Proposed revisions to Americans with Disabilities Act Access Guidelines
We thank Howard Chabner, a frequent contributor to Global Access News (and an experienced attorney), for submitting the following input on the proposed revisions to the Americans with Disabilities Access Guidelines. There is still time to provide your own input that could affect future access for disabled people.
Dear Friends and Colleagues:
This email is being sent to professional disability access advocates and to friends who are interested in access issues but do not follow developments as closely as professionals. To the former, I apologize for covering ground you already know. The US Department of Justice issued a notice of proposed rulemaking regarding proposed revisions to Title II (government entities) and Title III (public accommodations). The latter includes new Americans with Disabilities Act Access Guidelines (ADAAG) that would apply to new construction, alterations and additions but not to existing facilities that are subject only to the readily achievable standard. The proposed new ADAAG was developed by the US Access Board several years ago.
The public has an opportunity to comment on the proposals. The deadline is August 18, 2008. Comments can be emailed to www.regulations.gov or sent by regular mail to the DOJ. The proposals, and further information about how to comment, are available at the DOJ website www.ada.gov . The specific link is http://www.ada.gov/NPRM2008/ADAnprm08.htm
The proposals are extensive and complex, and have been the subject of much comment before the notice of proposed rulemaking. I intend to comment on a few key issues:
1. The new guidelinesí failure to address the shortage of accessible hotel rooms and, especially, hotel rooms with roll-in showers (the new guidelines keep the required minimum percentage of accessible hotel rooms at 2%, plus, for hotels a 51 rooms or more, an additional 1% with roll in showers).
2. The new guidelinesí failure to address the shortage of accessible toilet stalls at airports.
If you agree that these areas have been significant barriers that should be addressed in the new guidelines, I urge you to submit comments. Below I'm attaching a draft of my comments, which I have not yet sent. You are welcome to borrow freely in submitting your own comments.
I am still going through the
proposals and may comment on a few other issues. However, except for
professionals involved with these regulations on a daily basis, it would
be nearly impossible for anyone to provide comprehensive comments.
Other areas Iím considering commenting on are: 1. Restrooms -- the new
guidelines would increase the required amount of side transfer space
adjacent to toilets, which is excellent. The new guidelines would be
I would appreciate any comments, advice, feedback etc. on any of these issues. Also, if you're aware of any other areas addressed by the proposed guidelines that you think I would be interested in, please let me know. Thank you.
United States Department of Justice
Re: Comments on Proposed
Ladies and Gentlemen:
I have facioscapulohumeral muscular dystrophy, began using an electric wheelchair in 1990 and have not been able to walk at all since 1996. These comments are submitted in response to the notice of proposed rulemaking to revise the US Department of Justice ADA regulations, including the ADA Standards for Accessible Design. Thank you for the opportunity to comment and for your work on revising the regulations.
Section 224.2. Transient Lodging. Guest Rooms with Mobility Features.
The minimum number of accessible guest rooms without roll-in showers and with roll-in showers required under the proposed guidelines is identical to the number required in the existing ADAAG. (Existing ADAAG Section 9.1.2.) For facilities of more than 500 rooms, at least 2% of the total number of guest rooms must be accessible rooms without roll-in showers and an additional 1% must be accessible rooms with roll-in showers. For facilities of 500 or fewer rooms the percentage is somewhat larger - around 4% to 4Ĺ% total depending upon the size of the facility - but represents a very small absolute number. In this discussion I use the word ďhotelĒ to refer to all types of transient lodging.
There is and has always been a shortage of accessible rooms, and it is often difficult to get one. Keeping the required minimum the same completely ignores this problem. I urge you to require a minimum of 12% accessible rooms for facilities with more than 75 rooms (with minimums of one accessible room for facilities of one to four rooms; two accessible rooms for facilities of five to 10 accessible rooms; three accessible rooms for facilities of 11 to 25 rooms; six accessible rooms for facilities of 26 to 50 rooms; and nine accessible rooms for facilities of 51 to 75 rooms) and to require that all accessible rooms have roll-in showers. For small facilities undergoing alterations and additions, there could be a modified schedule; see below. For comparison purposes, itís important to note that the existing and proposed regulations for hospitals and similar facilities that donít specialize in treating conditions that affect mobility require that at least 10% of patient sleeping rooms be accessible. (Existing ADAAG Section 6.1. Proposed Section 223.2.1.)
