Justice Delayed in Federal Disability Regulations

by Lainey Feingold on December 1, 2015

Yesterday I wrote about historic delays in the federal government’s disability rights regulations on issues including accessible websites, safe streets and federal procurement. Other disability rights rules are also stalled. The federal regulatory process is broken and needs to be fixed.

Delays at the Movies

The Department of Justice has pending regulations requiring movie theaters to display films with captioning (for deaf patrons) and audio description (for blind moviegoers). Those regulations began with an Advanced Notice of Proposed Rule Making (ANPRM) in 2010. Yet there are still no final rules, and none are expected until May 2016 at the earliest.

This delay is especially troubling because the movie industry and major disability advocates agree on what those regulations should say. They told the DOJ that during the comment period in a Joint Recommendation submitted in November, 2014.

Again, advocates are not waiting.  Lawsuits, court orders and settlements reached in Structured Negotiation mandate both captioning and description.  One of those settlements is with the Cinemark movie chain — a company that voluntarily agreed to install audio description equipment in theaters across the country. The settlement was announced in 2012.

With advocacy from the blind and deaf communities, Cinemark and other major movie chains have stepped up. But smaller chains still have not installed needed technology that the long-pending regs will require.

Medical Equipment Saves Lives

The Access Board and the Department of Justice have been working on regulations about accessible medical equipment since at least 2010. Proposed Standards were published in February 2012. This month the DOJ told the public not to expect regulations until fiscal year 2018.

Accessible medical equipment (AME) is not just a theoretical idea. It is actual equipment that protects lives and prevents disease. AME allows women who use wheelchairs to have an accurate mammogram. It includes scales that allow wheelchair riders to be weighed, and examination tables that ensure comprehensive examinations. Six years is too long to wait for life saving equipment.

Fortunately, advocates and many health care institutions — and even the Department of Justice — are acting even in the absence of federal agency regulations.

In 2008 Sutter Health announced comprehensive accessibility upgrades, including purchase of accessible medical equipment. Sutter worked with Bay Area advocates and their attorneys to hammer out a settlement under the ADA. Advocates in Boston have also achieved great results negotiating for improved access to health care, including purchase of AME, with Boston’s large hospitals.

Even the Department of Justice recognizes the importance of AME, even though regulations are stalled. More than ten years ago the DOJ negotiated a landmark settlement agreement with Washington Hospital Center that required the medical center to purchase Accessible Medical Equipment.

Under current plans, there will be no federal regulations thirteen years after the DOJ’s Washington Hospital settlement. How many disabled people have been — and will continue to be — harmed by the failure to issue regulations on something so basic as healthcare equipment that works for everyone?

Why Regulations Matter

Even without current regulations, the ADA and Section 508 already require accessibility on the issues covered by the stalled disability rights regulations. So why does excessive delay matter?  Here are just some of the reasons.

  • The lack of current regulations gives businesses, schools and government entities large and small an excuse to do nothing. “We don’t know what to do,” they argue to courts. “We need federal guidance,” they tell the media. These arguments are not valid with a sweeping anti-discrimination law and where the path to accessibility is clear. But the arguments are made nonetheless.
  • The lack of current regulations makes it harder for corporate, government, and higher education champions to do the right thing. It makes it more difficult for these internal advocates to secure the funding they need to build accessibility into business processes and purchase accessible technology and equipment.
  • The absence of regulations is unfair to those entities that are moving forward with accessibility efforts in the absence of regulations. My colleagues and I have negotiated digital access agreements with Major League Baseball, Bank of America, CVS and many other large institutions. These companies have worked with the blind community on access; their competitors should too, and regulations would help.
  • Especially in the area of technology, outdated regulations are unfair to technology consumers, purchasers and producers. By the time any of the regulations discussed here do get issued (assuming they ever do) they may well be immediately out-of-date.
  • The lack of regulations puts added burdens on disabled advocates and their organizations to achieve access. Large movie chains have captioned videos. But a friend in Kansas told me last week that the largest chain in his state has refused to show captioned films — something the ADA already requires, and that regulations would make clear.

Who’s at Fault?

Why can’t the federal government finalize disability rights regulations?  When one arm of the DOJ is a champion of accessibility, why is the regulatory side so incapable of action?

We need transparency to answer this question. Is the hold up at the Office of Management and Budget — the federal agency charged with overseeing all federal regulations?

Are industry groups lobbying against regulations?  Are the DOJ and the Access Board afraid that those groups will sue them to invalidate any regulations they do issue?

Let’s get some straight answers. Let’s stop bureaucratic delay from creating excuses to do nothing. And let’s give advocates and champions the tools they need to make the promise of the ADA a reality.

Lainey Feingold is a disability rights lawyer in Berkeley California.  Follow her on Twitter at @LFLegal.  Read more about her work on her website.

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Filed under: National Politics