Submittal of Comments By CODAP

Submittal of Comments:
DEPARTMENT OF JUSTICE
Civil Rights Division
28 CFR Parts 35 and 36
CRT Docket No. 2004-DRS01; AG Order No. 2736-2004
RIN 1190-AA46 and 1190-AA44
Nondiscrimination on the Basis of Disability in State and Local Government Services;
Nondiscrimination on the Basis of Disability by Public Accommodatons and in Commercial Facilities

I. GENERAL COMMENT: The members of the Coalition of Disability Access Professionals (CODAP) respectfully ask that the Department of Justice to send the proposed new ADAAG/ABA back to the U.S. Access Board with a request that the proposed changes which decrease access by persons with disabilities to the built environment be deleted. They are identified at the U.S. Access Board Web Site, http://www.access-board.gov/ada-aba/reg-assess.htm as Chapter 5 Revisions That Reduce Impacts in the “Regulatory Assessment of the Final Revised Accessibility Guidelines for the Americans with Disabilities Act and Architectural Barriers Act. The items that decrease access for all Americans which are of most concern are:

5.3 Accessible Routes from Site Arrival Points and Within Sites

The current guidelines and the final revised guidelines require at least one accessible route to be provided from site arrival points to an accessible building entrance, and at least one accessible route to connect accessible facilities on the same site. The final revised guidelines add two new exceptions that exempt site arrival points and accessible facilities within a site from the accessible route requirements where the only means of access between them is a vehicular way that does not provide pedestrian access.

THIS PROPOSAL WILL DESTROY SAFE PASSAGE FOR PERSONS WITH DISABILITIES FROM THE SIDEWALK TO THE BUILDING. ALL AMERICANS WHO DO NOT DRIVE AND WHO RELY ON PUBLIC TRANSPORTATION OR WHO ARRIVE AT SITES VIA PEDESTRIAN WALKWAYS ARE PUT AT GREAT RISK BY THIS REDUCTION IN ACCESS.

5.8 Platform Lifts in Hotel Guest Rooms and Dwelling Units
The current guidelines and the final revised guidelines limit the places where platform lifts are permitted to be used as part of an accessible route in new construction. The final revised guidelines add a new scoping requirement that permits platform lifts to be used in hotel guest rooms and dwelling units with mobility features.
THE CURRENT ADAAG STATES WHY LIFTS ARE UNSAFE AND UNRELIABLE AS A MEANS OF ACCESS FOR PERSONS WITH DISABILITIES. ALLOWING MORE USE OF ACCESS LIFTS WILL GREATLY DECREASE OPPORTUNITIES TO ACCESS THE BUILT ENVIRONMENT.
5.10 Passenger Loading Zones at Medical Care and Long-Term Care Facilities
The current guidelines and the final revised guidelines require medical care and long-term care facilities, where the period of stay exceeds 24 hours, to provide at least one passenger loading zone at an accessible entrance. The current guidelines also require a canopy or roof overhang at the passenger loading zone. The final revised guidelines do not require a canopy or roof overhang.
THIS PROPOSED REDUCTION IN ACCESS DOES NOT REPRESENT A COST SAVINGS SIGNIFICANT ENOUGH TO JUSTIFY THE INCREASED DANGER TO THE HEALTH AND WELL BEING OF PERSONS WITH DISABILITIES.

5.13 Urinals
Where urinals are provided, the current guidelines require at least one to be accessible. The final revised guidelines require at least one urinal to be accessible, where more than one is provided. If a toilet room has only one urinal, an accessible urinal is not required.
THIS PROPOSED REDUCTION IN ACCESS IS CONTRARY TO THE PRINCIPAL OF AT LEAST ONE OF EACH FACILITY PROVIDED FOR THE GENERAL PUBLIC BEING PROVIDED FOR PERSONS WITH DISABILITIES.

5.14 Visible Alarms in Alterations to Existing Facilities
The current guidelines and the final revised guidelines require that when existing elements and spaces of a facility are altered, the alterations must comply with new construction requirements. The final revised guidelines add a new exception to the scoping requirement for visible alarms in alterations to existing facilities. Visible alarms are required only when an existing fire alarm system is upgraded or replaced, or a new fire alarm system is installed.
THIS PROPOSED REDUCTION GREATLY DISADVANTAGES THE HEARING IMPAIRED PUBLIC, AND GIVES THEM LESS OPPORTUNITY TO ACHIEVE EQUAL ACCESS TO THE BUILT ENVIRONMENT THAN OTHER PEOPLE WITH DISABILITIES.

5.17 Assistive Listening Systems
The current guidelines require assembly areas where audible communication is integral to the use of the space to provide an assistive listening system if they have an audio amplification system or an occupant load of 50 or more persons. The final revised guidelines exempt assembly areas, other than court rooms, that do not have audio amplification systems from providing assistive listening systems.
The current guidelines require receivers to be provided for at least 4 percent of the seats or room occupant load. The final revised guidelines revise the percentage of receivers required. As Table 5.17.2 shows, the number of receivers is significantly reduced for larger assembly areas.
The final revised guidelines add a new exception that allows multiple assembly areas that are in the same building and under the same management, such as theaters in a multiplex cinema and lecture halls in a college building, to calculate the number of receivers required based on the total number of seats in all the assembly areas, instead of each assembly area separately, where the receivers are compatible with the assistive listening systems used in each of the assembly areas.
The final revised guidelines also require at least 25 percent, but no fewer than two, of the receivers to be hearing-aid compatible. Assembly areas served by an induction loop assistive listening system do not have to provide hearing-aid compatible receivers.
THESE PROPOSED REDUCTIONS GREATLY DISADVANTAGES THE HEARING IMPAIRED PUBLIC, AND GIVES THEM LESS OPPORTUNITY TO ACHIEVE EQUAL ACCESS TO THE BUILT ENVIRONMENT THAN OTHER PEOPLE WITH DISABILITIES.