Considering the lead time required to plan, finance, permit and execute new construction and major alterations, if DOJ were to increase the minimum accessible room requirements now, it would still take many years for the critical shortage of accessible guest rooms to be alleviated. Because the regulations are amended infrequently, this round of revisions represents perhaps the only opportunity in the next couple of decades to address the critical shortage of accessible guest rooms.
Accessible Guest Rooms in General
During the time Iíve used a wheelchair, Iíve traveled moderately frequently to visit family and friends and for vacation, and somewhat less often for business. Though I usually make reservations months or weeks in advance, Iíve often been unable to reserve an accessible room at many hotels because none have been available. Other times, Iíve reserved an accessible room well in advance but arrived at the hotel to find all the accessible rooms occupied. On other occasions, itís been a scramble to get the accessible room that I had reserved. And when Iíve had to travel on short notice, such as on business, itís been especially difficult to find an accessible hotel room.
Here are just a few
examples. (I always request a room with a roll-in shower, but these
examples all involve situations in which I was told that there were no
accessible rooms of any type.) In July 2008 I was in
In Houston several years ago for the bat mitzvah of our friendsí daughter, we arrived at the Doubletree in late afternoon, where we had reserved an accessible room six weeks in advance and where other out-of-town guests were staying, only to be told that all the accessible rooms were occupied. In the pouring rain we visited several other hotels before finding one with an accessible room available; it had a higher rate than the group rate we had booked at the Doubletree and was further from the bat mitzvah. This took two hours; we were harried, tired and late; and we missed a celebratory dinner that evening. We were unable to stay with the other out-of-town guests.
Every person I know in a wheelchair who travels has had many similar experiences!
In determining what a reasonable number of accessible hotel rooms is, itís essential to consider not only the number of wheelchair users, but also the number of people who have difficulty walking and require accessible rooms. These people use the grab bars near the bathtub, shower and toilet in accessible rooms. Similarly, many people who have difficulty sitting and standing find it much easier and safer to use the high toilets found only in accessible rooms.
According to the U.S. Census
Bureau, in 2002 there were an estimated 2.7 million Americans age 15 and
older who used a wheelchair (1.2% of this age group), and 9.1 million
who used a cane, crutches or walker (4.1% of this age group). (See
Appendix A, Analysis of the Proposed Standards, references data from the
The limited number of accessible rooms has many negative, discriminatory and costly consequences. As the conference example above illustrates, it is almost impossible to hold a medium size or large conference in which even a significant minority of the attendees require accessible rooms and have everyone be able to stay at the hotel hosting the conference.
The limited number of accessible rooms means it is much more difficult, and sometimes nearly impossible, for people with significant mobility disabilities to travel at the last minute, because often all the accessible rooms are already booked. Although it is prudent to reserve as far in advance as possible, there are situations when this canít be done: family emergencies; business travel that arises quickly; and, especially in this era of frequent and long airplane flight delays (and cancellations), flight delays or cancellations that require an overnight stay near an airport. These are the very situations in which a dependable, truly accessible room is most urgently needed. Similarly, when a disabled person arrives at a hotel to find either that the accessible room he or she reserved is unavailable or that the room is not truly accessible, he or she needs to be able to find an accessible room at another hotel on essentially no advance notice.
The times in which travelers are best able to plan in advance are the holidays, summer vacations and other peak travel times during which hotels are most likely to be heavily occupied. There is a critical need for an adequate supply of accessible rooms during these peak times.
Hotels are a key refuge for
people forced to evacuate their homes during natural disasters and
terrorist attacks. My wife and I were in
The shortage of
accessible rooms makes it much more difficult for families with more
than one disabled person to travel together. For example, my father
uses a wheelchair due to post-polio. A few years ago we tried to make
reservations at a small, charming hotel on the
The shortage of accessible rooms limits the choices disabled people have in lodging type, location, pricing and amenities, and makes it far more difficult for disabled people to take advantage of last minute airfare and hotel specials. Over the years Iíve had to pass up many good discounts because there were no accessible rooms available.
Because only one accessible room is required for a lodging of one to 25 guest rooms, and only two for lodgings of 26 to 50 rooms, and in both cases no rooms with roll-in showers are required, people with mobility impairments have far less opportunity than everyone else to stay at small, charming and unique hotels, inns and B&Bs.
The existing and proposed regulations require that accessible rooms be dispersed among classes of rooms, including room type, number of beds and other amenities, with the goal being to provide disabled guests a range of choices comparable to the choices provided to other guests. (Proposed Section 224.5. Existing ADAAG Section 9.1.4.) But with such a small percentage of accessible rooms required, choice is severely limited in all but a very large hotel. In my experience and those of many friends and acquaintances who use wheelchairs, often there is not a meaningful choice.
