural barriers if doing so is readily achievable, and readily achievable is defined in terms of ability to do it without much difficulty or cost. So, the concept of cost is in the ADA itself. What we have done with the Safe Harbor is attempted to give some bright line meaning to what the statutory term uses. Your direct question about whether there are cost limitations in other civil rights laws, I don''t think of the ones that I know, I guess with the possible exception of the Fair Housing Act amendments of 88 which deals with disability as well, I don''t know of any that deal with cost specifically but the reason that we are doing it under the ADA is the statute itself deals with it. It is the same, the effective communication requirement has a limitation of undue burden or fundamental alteration.
Just wanted to add to that, I guess the limitations of other civil rights statutes may not speak about cost but they are still limiting factors that exist in other civil rights laws so for example, if we look at Title VII, if a person wants to file a charge of discrimination under Section 707 of Title VII, they have to do so within a specified period of time, usually 180 days, and so there are limiting factors that mitigate against the ability of a person to actually file a charge for a complaint. You know, basically as opposed to under the ADA, if someone files a complaint with us, we don''t have that limitation under Title III, so it has always been some sort of balancing in the provision with the civil rights laws, just a matter of how you characterize it.
All right, well, thank you for your question and your comments. May we have our next question, please?
Our next question.
Go ahead with your question.
Yes, hi. Hi. I am one of the people that does benefit from a psychiatric service dog and I really appreciate the importance of service monkeys and horses. I think that it would be a real shame and a backstep for DOJ to cancel this out for people who utilize those because they do provide a wonderful service for people who have limited use of their hands and I understand that what we refer to as the mini-whinnies are good for people who are blind and who are allergic to dogs and they live twice as long as dogs. So, I would like to say that I hope those are not cancelled out, and that if they are, I am concerned about what would happen to the people who use those animals as service animals as well as the animals. I appreciate the fact that we are allowed to use psychiatric service animals and I think there is a real clear distinction between emotional support and comfort dogs, and psychiatric service dogs and I think you spelled it out very clearly when you said that it is the ability to perform tasks. I think comfort dogs are very clearly more aligned as a pet, and there are some states that do allow emotional support dogs, the same rights as the Federal Government allows ADA covers dogs with the same laws that the ADA does federally. So, it is important I think to know in each state what the laws are that cover you, as well as it is federally. Thank you.
Thank you very much for that comment, and I hope you will, I mean this will go on the record certainly but if you have other information about the value of service monkeys and miniature horses, we will be delighted to have them on the record. Thank you.
Thank you, our next question, please?
Next question.
Hello, I had a question about the requirements for roll-in showers in hotels. Does the ADA require or will the new regulations require a certain number of units with roll-in showers, because a lot of people with physical disabilities cannot get over a low wall in what is typically considered a handicap accessible room, bathroom?
That requirement is the same that is in the standards now, and hotels are required to have a certain number of their rooms have rooms with roll-in showers, and it is something that as we look at especially new construction issues and barrier removal issues, we are pretty vigilant about because we are aware as well, that there are a number of people with disabilities who need to have roll-in showers in order to be able to use the hotel rooms. In fact one of the reasons we have put in the regulation, the requirement that hotels tell people what the services are is that we see in a lot of complaints that we receive that people ask for an accessible room and think they are going to get one with a roll-in shower and then when they arrive at the hotel, find out what they are calling an accessible room does not have a roll-in shower, so the standards are the same. There is a percentage that it is, um, so that for example, a hotel that has 101-150 rooms would have to have five accessible rooms, two of those rooms would have to have roll-in showers, and the percentage would change depending upon the number of rooms in the hotel.
If a hotel does major remodeling, upgrading, are they required to follow that standard?
Yes, they are. And they are also in our view, if it is the issue of barrier removal also it becomes more difficult in terms of barrier removal because of the nature of how you install a roll-in shower but even in the absence of doing an alteration, it is certainly something that we would look at in terms of barrier removal obligation as to whether they should even without doing new alterations include a roll-in shower if it can be done without much difficulty or expense in terms of the size of the hotel.
Thank you for your question. May we have our next question, please?
Next question.
Go ahead with your question.
Go ahead.
John, I am a little bit concerned about the Safe Harbors on the existing pools. It is relative to the two means of egress or access. The reason that was put in is because where pools are regulated nationally, where regulations exist for pools nationally, usually for every 75 feet for pools larger than 300 linear feet, there is a requirement for a ladder. That is for people that can''t use a ladder, we have put in that recommendation many years ago for a secondary means of access and obviously egress, and for existing pools, there is the suggestion under Safe Harbors, probably not a good term but where that one may be eliminated. Could you comment on that?
Well, that is an interesting, what we are saying is for existing pools, so under the barrier removal obligation or under program accessibility, if it is a State or local government, if there were over 300 feet what we are saying is that instead of two, they would have to have one, and I understand your comment is an interesting one in terms of the requirements for ladders. But again, this was the thinking in terms of what we were doing was insuring that there was some, there was egress in all existing pools of that size, but limiting the cost of that by having it be one, which certainly would welcome comments on whether you think that is appropriate, especially in terms of other requirements that may exist nationwide for egress into pools generally. Or especially if there are, we use the 300 foot perimeter issue because that is what the Access Board used and if there was some notion that particularly larger pools, Olympic size pools which would be larger than that, if there should be different requirements or other pools we would be interested hearing your thoughts on them in the comment process.
Thank you for your question. Unfortunately, we are getting close to the top of the hour, and probably could have gone an additional 30 minutes with the number of questions. I would encourage those of you who did not get into have your question asked that you participate in the public comment process and John, do you want to give folks that information again, how they can submit public comments?
Yeah, I think the best way is to go to, you can do it online at regulations.gov. There is a process there and you can file detailed comments or, you know, three lines of comments. It doesn''t have to be an elaborate thing if there is one issue that you care about or one point that you would like to make you can go to regulations.gov and provide us that. If you want more detailed information on how to do this, go to our website, ADA.gov, you will find the copies of all of our documents there. I would also, I don''t want to compete with you Peter because I know you are doing an event next Tuesday, the 15th on an ADA update and the same time we will be having our public hearing and if you either want to testify at it, you can call our ADA information line to register for that or you can tune in and watch the proceedings on the web.
Excellent, John. As John mentioned information on the ADA.gov, you can also get mailing addresses if you wish to submit the comments the old fashioned way through the U.S. Mail or send your comments overnight through our, to two separate addresses on the Department of Justice website, click on the " What''s new " link off of the ADA.gov homepage. Well I want to thank John, Loretta and Janet for joining us today. There was a whole host of information. Again, if you did not get your question or comment addressed, please participate as John mentioned in the public comment process, or participating in the public hearing that is being held next Tuesday, July 15th. Also, taking place on July 15th will be the 18th Anniversary ADA Update and annual audio conference session and for the first time in a long while, unfortunately, John will not be able to join us because he is going to be busy with the public hearing, but join us as we will get an update on the activities of the Department of Justice as well as the Equal Employment Opportunity Commission, you can get information on that at the audio ADA audio website, www.ada-audio.org. Again remember todays session was recorded and a text transcript will be part of the public record on the Department of Justice''s rule making process as well as in 10-14 business days you will be able to access the archive of todays session both the audio archive and the text transcript by visiting the ADA audio website. I want to thank everyone for joining us today, and hope everyone has a great afternoon. Thank you.
Ladies and Gentlemen, this does conclude your conference for today. Everyone have a great day. You may now disconnect.