"Note from the U.S. Department of Justice: U.S. DOJ created this .TXT version of the public comment as an alternative for those who have difficulty reviewing the PDF of this same comment. The text layer associated with the PDF version is of poor quality, because the original image of the public comment was also of poor quality. To rectify this problem, we have corrected the errors in this text-based version, so that the comment can be more accessible and can be read more accurately (e.g., by screen readers)." DEAF AND DEAF-BLIND COMMITTEE ON HUMAN BOARD OF TRUSTEES 3650 Clague Road, Suite 102 North Olmsted, Ohio 44070 FEEDBACK REGARDING NPRMS AS PROPOSED Http://www.regulations.gov Department of Justice, Civil Rights Division Regarding NPRM ADA NPRM P.O. Box 2846 Fairfax, VA 22031-0846 Attention: Ms. Janet L. Blizard, Deputy Chief (202-307-0663), 515-0301 (voice), (800)514-0383 (TTY) Overnight Deliveries Disability Rights Section Civil Rights Division U.S. Department of Justice 1425 New York Avenue, N.W. Suite 4039 Washington, DC 20005 Subject Box: CRT Docket No. 105 and CRT Docket No. 106 FR Doc E8-12622 and FR Doc E8-12623 All signatures contained herewith may be used online and are part of this document. Federal Register: June 17, 2008 (Volume 73, Number 117) Feedback Due August 17, 2008 Proposed Rules Title II, Pages 34465 -34508 and Title III, Pages 34509 -34457 From the Federal Register Online via GPO Access (wais.access.gpo.gov) (DOCID:fr17jn08-20) To the United States Attorney General, the Deputy Chief and the Access Board: We the Deaf, Deaf-Blind Committee on Human Rights have reviewed the proposed changes in both Title II and Title III and come respectfully before the United States Attorney General, the Deputy Chief and the Access Board to respectfully submit our comments in regards to the Notice of Proposed Rulemaking (NPRM) Proposal to Revise ADA Regulations under both Title II and Title III (Title II 28 CFR Part 35: Nondiscrimination on the Basis of Disability in State and Local Government Services; Title TIT 28 CFR Part 36: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities). The first comment is that the timeline given of 60 days to read, relate, discuss, and obtain feedback was not adequate given the communication obstacles that must be overcome with such detailed materials, particularly as it relates to the Deaf and Deaf-Blind communities. One hundred and twenty (120) days would have provided an opportunity to more fully relate and gather detailed feedback from the very members these proposed guidelines serve. Our comments are submitted in light of the fact that most businesses in the United States of America are "small businesses" and most new jobs are created by the "small business" or "Mom and Pop" businesses as stated often by President George Bush, Jr. If we continue to exempt small businesses from any standard applications or compliance, how will the citizens of the community that have disabilities to overcome succeed, pursue happiness, etc. if their hope of access is removed? Exempting or giving safe harbor to small businesses as defined in Title III, Page 34520, businesses with annual receipts of less than $6.5 million dollars excludes disability compliance and access accommodations by the disabled citizens to a majority of American businesses; thereby, negating any real progress in Civil Rights and full recognized citizenship. Title III provides blanket exemption for private clubs, Page 34538. That leaves an access accommodation available to ONLY the few large remaining public places and bars access to a majority of small businesses, clubs, organizations, churches etc. for the disabled. 1. Necessary Areas Not Given Due Consideration: In respect to the Architectural Barriers Act of 1968 (ABA), 42 U.S.C. 4151 et seq. the regulations are unequally stacked against the Deaf and Deaf-Blind and the Mentally Disabled Communities and Individuals as there are barriers to accessible attorney areas and witness stands; assistive listening systems.... that have not been considered. We make a strong statement that you have left out a large percentage of the population by those mentally impaired and unable to defend or represent themselves pro se. A large part of the Deaf, Deaf-Blind communities as well as those individuals that might be mentally impaired in some other fashion, must be given equal access to attorneys to represent them in their best interest in, not only criminal, but civil areas as well. The current system leaves this population of people to fend for themselves with nonprofit, more than likely government subsidized attorneys that are ill funded, and prevented by federal law from taking on any potential profit case; thereby preventing them from actually pursuing civil litigation on behalf of this population of people and leaving them to beg for pro bono attorneys that are not sufficiently available. This often leaves indigent disabled individuals that have been denied, prevented or have had removed benefits and services in an ill equipped position to represent themselves (pro se). If they receive representation from a nonprofit attorney, no matter what the circumstances, the nonprofit attorney is prevented by federal law from proceeding on their