Increasing the required minimum number of accessible rooms would also provide a margin of error. Even with the best reservation system and the best intentions, it can be difficult for a hotel to accommodate each guestís preferences. People change their plans at the last minute, including staying longer than reserved. Human errors occur. Computers crash. Travel conditions change. With significantly more accessible rooms available, errors could be fixed without displacing one guest to make room for another. Instances of disabled travelers being turned away because no accessible room is available despite their having reserved one would be far less frequent. This would also benefit hotels by increasing hotel occupancy rates and revenues, decreasing claims and litigation, and building customer loyalty instead of fostering frustration. Having more accessible rooms would also enable hotels to release some of the accessible rooms to able-bodied people earlier than they currently are permitted to do if they have not been reserved by disabled people.
Increasing the minimum requirements wouldnít be burdensome or unreasonably expensive for hotels. The new regulations would apply to new construction and alterations, but not to existing facilities that are not being renovated. For new construction, the increased cost would be relatively minor; it has been widely noted for many years that providing access adds a relatively small amount of cost in new construction. For alterations and additions, the schedule proposed above could be modified for small facilities so that they wouldnít be required to make all or most of the altered or additional guest rooms accessible, but would still be required to increase the number of accessible rooms significantly.
Having substantially more
accessible rooms would not make hotels less desirable for able-bodied
people. For an able-bodied person, the only potential disadvantage of
staying in an accessible room would be having a shower instead of a
bathtub, but this is a small disadvantage. (See the discussion of
roll-in showers, below.) The amount of stigma or discomfort able-bodied
people feel in 2008 in occupying a room with grab bars and a high toilet
is far less than when the
Accessible Guest Rooms with Roll-in Showers
As insufficient as the required number of ďregularĒ accessible guest rooms is, the required number of accessible guest rooms with roll-in showers is even worse - zero for hotels of 50 rooms or fewer, one for hotels of 51 to 100 rooms, and 1% for large hotels. Regardless of whether or not DOJ increases the required number of accessible guest rooms, I strongly urge you to require that all accessible guest rooms have roll-in showers. Indeed, it is odd even to consider a guest room without a roll-in shower to be accessible, given how few wheelchair users are able to use a bathtub.
Showering is not only essential for hygiene and comfort, but medical professionals agree that a shower is medically important for circulation, bones, muscles and joints. Without a roll-in shower, many wheelchair users are completely unable to shower. It is simply not right for hotels to deny us the opportunity for basic hygiene, health, relaxation and safety that they afford everyone else. I know from extensive personal experience how uncomfortable and unhygienic it is to be unable to shower during a hotel stay of a few days, and how much worse it is for a stay of a couple of weeks. One feels like one is camping, not staying at a hotel, except the prices are much higher. Many of the occasions for which people travel - celebrations, family events, holidays, funerals, conferences, business meetings and interviews - are those for which good hygiene and appearing oneís best are especially important. The air on airplanes is dry and unhealthy, which makes it essential to be able to shower in oneís hotel.
Roll-in showers are essential because many people who use wheelchairs are unable to use a bathtub, even if the bathtub has a seat, because of insufficient trunk and upper body strength. Many, including myself, are completely unable to transfer to a tub seat. Proposed Regulation Section 607 permits removable tub seats; despite the requirement of proposed Section 6.10.2 that removable seats be capable of secure placement, there is simply no way that removable seats can be as secure as the seats in roll-in showers, which are secured to the wall. Also, tub seats have no back to hold onto when transferring and they provide no back support at all, whereas the seats in roll-in showers are mounted on the wall, which provides support. But whether a bathtub has a removable seat or a fixed seat at the end, transfer is still impossible for many people and more difficult for some because, among other things, one has to get oneís legs past the side of the bathtub, whereas a roll-in shower has no obstacles. Bathtubs and the adjacent area are inherently more cluttered than roll-in showers and present major obstacles. The proposed regulations regarding bathtubs are quite complex, and itís likely that many hotels will deviate from them by improper grab bar placement, not enough grab bars, insecure tub seats, obstructions near the bathtub, etc., all of which would make transfer to a tub seat even more difficult (for those who are able to do it at all).