5.18 Wheelchair Spaces in Assembly Areas

The current guidelines and the final revised guidelines require assembly areas with fixed seating to provide wheelchair spaces based on seating capacity. The final revised guidelines revise the number of wheelchair spaces required in assembly areas with more than 500 seats. As Table 5.18.2 shows, the number of wheelchair spaces is significantly reduced for larger assembly areas.

THIS PROPOSED REDUCTION IS NOT LOGICAL AND FLIES PARTICULAR AGAINST THE FACT THAT THE POPULATION IS AGING WITH A GREATLY INCREASED INCIDENCE OF DISABILITY.


5.23 Toilet Room Doors
The current guidelines and the final revised guidelines prohibit doors from swinging into the clear floor space or clearance required for any fixture in toilet rooms. The final revised guidelines add a new exception for single-user toilet rooms that permits the door to swing into the clear floor space or clearance required for any fixture, where a clear floor space is provided within the room beyond the arc of the door swing. This exception results in at least a 7 square feet reduction in the required size of an accessible single-user toilet room.

THIS PROPOSED REDUCTION WILL MAKE TOILET ROOMS INACCESSIBLE TO PERSONS USING THE LARGER WHEELCHAIRS AND SCOOTERS. THE ADAAG IS ALREADY INADEQUATE BECAUSE IT DOES NOT REQUIRE 48 INCHES OF CLEAR FLOOR SPACE IN FRONT OF THE TOILET, MAKING RESTROOMS TOO SMALL FOR PERSONS USING THE LARGER CHAIRS AND SCOOTERS. THIS FURTHER REDUCTION WILL GREATER DISENFRANCHISE THE ELDERLY WHO ARE THE LARGEST POPULATION USING SCOOTERS AND THOSE INDIVIDUALS WHO USE THE LARGER WHEELCHAIRS.

5.25 Shower Compartments

The current guidelines and the final revised guidelines permit a ½ inch maximum curb in transfer-type showers. The final revised guidelines add a new exception that permits a 2-inch maximum curb in transfer-type showers in alterations to existing facilities, where recessing the compartment to achieve a ½ inch curb would disturb the structural reinforcement of the floor slab.

THIS IS A RIDICULOUS REDUCTION. A TWO-INCH CURB MAKES THE SHOWER COMPARTMENT UNUSABLE. THE ACCESS BOARD AND DEPARTMENT OF JUSTICE MIGHT AS WELL ELIMINATE TRANSFER-TYPE SHOWERS ALTOGETHER.


5.27 Detectable Warnings

Detectable warnings are a distinctively textured surface of truncated domes that is identifiable by cane and underfoot. The current guidelines require detectable warnings at curb ramps, hazardous vehicular areas, reflecting pools, and transit platform edges. The final revised guidelines only require detectable warnings at transit platform edges. The final revised guidelines change the specifications for the diameter and spacing of the truncated domes to permit a range of dimensions. The final revised guidelines also delete the requirements for the material used to provide contrast to be an integral part of the truncated domes, and for the truncated domes to contrast in resiliency or sound-on-cane contact from adjoining walking surfaces at interior locations.

THESE PROPOSED REDUCTIONS IN ACCESS PLACE PERSONS WHO USE CANES FOR GUIDANCE GREATLY AT RISK.

II. RESPONSE TO QUESTIONS

General Comment:


Questions related to Numbers. We are concerned about the request for data sources which call for numbers of users of accessibility features. Such a request seems to indicate that a particular access feature will be provided only if justified by an arbitrary determination of what constitutes a sufficient number of users. Because disability can, will and does occur at any time during the human life span, it seems inappropriate to base the provision of accessibility upon the number of persons with disabilities. Furthermore, the incident of disability is on the rise, due to (1) the increasing numbers of persons over 65, (2) the increasing number of U.S. military actions, (3) natural disasters, (4) terrorists’ actions and (5) the advancements in medical knowledge and technology that allow people to live productively and actively after the occurrence of a disabling condition. Any determination of user numbers today will undoubtedly be inadequate for decision making in a relatively short amount of time.
In addition, much of the data being requested is not available. People with disabilities have always been undercounted in any population census. This is due to the inadequate structure of the census materials, as well as a reluctance of the population to self identify as disabled.
Furthermore, using numbers upon which to decide what accessibility features should be provided can lead to discrimination against the more disabled of the disability population. An example is the ADAAG requirement for roll-in showers only in hotels with 50 or more total guest rooms. This requirement restricts people with disabilities who cannot use bathtubs too severely. They are able to stay in hotels in urban centers that support large hotels only. This precludes them opportunities to stay in small towns and more country-like settings.

Questions Related to Costs. Questions related to costs, either to the building owner or related to cost benefits, are inappropriate for this type of regulations which implement civil rights legislation. Public Law 101-336, The Americans with Disabilities Act of 1990, SEC. 2. FINDINGS AND PURPOSES. (b) Purpose state, “It is the purpose of this Act-- (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; (3) to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.

The ADA law requires that the Department of Justice provide “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” It does not state that such standards shall be provided only if cost effective. Issues of cost do not relate to minority rights, including the disability minority.

Question 1. Should the effective date of the proposed revised ADA Standards be modeled on the effective date used to implement the current ADA Standards – eighteen months after publication of the final rule – or a shorter period? If you favor a shorter period, please indicate which period you favor and provide as much detail as possible in support of your view.

Response: A 12 month period is necessary for architects, contractors and others to become familiar with the new ADA-ABA guidelines. Additionally, the design of many facilities begins long before construction begins. For example, many public schools are designed several years before funding becomes available for construction. To change these designs without a grace period on the applicability of new requirements is often difficult.
Question 2. The Department is asking the public to identify any facilities for which the current triggering events might prove unworkable. Are there facilities covered by the revised ADA Standards that are subject to Title III for which first occupancy/physical alteration do not apply in the new construction/alteration context? Please be specific about the type of facility that would be affected, and what other event, such as “first use,” would work better for each specified type of facility. Are there facilities subject to Title II for which commencement of construction would be difficult to apply? Please be specific about the type of facility, and what other event, such as “first use,” would work better for each specified type of facility.