behalf to a court system. If the mentally impaired, indigent or disabled are made to represent themselves in the administrative process and are not equipped to do so, the administrative process is then "fixed" against the individual as that administrative process is the only thing that a court can review on appeal. If the nonprofit attorney has inadequate funding, the indigent disabled is left to fend for themselves at hearings that always have a taxpayer supported attorney representing the agency involved (Job and Family Services, Social Security Administration, Health Departments, etc.). The Rules of Procedure whether they be Administrative, Civil, etc. are written at a level beyond the average person's ability, let alone ASL or sign language is a different language for the Deaf, Deaf-Blind and/or mentally impaired and make it impossible for the disabled to adequately redress their government. We are simply asking for Equal Protection of the Law. Too often funding for legal aid is unfunded intentionally leaving the disabled with no access to redress their government despite being the target of systematic attacks on benefits and services, regardless of need. The Justice System has been systematically designed to discriminate against our indigent and disabled citizens. These citizens are more likely to find themselves interfacing with local, state and federal government agencies for access to jobs, benefits and services. These individuals find themselves denied access to applications, applications that are purposefully completed by members of the system inaccurately to purposefully deny them benefits and services, with often times the governmental agencies switching social workers, managers, agencies heads, etc. and claiming no knowledge of past behavior the way people with means change their underwear. Their parents and/or guardians that stand up for them are continually threatened both overtly and covertly with removal of the disabled from their care if they should dare press the issue. This is systematically designed discrimination. The system will often threaten the appointment of a Guardian Ad Litem to remove those parental/guardian rights. It is abhorrent but well understood and meant to systematically deny access to one's own government and due process. If guardian ad litems were the answer, the majority of whom are attorneys paid by the system, there would be no discrimination. In fact, guardian ad litems serve themselves first, the system second and their clients are a far third. The entire Justice System of the United States of America needs to be redesigned to allow the indigent and disabled access to the system. To date, our Justice System has been bought and paid for by the people, companies, lobbyists, etc. with means to do so. It is not Justice and Liberty for all, it is Justice and Liberty for the wealthy and politically powerful. We, the Deaf: Deaf-Blind Committee on Human Rights, are sure that the system needs redesign to allow the indigent and disabled equal access and is significant and will have an annual effect 01:$100 million dollars or more on the economy. Perhaps a mandatory justice system rule change that no attorney be allowed to collect dollars from the system without providing equal time and dollars On a pro bono basis to the system might alleviate these injustices and this unconstitutional system. If this Justice System is not altered in a major way, none of the other rights have any significance at all. They are just a bunch of words on paper with no real enforcement behind them. This minority of indigent and disabled individuals are left with no "bill of rights," no right to "pursue happiness," and are left to the politically bought will of the day. The architecture of the system itself is discriminatory. These matters within pertain to the SBREFA, Regulatory Flexibility Act, and Executive Order Reviews as well, Title II, pages 34470,34471, etc. Title III, Pages 34513, 34514, 34517, 34532, 34554, 34555} The access to an interpreter, VIS, VRS, TTY, is sometimes not adequate alone and an attorney is needed as well to defend and protect those benefits and rights that might not otherwise be protected and supplied or even recognized for that matter Title II, program accessibility requires that state and local government agencies provide individuals with disabilities with access to their programs when "viewed in their entirety." A system that provides a qualified attorney for everyone is, not only necessary, but constitutional Access to the system cannot be left to the political will of the day such as slavery, but must protect the rights of the minority no matter how politically unpopular, as our Republic Democracy is suppose to do and the Bill of Rights and the United States Constitution is designed to protect. II. The proposed ADA changes ignore the time that has past and the need for universal compliance. Moreover, the proposed NPRM's allude throughout to the "public entity can demonstrate that the required actions would result in a fundamental alteration or undue burden." We believe that the Deaf, Deaf-Blind populations have been unfairly lumped together with other disabilities that may require major renovation(s) and cost. Most access problems for