Far more people with significant mobility impairments are able to use roll-in showers than bathtubs. Some people who can walk only with difficulty and cannot walk up stairs are unable to stand in a bathtub because they canít step over the side, but they are able to shower standing in a roll-in shower. For example, during the years I was able to walk with difficulty, I wasnít able to step into a bathtub but could walk directly into a roll-in shower. I now travel with a shower wheelchair, which enables me to shower easily in a roll-in shower but not at all in a bathtub. Many people are similarly situated. Moreover, with a roll-in shower, some people who use manual wheelchairs can shower in their wheelchairs without having to transfer at all.
Some people need assistance showering. Roll-in showers provide plenty of space for caregivers, whereas there is far less space in a bathtub for caregivers to help someone seated on a tub seat, and far more likelihood of water getting all over the bathroom floor. These differences are a matter not only of hygiene, convenience and efficiency, but of safety.
The problems, obstacles and consequences discussed in the preceding section of this letter regarding the shortage of accessible rooms in general are even worse for rooms with roll-in showers, because the required number of rooms with roll-in showers is so tiny. In particular, if one requires a roll-in shower, there is almost no choice of room type except in very large hotels. One of the most important choices of room type for all travelers is between a room with one bed and a room with two. It essential that people who require roll-in showers have the option of traveling with spouses or partners, in which case one bed is required, and with caregivers, in which case two are.
The current and proposed regulations donít require any roll-in showers for hotels of 50 rooms or fewer. Many small hotels and B&Bs have no rooms with roll-in showers, which means that travelers who use wheelchairs often have to choose between staying at a charming, unique, accommodation with a personal touch and forgoing a shower, or forgoing this type of accommodation in order to be able to shower.
In 2006, in planning a trip
Requiring all accessible guest rooms to have roll-in showers would disadvantage few people and would be a small price to pay for enabling all people with significant mobility impairments to shower. Very few wheelchair users are strong enough to lower themselves into a bathtub and raise themselves out of it. Of the subset of wheelchair users who are able to transfer to a tub seat at all, the overwhelming majority merely transfers to the tub seat and takes a shower; they donít have the benefit of immersing themselves in a bath. In effect, the bathtub functions as a shower, not as a bath. These people would be no worse off if roll-in showers were required instead of bathtubs.
It is true that having more rooms without bathtubs would deprive able-bodied people using those rooms of the benefit of taking a bath, but, according to several hotel managers Iíve spoken with, most people donít bathe at hotels, they shower. The exception is people staying in rooms with Jacuzzis, whirlpools and similar specialty bathtubs. If the changes proposed in this letter are accepted, 88% of the rooms could still have only bathtubs (and all rooms could have both a bathtub and a roll-in shower); this would be a sufficient percentage to accommodate nearly everyone who wants to take a bath and would allow plenty of capacity for rooms with Jacuzzis, whirlpools and other specialty bathtubs.
Hotels wouldnít be disadvantaged by these proposed requirements. A roll-in shower requires the same amount of space as a bathtub. The cost of roll-in showers in new construction and room additions would be roughly equivalent to that of bathtubs, depending upon what type of surface (marble, ceramic tile, synthetic sheet goods, etc.) were used.
As noted in proposed Advisory 608.1, in many bathrooms, especially small ones, an added advantage of a roll-in shower is that it can create more room to maneuver a wheelchair, and especially more side transfer space adjacent to the toilet. This is because a roll-in shower is open on the side facing the rest of the bathroom, in contrast to a bathtub, the side of which presents a barrier.
The accessible hotel room requirements in the existing ADAAG seem to have been developed using the paradigm of wheelchair users as people with spinal cord injuries, many of whom have significant upper body strength. The new regulations should take into account the lodging needs of people with all types of mobility impairments, including those with other types of injuries, neuromuscular diseases, neurological conditions, immune system diseases and other degenerative conditions.
Information about Accessible Guest Rooms
The regulations should require that hotel websites and all literature and promotional materials shall include the number of each type of accessible guest room. For some hotels, it is still difficult to find out exactly how many accessible guest rooms there are and whether the hotel has rooms with roll-in showers, even though I always try to speak with a hotel employee located on site rather than with a hotel chainís central reservation system. Also, in a related advisory, hotels should be encouraged, although not required to post photographs of the accessible rooms on their websites. When it comes to access, a picture truly is worth a thousand words.
Section 213.3.1. Toilet Compartments
In toilet facilities with more than one toilet stall, the proposed guidelines require that at least one be wheelchair accessible and, where there are six or more toilet stalls (or a combination of six stalls and urinals), at least one additional toilet stall must be ambulatory accessible. This means that in a large restroom of 20 stalls, still only one wheelchair accessible and one ambulatory accessible stall are required. These are the same requirements as in the existing ADAAG. (Existing ADAAG Section 4.22.4.)