Response: We do not foresee any occupancy types where special circumstances dictate extending the “triggering date” beyond those for other buildings and facilities.

Question 3. Should the Department provide any type of safe harbor so that elements of facilities already in compliance with the current ADA Standards need not comply with the revised ADA Standards? Please provide as much detail as possible in support of your view.
Response: We do not support a “safe harbor” approach to the removal of barriers. The Title III regulations make it clear that the removal of architectural barriers is a continuing obligation. As technologies change, or newer standards are developed for what constitutes an accessible environment, public accommodations must adapt their facilities to meet these new demands. Accessibility is a cost of doing business, like changing advertising or retail decorative motifs to accommodate changes in demographics or shopping patterns. Assuming that a public accommodation were in compliance with the “removal of barriers provisions, in most cases there should only be incremental costs associated with addressing the new provisions in the ADA-ABA standards. If an element were determined not to be readily achievable to remove, addressing the requirement could be delayed until it becomes readily achievable to do so. Finally, grandfathering in access under the existing ADAAG standard will add a new layer of forensics to the complaint or litigation process because more than one version of ADAAG would need to be applied.

Question 4. Reducing or exempting specified requirements.
a. Should the Department adopt Option II, and develop an alternative set of reduced scoping requirements for the barrier removal obligation? If so, which specific requirements or elements should be addressed? If possible, provide detailed information about the costs or difficulties that would be incurred in making the modification.
Response: No. The requirements as written were done so to accommodate a need. The scoping requirements often do not fully meet the need, such as the number of accessible seats in a theater. The concept of readily achievable barrier removal can be used if an entity is unable to financially or physically meet the full extent of the law. Part of the reason for requiring existing facilities to retrofit was that most of the infrastructure is in place. While there are a small percentage of facilities that are built new every year, when compared to the overall built environment, it is small. Lowering the scooping requirements will only lengthen the time that people with disabilities are denied full participation in society as enjoyed by non-disabled people.
b. Should the Department adopt Option III, and exempt certain scoping and technical requirements in the revised ADA Standards that will not be required for barrier removal? If so, which specific requirements or elements should be addressed? If possible, provide detailed information about the costs or difficulties that would be incurred in making the modification.
Response: No. It’s also a safety issue, particularly handrails on stairs. During times of emergencies, elevators are not to be used. The accessibility regulations for handrails largely meet a safety need, and thus is of greater importance during an emergency. Also the cost is not prohibitive Areas outside of immediate work stations are public areas, to be used by all, so all must be accessible. The inaccessible work areas are adequately addressed under Title 1.

Question 5: Should the Department retain the current ADA requirement to make each altered facility accessible to the extent required by the ADA Standards or should it adopt an alternative approach to ensure accessibility in correctional institutions? If you favor an alternative approach, please indicate which approach you favor and provide as much detail as possible in support of your view.
Response: It is reasonable to recognize that in older buildings in correctional institutions, some of which are more than 100 years old, it may not be practical in view of the long-term use of the building and in view of the overall priorities of the institution to modify existing cells. Option #2, however, provides sufficient flexibility within the same facility to provide accessible cells in another location than the area being altered.
However, regarding Option #2, it is important to stress that the accessible cells in another location must provide equal access to inmate facilities, including dining halls and recreational, educational, medical and visitor areas that are provided to inmates in the area being remodeled, but where the accessible cells will not be located. The equal access must not require traveling longer distances to the inmate facilities. In addition, an accessible path of travel from the alternately located accessible cells to all inmate facilities must be provided. It is important to stipulate these requirements if Option #2 is adopted.
Option #3 allows the provision of alternate accessible cells within a prison system. This option does not provide equality of treatment and opportunity to prisoners with disabilities. One of the basic tenets of rehabilitation of the prison population is the recognition that prisoners need to maintain their connection to their families and community for successful reintegration. In California, which covers a large geographical area, a conscious effort is made to house prisoners as close as possible to their home communities in order to facilitate visits by family and friends and a connection with their responsibilities to their community. If only certain prisons are designated as accessible within the prison system, prisoners with disabilities will not have the same opportunity as other inmates to be housed close to their communities and will suffer from this inequity.
Conclusion: We support Option 2.

Question 6. To what extent should golf courses be required to make accessible golf cars available to people with disabilities? Please provide as much detail as possible in support of your view. The Department also requests specific information concerning the extent to which the one-person machines on the market are, in fact, stable, lightweight, and moderately priced. The Department also requests information about whether golf cars are being manufactured that are readily adaptable for the addition of hand controls and swivel seats and whether such cars are otherwise suitable for driving on fairways and greens.
Response. If a golf course provides golf carts, they must provide accessible golf carts. This is clearly a requirement of the ADA, that services and facilities provided for the general public must be provided for persons with disabilities, as are accessible restrooms, telephones, drinking fountains, parking spaces, assistive listening devices, etc.
If a golf course allows golf carts to be driven on fairways and greens by the general public, they must allow such by persons with disabilities in accessible carts. The question of the availability of accessible golf carts reveals a bias against accessibility. Accessible items such as golf carts will be provided if there is a market, and there will be a market if golf courses are not allowed to discriminate against people with disabilities. Any data presented by any group that shows a low use of golf carts by persons with disabilities is greatly premature, and therefore, greatly inadequate. Access to golf courses has never been presented to the disability population as an opportunity. Therefore, to determine how accessible a golf course should be based upon current usage is nonsense.
WE will support that only a required percentage of golf carts be made accessible, as in hotels, parking, restroom stalls, and telephones. We would support a similar 4 to 5 percent requirement, as is required for hotels and parking.