the Deaf and Deaf-Blind Communities are caused by communication and navigational problems and even the most meager small business with all the recent technology can comply with minimal costs and understanding and support governmental funding and tax breaks of same. Technology and pricing of technology has advanced to the point of affordable accessibility for those willing to engage in same. The proposed regulations are laced with statements, "that the required actions would result in a fundamental alteration or undue burden," and exempting small business. Title II, Page 34474 has a statement "'Moreover, the number of individuals with hearing loss continues to grow in this country as a large segment of the population ages and as individuals live longer." These fundamental alterations or undue burdens should be look at with foresight as meeting the needs of the future populations as well as the present. When seen in the scope of application for generations, fundamental alterations cannot be termed as undue burdens (i.e., page 34486). They should be viewed as necessary for the short term and long term good of the population and nation. Moreover, these assessments of needed disability accommodation need not be an extraordinary burden on business, as by State law, all businesses that employ workers must have Workers' Compensation and all have Rehabilitation Departments, Safety and Service Departments that can do assessments of the businesses to deem and help compliance and these businesses are already paying for this service (Title II, Page 34490, Page 34498, Questions 49, 50, 51 and 52). III. The choice of an interpreter, VIS, VRS, TTY, video phone, video monitors, text phone, etc. must be left up to the individual (user) needing the service. While VIS and VRS technology can provide immediate, access to interpreting services, it is one dimensional communication that is not always well received or well understood by the user. It can be an effective social tool; however, the decision to use it must be left to the disabled individual. Many disabled individuals describe situations where it is not appropriate, perhaps, in an OB/GYN appointment, severe trauma, severe injury, etc. If the individual is lying down, the images received are distorted and often not well understood. American Sign Language and Signed English are three dimensional gestures, symbols, etc. made in relationship to the body of the user. Often times the translation is lost over a one dimensional system and must be continually repeated for clarification and is not always achieved. For some individuals, a VIS or VRS system may serve their needs, but for others, it may impede effective communication. The choice must be left up to the user. VIS and VRS technology has not advanced to the three dimensional hologram (although it exists) available to the user in a cost effective manner as yet, (Title II, Pages 34479,34498,34503, Sec. 35.104, Pages 35408, Sec. 35.160, Title III, Pages 34519, 34520, 34528, 34529, 34530, 34531, 34532, 34554, 34555). Technology, while not perfect, has been a wonderful enhancement to the Deaf and Deaf-Blind communities presenting many access accommodation possibilities that are now cost effective and affordable. Written communication (Title 1lI, Page 34528) , while an option, should never replace a request by a user for a need for a different type of accommodation, citing that many Deaf people have trouble with written communication and written communication should be used in only the most superficial way for immediate communication. It is imperative that the choice of communication is left to the user as opposed to the provider as indicated in the regulations. It is the user that determines whether the communication is understood. IV. Complaint referral. Title II, Section 35.171, 35.172 and 35.190 needs to emphasize the timeliness of referring a complaint (Page 34499, Paragraph 5). V. Service Animal Access (Title II, Pages 34472, 34473, 34477, 34478, 34479, 34480, Section 35.136, 34481, Title III Pages 34515, 34516, 34521, 34522, 34523, 34524, 34552, 34553. This is the one area we struggled with in observing and trying to see the reality of service animals. We believe the proposals do not adequately define what type of accreditation a trained service animal must possess. While we certainly understand the safety of the public at large in regards to exotic animals or zoonotic illnesses or diseases, we think that there can be a balance in a choice of service animal without totally banning large choices that may be effective for an individual to obtain a benefit and still prevent panic in the public or risk to the public. We found, ourselves continually asking, "What type of training does the animal have?" "What is it the animal actually does?" It is for this reason, rather than banning animals to serve, that these animals be made to demonstrate a level of service through an accreditation program(s). It may be that a monkey is aptly trained to perform several acts and can be appropriately vaccinated or muzzled while working to prevent harm to the public. Likewise, it may be that a horse can be aptly trained to perform several acts and can be appropriately vaccinated and allowed limited access to areas