Withdrawn: 28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability by State and Local Governments and Places of Public Accommodation; Equipment and Furniture (ANPRM)

F. Electronic and information technology

The Department believes that it is important for individuals with disabilities to have an equal opportunity to use electronic and information technology (EIT) equipment and furniture, such as kiosks, interactive transaction machines (ITMs), point-of-sale (POS) devices, and automated teller machines (ATMs). Individuals with disabilities who engage in financial or other transactions should be able to do so independently and not have to provide third parties with private financial information, such as a personal identification number (PIN). Equipment and furniture are covered for both physical access and effective communication.

Among the available equipment and furniture that use EIT are kiosks, which are interactive computer terminals that provide a wide range of services, including information sharing, ticketing, airline check-in, Internet access, movie ticket sales and DVD rentals, security screening, bill paying, and photo developing. ITMs include POS devices, such as credit card payment terminals, retail store self-checkout stations, machines used for ordering food at quick service restaurants, and gas station pay-at-the-pump systems. The number of POS machines used by businesses and state and local programs and activities (such as at student unions at state colleges and universities) nationwide continues to increase, as does the range of transactions handled by these machines. With the advent of touch screen technology, customers are now required to enter data using a flat screen while reading changing visual information and instructions. Persons who cannot see the flat screen must rely on other people to input their information, including their personal identification numbers (PINs). At least one state (California) already requires all check-out locations with a flat screen POS device to have a permanently attached tactile keypad that is usable by individuals with visual disabilities. Cal. Fin. Code 13082 (West 2006). While some POS devices are mounted at a height that fits within current reach range guidelines, the Department is aware that the fixed upward orientation of some of these devices can impede their accessibility by making it difficult for a person with a mobility disability to view the screen, enter a PIN, or sign an authorization.

The Department's preamble to its 1991 regulations explained that, "[g]iven that § 36.304's focus is on the removal of physical barriers, the Department believes that the obligation to provide communications equipment and devices . . . is more appropriately determined by the requirements for auxiliary aids and services under § 36.303." 56 FR 35544, 35568. The 1991 Standards contained requirements for physical accessibility for ATMs and also required that "[i]nstructions and all information for use shall be made accessible to and independently usable by persons with vision impairments." 28 CFR pt. 36, app A, section 4.34.5. The Department has traditionally taken the position that the communication-related elements of ATMs are auxiliary aids and services, and are not physical elements. On March 22, 2010, the Access Board published an ANPRM seeking public comment on its plans to amend the 2004 ADA/ABA Accessibility Guidelines to include technical guidelines for self-service machines used for ticketing, check-in or check-out, seat selection, boarding passes, or ordering food in restaurants and cafeterias. See 75 FR 13457. In the ANPRM, the Access Board noted the proliferation of inaccessible POS machines, kiosks, and other self-service machines and referenced ADA litigation against various public accommodations over the past ten years that has resulted in numerous settlement agreements and structured negotiations requiring the installation of tactile POS devices.

Question 18. What are the challenges posed by the inaccessibility of EIT, including EIT kiosks, POS devices, and ITMs? Are there issues regarding other uses of EIT that the Department should consider adopting to ensure that EIT equipment is accessible?

i. EIT for effective communication in accessible rooms

The Department's title III regulation, 28 CFR 36.303(d)(1) requires places of public accommodation that provide customers, patients, or clients the opportunity to make outgoing telephone calls on more than an incidental convenience basis to make TTYs available for the use of customers, patients, or clients who have communication disabilities. It has been suggested that the Department should expand the coverage of this section to require covered entities to provide recognize that there are a wide range of devices now used as communication aids by individuals with disabilities. Therefore, the Department seeks comments regarding the incorporation of EIT into this requirement as it applies to accessible sleeping rooms in facilities such as hospitals, nursing homes, hotels, or other places of lodging to permit effective communication by individuals with disabilities, including those who are deaf or hard of hearing.

New technologies have emerged that permit the use of EIT for effective communication. As telecommunication technologies are developing, persons with disabilities are transitioning from analog or legacy devices to digital telecommunication devices. Among these devices are video phones (including web cam), text messaging pagers and computers, and captioned telephones. Video relay services (VRS) permit individuals who use sign language for communication to use a video remote interpreting service (VRI). The relay services are under the jurisdiction of the Federal Communications Commission. Text communications can be divided into two types: real time, and non-real time. Real-time text communications refer to those that are sent and received on a character-by-character basis; the characters are sent immediately once typed and also displayed immediately to the receiving person. Non-real time communications rely on messaging capabilities where users "type-enter-wait-read-respond-reply"—e.g., short messages service (SMS) texts, multimedia messaging service (MMS), instant messaging (IM), text chat, and email.

Question 19. What types of EIT would permit individuals with communication disabilities to most effectively communicate from an accessible hospital room, nursing home facility, guest or sleeping room? Should the Department regulate effective communication from such facilities? What are the costs associated with various types of EIT in such settings?

ii. Scoping and triggering events for EIT equipment

The Department is considering possible criteria for establishing scoping and triggering events for EIT devices and for particular features of such devices, such as tactile controls or voice output. Such criteria might include the total number of EIT devices in a certain facility.

Question 20. What are appropriate scoping criteria for the availability of accessible EIT and triggering events for the replacement or refurbishing of EIT devices, including kiosks, ITMs and ATMs, to ensure accessibility?