Question 7. The Department invites public comment on its approach to these issues. Because the Department anticipates that it may issue further guidance with respect to the acquisition and use of mobile, portable, and other free-standing equipment and furnishings used by covered entities to provide services, the Department is seeking comment on the question of whether such guidance is necessary. If you think that such guidance is needed, please provide specific examples of situations that should be addressed.
Response. Such guidance is necessary and many standards already exist that can be applied to free-standing equipment and furnishings. Standards for reach ranges, clear floor space, counter height, points of sale and ATM’s (including access for persons with visual impairments), swivel LED readers, lines of sight, etc. can and should apply to free-standing equipment. What the Department can provide is scoping for making free-standing equipment accessible. For example, one of each type of free-standing equipment in an entertainment arcades should be required.

Question 8. Should the Department promulgate a regulation specifically relating to stadium-style movie theaters? If so, should this regulation simply adopt ADAAG's viewing angle requirement for lines of sight or should it instead also include alternative distance from the screen or viewing angle/percentile approaches? How should the "stadium" section of a stadium-style theater be defined?
CODAP has worked with the National Association of Theater Owners (NATO) for a number of years in an effort to get the industry to develop reasonable standards that assure disabled consumers an equal level of access to this type of movie theaters. NATO has stated that they believe they should only be required to provide a viewing angle of somewhere between 30-35 degrees, while those of us representing the disability community have argued that: 1. most stadium-style seating is at a 5% angle, giving those seated in the theater seating a sight line of about 25 degrees. Unlike the theater seating, those patrons sitting in wheelchairs, at any location in those theaters, typically sit at no angle, thus requiring those patrons to angle their neck during the movie presentation (typically anywhere from 1 1/2 hours to 2 1/2 hours). Stadium-style theater owners should be held to the same standards of accessible seating as those owners of non-stadium-style theaters, with larger theaters being required to provide alternate accessible seating locations and view angles similar to those of the general public (typically 25-27 degrees).

Questions Regarding Changes in Procedural Requirements for Certification of State Laws and Local Building Codes Certification
Response. The certification of state or local codes for ADA Title III equivalency is an important process that should be encouraged. Based on California's experience, the certification process can be complex, expensive and take substantial time to achieve. Public entities who are already in the DOJ certification queue should be allowed to continue in the process using the existing ADAAG. DOJ should consider a process whereby public entities who already have had their state or local codes certified would be able to quickly make amendments or numbering changes to align with ADA-ABA guidelines without having to resubmit an application for certification behind other entities who have newly applied.

Changes in Public Hearing Procedure. Section 36.605 (a)(2) of the Title III regulation requires that an informal hearing be held in Washington, D.C., on the Department’s decision to issue a preliminary determination of equivalency for a jurisdiction’s accessibility code. The Department is considering substituting a requirement that an informal hearing be held within the relevant jurisdiction. The Department believes that a hearing conducted within the affected jurisdiction will generally provide a better opportunity for interested parties to comment.

Response. We concur with the Department and requests that hearings within the jurisdiction be provided.

Basic Principles of Proposed Regulatory Framework.
Response. As stated above, we question the proposed framework for the NPRM. Questions of cost benefits, costs to providers, numbers of users of accessibility features are inappropriate for the implementation of civil rights laws, such as the Americans with Disabilities Act. A cost analysis is not germane to the abolition of slavery or child labor, or any kind of disenfranchisement of any minority. Obviously, there is a cost to social change that impacts those who have unjustly benefitted by the social ill of discrimination. On the other hand, the cost benefit to society as a whole when that social ill is abolished cannot be calculated, of course, and as much as mandated social change benefits the society economically, the cost benefit does not justify the enactment of civil rights laws such as the ADA. The ADA was enacted “in order to address the major areas of discrimination faced day-to-day by people with disabilities, “ as stated in the preamble to the ADA by Congress. The Department and the OMB are confusing the enactment of regulations for a major civil rights law with other kinds of regulation laws.

Question 9. Many of the new and changed requirements in ADAAG are expected to have negligible cost for new construction and alteration, such as the change in the maximum side reach from 54 inches to 48 inches (ADAAG 308.3). See Chapter 6, item 6.20, of the regulatory assessment for ADAAG at www.access-board.gov. Other new and changed requirements are expected to have a cost impact for new construction and alterations. See Chapter 7 of the above cited regulatory assessment for ADAAG. The Department invites comments from covered entities, individuals with disabilities, and individuals without disabilities on the benefits and costs of applying these new and changed specifications to existing facilities pursuant to the readily achievable barrier removal requirement of Title III. Please be as specific as possible in your answers. (Changed requirements would not be applied under the barrier removal obligation to elements that comply with the current ADA Standards if the Department adopts the safe harbor provision addressed under Question 3. New requirements would be applied even if the Department adopts the safe harbor provision but their impact could be reduced under the options addressed under Question 4.)

Response. The current ADAAG and ABA are inadequate in many ways in providing genuine access and equality of opportunity to access the built environment. For example, persons who need roll-in showers are prohibited from lodging at hotels with less than 50 rooms. The required clear floor space in restroom stalls is inadequate for those who use the larger wheelchairs and scooters, much preferred by the elderly. In addition, the ADAAG/ABA restrooms do not allow for those who must make a front transfer. Improvements to the current ADAAG, if not applied to readily achievable barrier removal will result in the continued disenfranchisement of members of the disability community.
Question 10. Consistent with the Regulatory Flexibility Act (RFA) and Executive Order 13272, the Department will determine whether a proposed rule adopting all or part of the Access Board's ADAAG revisions would be likely to have a significant economic impact on a substantial number of small entities, and if so, what the Department could do to reduce that economic impact while achieving the goals of its regulation. The Department welcomes comments providing information on the rule's potential economic impact on covered small entities, including retrofitting costs. Also, please provide any potential regulatory alternatives that could reduce those burdens.
Response. While we recognize that the Department is under the constraints of the RFA and Executive Orders, nonetheless, such restraints cannot be used to deny people with disabilities access to the built environment. In many states, such as California, access to the built environment has been required for decades. Entities required to provide access to their facilities have had decades to make their facilities accessible. Providing access is part of doing business with the public. A substantial tax credit is available for barrier removal by small businesses. In addition, providing access provides a wider market base, and increases the usability and attractiveness of businesses.

