Report- NC Children with Complex Disabilities

Disability Rights North Carolina has released a new report on our state's failure to adequately serve children with complex mental health care needs. Check it out on our website: http://www.disabilityrightsnc.org/.

Eugenics Compensation Task Force Finalizes Recommendations

This morning the Governor's Eugenics Compensation Task Force met to finalize its recommendations. The Task Force recommended a cash payment to living survivors of forced sterilization in the amount of $50,000. In addition, provision of mental health services for victims and educational measures to teach the history of the Eugenics Board in North Carolina were among the recommendations. A group of victims and their family members expressed disappointment in both the amount of compensation recommended and the exclusion of family members of deceased victims. The recommendations will be sent to the Governor. The legislature will ultimately be responsible for deciding what compensation, if any, is provided to victims. Unlike previous meetings of the task force, there was no time alotted for public commnet during this meeting.

Off Target, Out of Touch- HHS Oversight Committee

The Joint Health and Human Services Legislative Oversight Committee met this week. The agenda was focused on IT and database projects at the Department. In a six-hour meeting the $139 million Medicaid budget shortfall did not even make the agenda. WRAL's coverage of the meeting is here.

Disability Rights NC and other groups concerned about funding for vital Medicaid services visited the offices of legislative leadership who described the budget shortfall variously as "a cash flow problem," and "the result of mismanagement." Legislators were notified during the budget process by the Governor and advocates that the budget they set would be impossible to implement. It turns out we were right.

Disability Rights NC, together with 23 other organizations, has called on the legislature to appropriate funds to fill the gap.

CORRECTED-House Health and Human Services Committee 11/29/11

This morning the House Committee on Health and Human Services met on short notice to reconsider H433, Local Human Services Administration. This bill previously passed the Committee in its fourth edition in June after much discussion. Another version, edition 3, was passed in the full Senate. The legislation would allow NC counties to consolidate several human services functions under a single authority, including: the current functions of health departments; departments of social services; and area mental health, developmental disabilities, and substance abuse services. Wake and Mecklenberg Counties already have this authority.

The Committee decided today to go back to the Senate-passed third edition in an effort to have the bill ratified today, since the Senate recessed last night and will not consider any more bills during this mini-session. Democrats in the Committee raised concerns over the process by which the change was made, the precedent of allowing the Senate to dictate the substance of bills passed by the House, and about the removal of certain provisions agreed to in the fourth edition of the bill. Notably, the fourth edition included: a provision allowing county commissioners to subject employees of the consolidated agencies to the State Personnel Act, an exemption for any hospital authority assigned to provide public health services, an incentive program providing monetary incentives for public health improvement, and changes to the list of “essential public health services” under 130A-1.1(b).

The bill failed on a procedural vote on the House floor. Expect this bill to come back in February.

Joint Legislative Oversight Committee on the Department of Health and Human Services

The HHS Oversight Committee met November 8 to get updates from the Department of Health and Human Services on a number of issues important to people with disabilities in NC. A great deal of the time was spent on efforts to meet the budget requirements imposed by the legislature this summer. Secretary Cansler reported the current shortfall for Medicaid is $139 million. As he has said before, Cansler indicated that the only way to fill that gap without additional money is to cut provider rates by 18% for the last three or four months of the fiscal year or to eliminate all Medicaid optional services (except pharmacy) during the same time period. No cuts to services could be implemented immediately because such changes require approval of federal authorities. Perhaps the brightest spot in the session was that Chairman Nelson Dollar indicated the legislature found both of those possibilities untenable and would find a way to avoid them. No word on where the money would come from. DHHS’s responses to questions posed by committee members is available at the committee website here.
Dr. Beth Melcher gave the Department’s update on the implementation of the 1915 b/c Medicaid waiver. She indicated the process is moving forward, with the identification of the entities that will eventually become the Managed Care Organizations running the waiver programs completed in October. Eleven such organizations have been identified. Those organizations will either subsume or partner with other LMEs to provide services statewide.

Health Insurance Exchange Proposed Rule Published

Yesterday, the US Department of Health and Human Services (HHS) released two long-awaited proposed rules relating to the establishment of Exchanges, state-based marketplaces where individuals and small businesses can purchase health insurance coverage. One proposed regulation sets forth the minimum functions of an Exchange and the certification of qualified health plans (QHPs) - online here. In a related proposed rule, HHS establishes a risk adjustment system to assure health care coverage for higher-risk populations - online here.


Additional regulations related to Exchanges will be issued at a later date. These future regulations will address issues including: standards for individual eligibility for participation in an Exchange, the appeals process for eligibility determinations, the definition of essential health benefits, payments of the premium tax credit, and quality standards for Exchanges and QHPs issuers.

Under the proposed rules, the marketplaces will have to post information online about price and quality, offer specific standardized plans and set an annual open enrollment period. Despite lobbying from consumer groups, insurers will be allowed to hold seats on exchange oversight boards and states will not be required to negotiate with plans on price or benefit offerings.  Although there is a deadline of Jan. 1, 2013 for states to show they will have an exchange up and running a year later, the proposal offers some wiggle room: States showing progress will be granted "conditional approval."  HHS is seeking public comment over the next 75 days.