as space and weight limits permit. Rather than a ban or an endorsement of domestic animals, all animals need to be looked at on the individual basis and judged by their ability to perform and assessed by their presented risks to the public at large and what type of accommodations that may be necessary in order for the disabled individual to use that animal, if practical. We are proposing a panel of people using service animals study and draft a proposal regarding the accreditations necessary to demonstrate that an animal is indeed a service animal and how that animal can serve without presenting a risk to the public at large and what accommodations may be necessary for the animal itself to achieve a certification status for use. We believe that these programs can be administered through our local animal shelters and members of the community with disabilities with certificates provided for use for presentation for access, along with any foreseen limitations. VI. Exempt certain existing small recreational facilities (i.e., play areas, swimming pools, saunas, and steam rooms). The Civil Rights Act passed in 1964 and the ADA Proposals in 1990 and 1991. We are now at most 44 years into allowing Civil Rights for all Individuals and 18 years minimally. How many more years will we exempt small businesses and individuals from applying the United States Constitution and Bill ofRights to all. TitleII, page 34501 states "the potential economic impact of the revised regulations on small businesses" and the Department attempted to "mitigate this impact with a variety of provisions." It would appear that the NPRM's were written not to benefit the disabled, but to mitigate any impact on small businesses that may voice an unfair and undue burden without proper attempt and thought at rectifying the situation. There is no financial undue burden as these accommodations must be looked at as applying to not only the present but future generations of citizens of the United States. These access accommodations must be subsidized by the governments of the world. These accommodations need not be combative but must have a system to effect a plan in place when presented to a small business. This could be• done through the Workers' Compensation System and Rehabilitation Services. Much like an Individual Education Plan or Individual Service Plan, businesses in cooperation with the individual and the named or unnamed State agencies can work together with the small business to serve the needs of the person, individually and corporately in its' application to the community at large. These mandates that have been excluded from coverage under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503 (2), can be subsidized or costs offset by working together with the employer, service provider, the user or individual and the state agencies already available to provide the most effective access and accommodation for the individual as provided much like in the Individual Education Plan. The Workers' Compensation System and the Rehabilitation Services Commission, etc. are already set up to administer and design an effective Individual Plan in cooperation with all patties. Title II, Page 34506 states that "unless the cost and scope of such alterations is dispropo11ionate to the cost and scope of the overall alterations." Again, for new construction, this interpretation must be looked at more globally, not only for the immediate individual presenting itself, but for the benefit of application it has as the population increases and the need for access accommodations increases, particularly at it pertains to new construction. Title III, Pages 34515, 34533. VII. Safe Harbor (Title II, Title III, Page 34534, 34535, 34538, 34549, 34551) We, the Deaf, Deaf-Blind Committee on Human Rights, believe there should be no more safe harbor for any public entity in regards to accommodations for the Deaf and Deaf-Blind Communities. As stated herein, technology and costs have advanced to the degree that it is now reasonably expected for all to be in compliance. Those public entities have the resources available at their disposal through the state systems to effect the changes needed that affect this special and specific population of people. Again, through each state's workers' compensation system and rehabilitation services system, these services are ready and available to be implemented with a plan for each individual needing an access accommodation. Costs can be supplemented by the federal and state government grants, instead of using funds to nation build for Iraq. VIII. Disproportionality. When the cost exceeds twenty percent (20%) of the cost of the alteration to the primary function area, it need not be consider disproportionate when viewed globally and beyond the presenting individual's need for accommodation. The accommodation has lasting effects beyond the individual. A world.that is prepared to allow each person access to their facilities, is a world better prepared to integrate all of its' people for world government. A house, building or public facility built today for typical individuals may well have need and probably will have need to accommodate individuals with disabilities tomorrow, ten, twenty, fifty years from now