Question 11. The Department is considering excluding as a barrier removal obligation for existing facilities, if it selects Option II under Question 4, above, the requirement at ADAAG 210 that accessible handrails be added to stairs in buildings with elevators. The Department is soliciting comments from all stakeholders on this approach. Please be as specific as possible in your response.
Response. We do not support Option II.

Question 13. New requirements at ADAAG 230.1 and 708.1 require two-way communications systems (except in residential facilities) to be equipped with visible as well as audible signals. The Department wishes to collect data about the effect of this new requirement if it is applied to existing facilities under the readily achievable barrier removal requirement of Title III. Do you use a two-way communications system in your existing office building? What would be the cost of equipping a unit with both audible and visible signals? How many two-way communications systems do you have in your existing office building?

Persons with disabilities and the general public are invited to comment on the incremental benefit of having both audible and visual signals on two-way communications systems in existing office buildings.
Response. Having both audible and visual signals for building entry systems is not merely an incremental benefit. With the emphasis on greater and greater security in America today, many buildings are providing locked entrances and audible entry systems in lieu of an open door or a security guard. People with vision impairments or hearing impairments must continue to be able to enter buildings and businesses if they are to remain active members of an increasingly paranoid society. As security systems are upgraded, and as part of the readily achievable standards, entry systems that are accessible to all people must be provided. The technology is available and is not cost prohibitive when compared to the cost of the building as a whole.

Question 14. Under the current ADA Standards, men’s toilet rooms with six or more water closets and urinals, but fewer than six toilet compartments, are not required to provide an ambulatory accessible toilet compartment with grab bars. Under ADAAG 213.1, urinals will be counted, so that if there is a total of six urinals or water closets, an ambulatory accessible toilet compartment with grab bars will be newly required. Additional costs in new construction include the costs of adding grab bars but because of fire code requirements, no cost is allocated with respect to new construction and alterations to the requirement that an accessible compartment must be between 35 and 37 inches wide and 60 inches deep. The Department wishes to collect data about the effect of this requirement in existing facilities. Are some or all of the men’s rooms in your existing office building required to have an ambulatory accessible toilet compartment? Will the changed requirement result in more such compartments being necessary in your existing office building? If so, what would be the unit cost of adding such a compartment? How many additional ambulatory accessible toilet compartments would you be required to add in your existing office building?

Persons with disabilities and the general public are invited to comment on the incremental benefit of having additional ambulatory accessible toilet compartments in men’s rooms in existing office buildings.
Response. Please see the General Comment at the beginning of this document.

Question 15. Under the current ADA Standards, a private office building must provide a public TTY if there are four or more public pay telephones in the building. Under the revised ADA Standards, a private office building will also be required to provide a public TTY on each floor that has four or more public telephones (ADAAG 217.4.2) and in each telephone bank that has four or more telephones (ADAAG 217.4.1). The Department wishes to collect data about the effect of this requirement if it is applied to existing facilities under the barrier removal requirement of Title III. Will the changed
requirement result in more TTYs being necessary in your existing office building? How many more? Can a TTY be added to an existing facility at the same cost as to a new or altered facility? Persons with disabilities and the general public are invited to comment on the incremental benefit of having additional TTYs in existing office buildings.

Response. The changed requirement, that a public TTY be provided on each floor that has four or more public telephones (ADAAG 217.4.2) and in each telephone bank that has four or more telephones (ADAAG 217.4.1), will impact private office buildings with multiple banks of public phones and/or with high public use areas above the first floor. It is important to note that only a small percentage of private office buildings fall under these
two categories--primarily large, high-occupancy structures. A vandal resistant shelf-top public TTY (for acoustic or direct-connect use) retails on-line for about $700. The cost of installing a TTY at an existing facility is comparable to the cost of installing one a new or altered facility. Adding a TTY to most existing pay telephone locations simply requires: 1) installing a duplex electrical outlet and a shelf below the pay telephone(if not already provided); 2) mounting the TTY on the shelf; and 3) installing the required identification sign. The changed requirement will help ensure that public pay telephone services in large, multi-story office buildings are more readily accessible to TTY users and that TTY users enjoy a level of access that is similar to that which is enjoyed by voice
telephone users.


Question 17. What data source do you recommend to assist the Department in
estimating the extent to which existing office buildings comply with the
current ADA Standards?

Response. While some (small) percentage of private office building owners undertake readily achievable barrier removal, the vast majority of substantial ADA improvements are made during major renovation projects, such as seismic improvements, tenant improvements, etc. The pool of existing office buildings nationwide that substantially comply with current ADA Accessibility Guidelines (ADAAG) is, for the most part, limited to newly-constructed buildings (first occupancy after January 26, 1993) or extensively renovated buildings (altered after January 26, 1992), which were built/renovated in compliance with ADAAG and/or comparable state codes.
Building owners conducting new construction or alteration projects are required to obtain a permit from the local building department, so local building officials represent a potential source for state accessibility code compliance data. It is important to note, however, that the extent of enforcement of state accessibility requirements by local building officials varies greatly from municipality to municipality and that large cities
generally have more aggressive enforcement programs.


Question 18. What data source do you recommend to assist the Department in
estimating the incremental cost of making noncompliant elements of existing office buildings comply with the revised ADA Standards?

Response. The social benefit of increased accessibility for all Americans, especially for the burgeoning populations of people with disabilities and seniors, is sufficient argument for the application of the new standards to existing office buildings, regardless of the one-time monetary costs. Nevertheless, CODAP recommends the following data source for ADA cost estimating. Adaptive Environments Center, Inc. and the R.S. Means Company, Inc. collaborated to publish the Means ADA Compliance Pricing
Guide in 1994. The second edition offers "professional guidance on the revised 2004 ADA guidelines and cost estimates for the most commonly needed building modifications," and is available through the R.S. Means Company, 100 Construction Plaza, Kingston, MA 02364-0800, 800-334-3509, http://www.rsmeans.com .