I urge you to increase the required number of wheelchair accessible stalls in airports so that at least two toilet stalls be wheelchair accessible in toilet facilities with five or fewer total fixtures and, in toilet facilities with six or more total fixtures, at least 50% (rounded up) of the toilet stalls be wheelchair accessible. Requiring this amount of wheelchair accessible toilet stalls would obviate the need for a separate category of ambulatory accessible stalls. I have no opinion regarding the number of accessible stalls in other large restrooms, such as in stadiums. Perhaps a similar requirement should apply at train stations. Itís true that having a separate rule for airports would add a bit of complexity, but airports are unique and the need is critical.
In almost every American airport Iíve ever been in, there arenít nearly enough wheelchair accessible toilet stalls. Many of the restrooms at airports have a large number of stalls but typically have only one or, occasionally, two wheelchair accessible stalls. The majority of the time, the one wheelchair accessible stall is occupied by an able-bodied man who has a lot of luggage and, understandably, wants to use a large stall to protect his luggage; quite often, several regular stalls are vacant. Quite often I have to go to two or sometimes three different restrooms to find a vacant accessible stall. Sometimes it isnít feasible to seek other restrooms because they are on the other side of the security checkpoint. Sometimes I use the restroom in airline frequent flyer clubs even though Iím not a member, because nothing else is available. Moreover, because many wheelchair users take significantly longer to use the restroom, when the one accessible stall is occupied by a wheelchair user, there is a long wait to use the accessible stall.
Disabled people have a critical need for accessible restrooms readily available at airports. Unlike most other public accommodations, an airport is only one step in a long, complex, uncertain journey, and is only one part of a complex, interrelated system. Most airplanes on domestic flights donít have accessible restrooms. The restrooms on newer aircraft with two aisles, which are supposed to be accessible, really arenít; and, in any event, far fewer domestic flights are on two aisle aircraft in recent years. Because passengers in wheelchairs are usually the first ones on the airplane and the last ones off (and, because of having to wait for their wheelchairs and for the assistance providers, often donít leave the airplane until much later than everyone else), and because it takes longer for us to pass through security than it does for able-bodied people, the time available during layovers is quite limited. Moreover, it is more difficult for passengers in wheelchairs to deal with luggage, especially in restrooms.
The shortage of wheelchair accessible toilet stalls at airports is important not only during layovers, but at the beginning and end of a trip. Passengers in wheelchairs are asked to arrive at airports earlier than others. After a flight, at many airports it can take far longer to find accessible transportation than regular transportation. In some cities accessible transportation is very limited and itís necessary to reserve accessible transportation in advance; if the driver is waiting, especially if my flight has arrived late, Iím reluctant to keep him waiting further while I go from one restroom to another in the airport trying to find a vacant accessible stall. So the total journey, from leaving oneís home or lodging, going to the airport, waiting at the airport, being on the flight, and traveling from the airport after landing to oneís lodging or home, is significantly longer for wheelchair travelers. Moreover, if one arrives at a hotel to find that oneís room is not accessible, that adds to the time without the opportunity to use the restroom.
Not being able to use the restroom at an airport because the only accessible stall is occupied is incomparably worse than a similar situation in a restaurant, store, office or similar public accommodation or commercial facilitate. If a restaurant or store restroom is occupied for a long time or out of order, often one can use the restroom in the establishment next door or down the block. If the restroom in an office building is occupied, one can find one on another floor. Not so on an airplane journey.
Sections 382.23(b) and (e) of
the Air Carrier Access Act regulations require airports to be accessible
to the standards of Title III of the
Restrooms at airports are heavily used, and there is a trade-off between the size and number of stalls. But even at busy times, often some stalls are vacant at airport restrooms with many stalls. It is understandable and foreseeable that many able-bodied people use wheelchair accessible stalls at airports because they want more space for their luggage, and as a practical matter it would be impossible to prevent them from doing so. Moreover, because many wheelchair users take significantly longer to use the restroom, when the one accessible stall is occupied by a wheelchair user, there is a long wait to use the accessible stall. The only way to ensure that travelers who use wheelchairs have a fair opportunity to use the restroom at airports is to significantly increase the required number of wheelchair accessible toilet stalls at airports.
In addition to a reasonable
number of accessible stalls in multi-stall restrooms, airports should be
required to provide large, single-user, lockable accessible restrooms
for disabled people who require assistance. We saw a restroom of this
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