and an aging population of people will demand that we had complied earlier on. It is much more cost effective in the present than it will be in the future. Also, the intangible benefits of providing a society's most vulnerable citizens access to their presenting environments, is UN-measurable, including self-value, patriotism, sense of community, respect for one's self and community at large, etc. IX. Language Title II: Page 34469 “…effect of '$100 million or more on the economy” Page 34470 “…disproportionate costs and compared to benefits..” Page 34486 “…undue financial and administrative burdens.” Page 34486 “…tipping point...” (question 26). Page 34498 "… economic advantages" Page 34498 " …undue burden for smaller entities." Page 34501 "Exempt certain existing small recreational facilities…" Page 34501 "...potential economic impact of the revised regulations on small businesses..." Page 34505 "Where an existing play area has less than 1000 square fee, it shall be exempt..." Page 34506 “...unless the cost and scope of such alterations is disproportionate to the cost and scope of the overall alterations." Page 34506 "Rest rooms are not areas containing a primary function." Page 34506 "... deemed disproportionate to the overall alteration, when the cost exceeds twenty percent (20%) of the cost of the alteration to the primary function area." Page 34506 "… without incurring disproportionate costs." Page 34507 "…unless the public entity can demonstrate that the required actions would result in a fundamental alteration or undue burden." Title III: Page34514 "...proposed limitations on barrier removal, service animals, equipment, wheelchairs, and other power-driven mobility devices, auxiliary aids and services (including captioning and video interpreting services)..." Page 34514 "Safe harbor and other proposed limitations on barrier removal." Page 34515 "the Department is concerned that the incremental changes in the 2004 ADAAG may place unnecessary cost burdens on businesses..." Page 34515 "establish a safe harbor..." Page 34515 "inappropriate for barrier remova1." Page 34515 "The proposed standards will go a long way toward meeting the concern of small businesses..." Page 34517 "...unless doing so would be a fundamental alteration..." Page 34519 "comply with or exceed the minimum accessibility requirements of the ADA." Page 34522 “…eliminate certain species..." Page 34530 " undue burdens on such (public) entitles." Page 34532 " safe harbor..." Page 34533 "The safe harbor. by contrast, would exempt even some actions that are readily achievable" Page 34535 " safe harbor..." Page 34535 "…so burdensome.... " Page 34535 "readily achievable" definition for readily? Page 34536 “...exempt..." Page 34538 “:..exempt..." Page 34549 "mitigate any negative effects on small entities." Page 34550 "reduce the financial burden of complying with the 2004 ADAAG." Page 34550 "Sate harbor and other proposed limitation on barrier removal." Page 34550 "cost cap for barrier removal." Page'3455I "sensitive to the potential impact of the revised regulations on small businesses and attempted to mitigate this impact..." The language buried within the text of these proposed NPRMs is designed to negate compliance and does not advance the Civil Rights of the members of the community that have disabilities. While we recognize that there is a cost to provide Civil Rights and the Bill of Rights to all citizens, it is a cost we must expend. Rather than throwing stones at China, we need to free all of our citizens and provide them with Civil Rights. Recently, on July 9, 2008, on a episode of "Jimmy Kimmel Live," Senator McCain was asked if his wife's brewery could supply the nation with "free beer" as a campaign strategy. His answer was it was better than giving them "free attorneys." This nation's indigent and disabled population doesn't need "free beer." They need tax payer attorneys with equal funding and time alloted to obtain the jobs, services, access and benefits they are so often denied for things like food, shelter, clothing, etc. What an insult! The Deaf, Deaf-Blind Committee on Human Rights cannot impress enough the intangible benefits that accessibility for all of its' disabled citizens provides for a society of people. A society of people must look beyond the costs so emphasized in the above quoted statements, and look to the short term and long term benefits received when the above costs are expended and the tragedies that occur when it is not. We have begun nation building in Iraq and have not finished building this nation. We have expended resources in Iraq, while ignoring our own people. We thank the United States Attorney General, the Deputy Chief and the Access Board for this opportunity to relay our comments regarding the NPRM's presented on June 17, 2008 and ask that you strongly consider our recommendations and you have our permission to share these recommendations with the nation. Sincerely and Respectfully Yours, Signature The Deaf, Deaf-Blind Committee On Human Rights Board of Trustees Michael Haynesworth Barb Kuhel Penny Sisson Ellen Spriestersbach Heather Kendel, Director 3850 Clague Road North Olmsted, Ohio, 44070 440-801-1998 (phone, text, tty) 440-801-1978 (fax) 440-801-1948 (VIS, VRS)