Question 19. A new requirement at ADAAG 806.2.4.1 provides that if vanity counter top space is provided in non accessible hotel guest toilet or bathing rooms, comparable vanity space must be provided in accessible hotel guest toilet or bathing rooms. The Department wishes to collect data about the effect of this requirement if it is applied to existing facilities under the readily achievable barrier removal requirement of Title III. Do you currently provide any accessible vanity counter space in your existing accessible guest toilet or bathing rooms? How much available extra room, usable for an accessible vanity counter top, is there on average in your existing accessible guest toilet or bathing rooms?
Persons with disabilities and the general public are invited to comment on the incremental benefit of having comparable vanity space in accessible hotel guest toilet or bathing rooms.

Response. Vanity Counter tops, which can be provided by simple shelving is a low-cost item. Once again, the Department errs in seeking a reason related to cost to provide equal accommodations for persons with disabilities. It should be noted that persons with disabilities have the most need for counter tops and shelving in order to have a sanitary and convenient place for medical equipment.



Question 20. What data source do you recommend to assist the Department in estimating the number of existing hotels and motels categorized by such features as size, age, type, physical condition, and financial condition?
Response. What is the relevance of this question?


Question 21. What data source do you recommend to assist the Department in estimating the extent to which existing hotels and motels comply with the current ADA Standards?
Response. Research into the number of lawsuits filed against hotels and motels will give some indication of how many hotels and motels do not comply with the ADA. The number of complying hotels and motels is, in the experience of the disability community, very low.


Question 22. What data source do you recommend to assist the Department in estimating the incremental cost of bringing noncompliant elements of existing hotels and motels into compliance with the revised ADA Standards?
Response. Please see our objections to this type of question in General Comments above. Furthermore, because Title III of the ADA allows hotels and motels to remove only those barriers where it is readily achievable to do so, the issue of cost has already been addressed with more than sufficient allowance for hotel and motel owners to achieve compliance without any undue cost burden.

Question 23. What data source do you recommend to assist the Department in estimating the number of existing stadiums and arenas categorized by such features as size, age, type, physical condition, and financial condition?
Response. We recommend requesting that information from the NBA, American and National Baseball teams.

Question 24. Are there data sources that the Department could consult to estimate the extent to which existing stadiums and arenas comply with the current ADA Standards?
Response. We don't know of any specific sources that would have the information needed except those facilities that are publically (like Candelstick Park in San Francisco) that have been analyzed and included in the City of San Francisco Transition/Self-Evaluation Plan). The SBC Park (San Francisco Giants) is privately owned, but on public land. During its development, plan/site review was overseen by the City and the inclusion of complete access to each area was required. Those stadiums and arenas solely privately owned would have only had review during any construction (new or remodel) that would have only required compliance with state access requirements, not current ADA standards.

Question 25. What data source do you recommend to assist the Department in estimating the incremental cost of bringing noncompliant elements of existing stadiums and arenas into compliance with the revised ADA Standards?
Response. Please see our General Comments. In addition, we would like to add that estimating the incremental costs of bringing noncompliant elements of existing stadiums and arenas into compliance with the revised ADA Standards is an exercise that has little relevance in view of the fact that the standards will only be applicable in construction or for readily achievable barrier removal. In new construction, compliance is a tiny fraction of overall costs. In remodeling, many exceptions already exist related to costs. For readily achievable barrier removal, cost is a part of the determination of what is readily achievable.

Question 28. Are there data sources that the Department could consult to estimate the extent to which existing hospitals and long-term care facilities comply with the current ADA Standards?
Response. Research into the number of lawsuits filed against hospitals and long-term care facilities will give some indication of how many do not comply with the ADA. The number of complying hospitals and long-term care facilities is, in the experience of the disability community, very low.

Question 29. Are there data sources that the Department could consult to assess the incremental cost of bringing noncompliant elements of existing hospitals and long-term care facilities into compliance with the revised ADA Standards?
Response. Please see our objections to this type of question in General Comments above. Furthermore, because Title III of the ADA allows hospitals and long-term facilities to remove only those barriers where it is readily achievable to do so, the issue of cost has already been addressed with more than sufficient allowance for hotel and motel owners to achieve compliance without any undue cost burden. For hospitals receiving Federal funds, and long-term care facilities that receive Medicare funds, compliance must be accomplished as part of their program accessibility, regardless of cost. Section 504 of the 1993 Rehabilitation Act and the ADA already provide sufficient flexibility in providing access to programs to take into consideration undue burdens in cost.

Question 30. A changed requirement at ADAAG 804.2 requires a 60-inch (rather than the current 40-inch) clearance space in so-called galley kitchens, which have cabinets and appliances on opposite walls, if there is only one entry to the kitchen. The Department wishes to collect data about the effect of this requirement if it is applied to existing facilities under the readily achievable barrier removal requirement of Title III. Are any of the kitchens in the accessible dwelling units of your existing housing facility of the one-entry galley type? Is clearance of 60 inches provided? If not, is extra space available for this purpose?

Persons with disabilities and the general public are invited to comment on the incremental benefit of having a 60-inch (rather than the current 40-inch) clearance space in galley kitchens.
Response: For purposes of barrier removal, a T-shaped clear floor space per section 304.3.2 could be provided for turning around in such galley style kitchens, by removing from one of the sidewalls, a 36-inch wide section of cabinet and the counter top directly over it. Where providing such a T- Shaped space is not readily achievable, simply removing the cabinet and leaving the counter top in place can provide a maneuvering space that would be nearly as usable, provided the distance between the existing opposing cabinets is at least 40”. In this instance where the counter top is not removed, rather than having a 24 - inch long center-leg to the “T” as described at 304.3.2, the center-leg would be 5-inches shorter because the maximum usable knee space underneath an object is 19-inch long. However, the 40-inch wide top portion of the “T” would be 4-inches wider than the 36-inch minimum width prescribed in the standards. In summary, removing a section of cabinet and counter will always be technically feasible - - neither walls or structural members need to be modified. In most cases it will also be readily achievable, and where it is not, removing a section of cabinet and leaving the counter alone is a very simple task that is very consistent with the definition of barrier removal. The benefits are more than incremental, as it not only allows room to turn around inside the kitchen but also provides an effective forward approach for reaching into a refrigerator or oven. Please see the attached drawing by Jonathan Adler, member of CODAP, for a clearer view of how access can be provided in this manner.

Question 32. What data source do you recommend to assist the Department in estimating the extent to which existing residential dwelling units comply with the current ADA Standards?
Response. We can provide no data source. However, in our experience, there is little compliance with access standards in existing residential dwelling units.


Question 33. What data source do you recommend to assist the Department in estimating the incremental cost of bringing noncompliant elements of existing residential dwelling units into compliance with the revised ADA Standards?
Response. Please see our objections to this type of question in General Comments above. For housing receiving Federal funds, and those that are funded by state and local governments, compliance must be accomplished as part of their program accessibility, regardless of cost. Section 504 of the 1993 Rehabilitation Act and the ADA already provide sufficient flexibility in providing access to programs by allowing covered entities to take into consideration undue burdens in cost.

Question 39. Among the new requirements at ADAAG 240 are new scoping provisions for the minimum number of ground level and elevated play components that are required to be on an accessible route for newly constructed or altered play areas. The basic requirement for ground-level play components is that one of each type must be on an accessible route. If a new or altered play area contains elevated play components that fail to meet specified accessibility requirements, then a specified greater number of ground-level play components must be on an accessible route. The Department wishes to collect data about the effect of this requirement in existing play areas. Are any of the ground-level play components in your existing play area on an accessible route? Is one of each type of ground-level play component in your existing play area on an accessible route? Are there elevated play components in your existing play area? Are any of them on an accessible route?
Response. CODAP recommends and agrees with the proposed language presented by the National Center on Accessibility. We are very concerned with the changes that took place during the U.S. Access Board's regulatory negotiations on play areas. After spending almost two years developing a consensus, the U.S. Access Board's Recreation Committee's recommendation that a "large" play structure be defined as having 12 or more elevated activities was changed. The Board's "reg neg" Committee changed that guideline recommendation and defined "large" play structures as having 20 or more elevated activities. This change has assured that almost no children's climbing structures have been built with a ramp system. Thus, most disabled children who are unable to transfer from their wheelchair to the structure are unable to experience those play systems. NCA's comments should be taken very seriously and we believe, adopted, based on their findings.
The National Center on Accessibility recommends that the U.S. Department reconsider and reduce the number of elevated activities required to trigger ramp access to elevated play components. In addition, NCA recommends that the U.S. Department of Justice reserve adoption of ASTM 1951 as applied to accessible playground surfaces until further surface testing research is conducted with input from children with mobility impairments.
During the U.S. Access Board's regulatory negotiation on play areas, the regulatory negotiating committee agreed to change the number of elevated play components triggering ramp access to elevated structures from 12 to 20 activities as suggested in the ANPRM. The change in the triggering number was not based on any statistical data on the average size of playgrounds, but instead based on negotiation between the committee members representing the playground equipment manufacturers and disability advocacy organizations. As a concession, committee members agreed that where ramp access was not available to elevated play activities additional accessible ground level activities should be provided. In Question 39, DOJ seeks information on the new requirement for ground-level play components on playgrounds and the effect of the new requirement on playgrounds. During this period, the National Center on Accessibility has observed trends where the number of ground activities has increased but the actual play value of the ground level activity has not compensated adequately for what has been lost due to the inability to access the elevated play components. Most ground activities that have been added are in the form of play panels (tic-tac-toe or puzzles) or spring rockers. Where elevated play structures exist, children both with disabilities and without disabilities still have an overwhelming desire to venture to the highest part of the playground and "perch" to simply reflect on the view and take in their surroundings.
While the additional requirement for ground-level play components has increased play opportunities for children with disabilities, the additional ground level activities have not compensated for the need to perch in high places. Thus, there is still great disparity in access to elevated play activities for children who used mobility devices or require ramp access to elevated structures. The proposed guidelines allow for the provision of transfer steps to elevated play structures based on the number of elevated play activities. However, transfer steps to date have not been documented as effective primary means of access for either children or adults with physical disabilities. In a preliminary research study conducted by the National Center on Accessibility with an independent consultant, children with disabilities were observed in a playground setting. Out of the more than 50 children with physical disabilities, no single child spontaneously transferred out of their wheelchair to use the transfer steps to access the elevated play structure. Moreover, many children and parents noted that this was not an action they would have taken even if they had known in advance that the steps were designed specifically for the use of transferring. Nowhere in the current or proposed revised accessibility guidelines is it suggested that adults with physical disabilities transfer out of their mobility device and use a transfer system as a primary means of using an accessible route. Why should it be considered appropriate to make this request of children on the playground?
Lastly, the means and test value to determine the accessibility of playground surfaces should further be evaluated before adoption by the U.S. Department of Justice. The Access Board rule adopts the provision from the American Society for Testing and Materials (ASTM) F1951. Under this provision, surfaces are considered accessible if they meet the work force requirement of a 175 lb. adult using a manual wheelchair on a 7% slope. Thus, several loose fill surface products, typically deemed inaccessible through the subjective DOJ complaint and investigation processes are considered accessible through this surface test provision in ASTM F1951. Moreover, the value of the 7% slope is based upon research using less than 50 human subjects, where less than 10 were human subjects with disabilities using mobility devices. To date, no surface testing has been conducted with children. Thus, there is no research data currently available on the appropriateness of the application of the work force requirement and 7% slope value for a surface to be considered "accessible" for both adults and children.

Question 41. What would be a good source to assist the Department in estimating the cost of bringing existing play areas into compliance with the revised ADA Standards?
Response. Please see our objections to this type of question in General Comments above. For entities receiving Federal funds, and those that are funded by state and local governments, compliance must be accomplished as part of their program accessibility, regardless of cost. Section 504 of the 1993 Rehabilitation Act and the ADA already provide sufficient flexibility in providing access to programs to take into consideration undue burdens in cost. Title III entities providing playgrounds have even more flexibility in removing under the “readily achievable barrier removal” requirements, and for remodeling construction. The cost of making playgrounds accessible in new construction is negligible.
Furthermore, many states are adopting Safety Standards for playgrounds which require many modifications of existing playgrounds. As modifications are made, accessibility features should be incorporated without additional costs.

Question 42. A new requirement at ADAAG 234.3 provides that every new or altered amusement ride must provide at least one wheelchair space or transfer seat or transfer device. The preamble to the final recreation facilities guidelines provides that the transfer device may be separate from, rather than integral to, the ride. The Department wishes to collect data about the effect of this requirement if it is applied to existing amusement rides under the barrier removal requirement of Title III. With respect to your existing rides, have you used transfer devices or other means to make the ride accessible to persons with disabilities? If so, what did the transfer device cost?

Persons with disabilities and the general public are invited to comment on the incremental benefit of having transfer devices available for use on existing rides.
Response. Please see our objection to this type of question under General Comments. In addition, we would like to point out access to amusement rides is particularly important to children with disabilities who are still forming their self concept of their placement in society. A society that excludes children unnecessarily sends a powerful message that tells the child they are unworthy of consideration. Requiring a transfer device, which must be set up upon demand creates additional stigma and will result in little likelihood that the child will request such a device. Integral transfer devices which do not create additional, unwanted attention should be required.

Question 43. A new requirement at ADAAG 235.2 requires accessible boat slips to be provided in accordance with a table, which ranges from one accessible boat slip for facilities with 25 or fewer boat slips to 12 accessible boat slips for facilities with 901 to 1,000 boat slips. ADAAG 1003.3.1 provides that an accessible boat slip must be at least 60 inches wide along its entire length (with an exception for two-foot sections at least 36 inches wide if separated by 60-inch wide sections at least 60 inches in length). The Department wishes to collect data about the effect of this requirement if it is applied to existing boat slips under the readily achievable barrier removal requirement of Title III. How many boat slips are there in your existing facility? When was your facility built? The Department is considering reducing the number of boat slips that must be accessible in existing facilities if it selects Option II under Question 4, above. The Department is soliciting comments from all stakeholders on this approach. Please be as specific as possible in your response.
Response. Please see our concerns about this type of question under General Comments.

Question 45. A new requirement at ADAAG 242.1 requires a new swimming pool whose perimeter is over 300 linear feet to have at least two accessible means of entry, at least one of which must be a lift or a sloped entry. The Department is considering reducing the number of accessible entries for a pool over 300 feet in perimeter in existing facilities if it selects Option II under Question 4, above. The Department is soliciting comments from all stakeholders on this approach. Please be as specific as possible in your response.
Response. We support Option I. In addition, we concur with the comments of the National Center on Accessibility on this issue. However, in any consideration between a sloped entry and a lift entry into a pool, the lift entry is preferred. A sloped entry requires transferring into a pool entry mobility device which can sustain water damage. In addition, existing a pool of water via a sloped entry is not possible without assistance. A lift can be used independently.

Question 47. What data source do you recommend to assist the Department in estimating the cost of making each of the following types of existing recreation facilities comply with the revised ADA Standards: amusement rides, boating facilities, fishing piers and platforms, golf, miniature golf, sports facilities (bowling, shooting, and exercise facilities, among others), and swimming pools and spas?
Response. Please see our objections to this type of question in General Comments above. For entities receiving Federal funds, and those that are funded by state and local governments, compliance must be accomplished as part of their program accessibility, regardless of cost. Section 504 of the 1993 Rehabilitation Act and the ADA already provide sufficient flexibility in providing access to programs to take into consideration undue burdens in cost. Title III entities providing playgrounds have even more flexibility in removing under the “readily achievable barrier removal” requirements, and for remodeling construction.

Question 48. Do you have any general comments or concerns about the Department’s proposed methodology for determining benefits? As discussed in the text of the proposed framework, the Department is charged with ascertaining the value of the benefits that the revised ADA Standards will provide for both people with disabilities and others. The Department is seeking comments from the public on how best to quantify, monetize, or describe the benefits provided by the proposed revised regulations, including suggestions on how to quantify, monetize or describe use values, insurance values, and existence values, each as described in Appendix A.
Response. Please see our objections to this type of question in the General Comments. It is much more difficult to quantify and monetize the benefits of the ADA/ABA versus the costs. One can easily estimate the one-time cost of making a single physical access modification, or group of modifications. What's harder is gauging the economic benefits of access modifications to people with disabilities and society as a whole. How much more are people with disabilities able to earn or spend as a result of any single modification or group of modifications? Answering such questions requires a much more complex exercise than construction cost estimating. How much is liability reduced by physical access compliance? Anyone involved in ADA implementation knows that the up front investment in physical access compliance is far less than the down-the-line cost of non compliance; in almost every case construction costs are a mere fraction of litigation expenses. Hard data sources, however, are limited.

Softer studies are more readily available. For instance, a study published in the latest issue of the Journal of Consumer Affairs is the first to present the perspectives of people with disabilities regarding the effectiveness of the ADA. The study asks those for whom the policy was designed how well the policy works. The authors examined the responses from a national sample of one thousand noninstitutionalized persons with disabilities.
The study found that respondents who perceived greater access to the marketplace are more satisfied with life and the more consumers with disabilities interact in the marketplace, the more satisfied with life they are. "This indicates the value behind efforts designed to empower consumers with disabilities by offering services that assist them... and by creating environments that enable them to experience full participation in society,"
the authors Carol Kaufman-Scarborough and Stacey Menzel Baker state. But, how do we place a price tag on this?

Questions 49 - 54.
Response. Please see our objections to giving a dollar value to the civil rights of people with disabilities in the General Comments Section, and throughout this response.

Thank you for this opportunity to comment on the proposed guidelines for the ADA and ABA.
Respectfully submitted,
HolLynn D’Lil
Member
Coalition of Disability Access Professionals