Upcoming Federal Regulations

A number of federal regulatory agencies have published their Semi-Annual Regulatory Agendas.  A Semi-Annual Regulatory Agenda is where the federal regulatory agencies are supposed to notify the public about their plans for regulatory actions over the next year or two. The “Timetable” dates are aspirational but informative.

From the Access Board’s Semi Annual Regulatory Agenda: It appears that a Notice for Proposed Rulemaking (NPRM) on accessible medical equipment will be published in the Federal Register fairly soon and some regulations that have had the comment period completed for some time are scheduled for publication at the end of the year.

• Accessibility Guidelines for Shared Use Paths: This regulation will establish accessibility guidelines for shared use paths (typically designed for bicyclists and pedestrians and are used for recreation and transportation purposes) to ensure that they are accessible to and usable by individuals with disabilities. The guidelines are expected to be adopted as enforceable standards in separate rulemakings by the Department of Justice and the Department of Transportation for public and private entities subject to the American with Disabilities Act and Section 504 of the Rehabilitation Act, which prohibit discrimination on the basis of disability. The General Services Administration, Department of Defense, and Department of Housing and Urban Development are also expected to adopt the guidelines as enforceable standards for facilities constructed or altered with federal funds that are subject to the Architectural Barriers Act. (Advanced Notice of Proposed Rulemaking (ANPRM) 3/28/2011, Comment Period ended 6/27/2011)
• Accessibility Standards for Medical Diagnostic Equipment: This regulation will establish minimum technical criteria to ensure that medical equipment used for diagnostic purposes by health professionals in (or in conjunction with) physician's offices, clinics, emergency rooms, hospitals, and other medical settings is accessible to and usable by individuals with disabilities. (NPRM projected sometime in July, 2011 and comment period ending September, 2011)
• Americans With Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities: Public Rights-of-Way:  This regulation will amend the accessibility guidelines for the Americans With Disabilities Act (ADA) and the Architectural Barriers Act to include requirements for public rights-of-way. (NPRM projected July, 2011)
•  Americans With Disabilities Act (ADA) Accessibility Guidelines for Transportation Vehicles: This regulation will revise and update the accessibility guidelines for transportation vehicles subject to the Americans With Disabilities Act. (NPRM 07/26/2010, Comment Period End 11/23/2010, Final Action projected December 2011)
• Americans With Disabilities Act (ADA) Accessibility Guidelines for Transportation Vehicles: Passenger Vessels: This regulation will amend the Americans With Disabilities Act (ADA) Accessibility Guidelines for Transportation Vehicles to include additional requirements for ferries, excursion boats, and other passenger vessels. (ANPRM 11/26/2004, NPRM projected December 2011)
• Architectural Barriers Act (ABA) Accessibility Guidelines for Outdoor Developed Areas: This regulation will establish accessibility guidelines for outdoor developed areas designed, constructed, or altered by Federal agencies subject to the Architectural Barriers Act. (NPRM 06/20/2007,  Final Action projected December 2011)
•  Telecommunications Act Accessibility Guidelines; Electronic and Information Technology Accessibility Standards: This regulation will revise and update the accessibility guidelines for telecommunications products subject to section 255 of the Telecommunications Act of 1996, and accessibility standards for electronic and information technology subject to section 508 of the Rehabilitation Act of 1973, as amended. (ANPRM 03/22/2010, ANPRM Comment Period End 06/21/2010, NPRM projected December 2011 )

From the HUD Semi-Annual Regulatory Agenda:

• Supportive Housing for the Elderly and Persons With Disabilities: This proposed rule would amend HUD's regulations governing capital advances for the following two programs: Section 202 Supportive Housing for the Elderly and section 811 Supportive Housing for People With Disabilities. This proposed rule will provide the mixed finance regulations with more flexibility in order to attract private capital and expertise to the construction of supportive housing for the elderly and disabled. The proposed regulatory changes will streamline the use of low income tax credits as well as funding from other sources. These proposed amendments will permit the mixed finance program to expedite the development of needed affordable housing projects. NPRM projected 11/00/2011.
•  Multi-Family Housing Service Coordinators : This proposed rule would promulgate regulations for the Service Coordinators in multifamily housing development. Service coordinators provide assistance to elderly and disabled families in and in the vicinity of HUD-assisted rental housing developments. The regulations would establish requirements related to service coordinator qualifications, eligible funding sources, and eligible activities. NPRM projected 12/00/2011.
• Affirmatively Furthering Fair Housing: This rule would provide fair housing performance standards for the requirement to affirmatively furthering fair housing. The Department seeks to foster effective fair housing strategies and to provide clear guidance to local communities, public housing agencies, and assisted housing providers to help them in their efforts to responsibly identify and solve fair housing problems, as these recipients strive to achieve equal opportunity in housing for all. To that end, the rule is intended to provide specific standards and the bases upon which these requirements would be measured--both for purposes of receiving HUD funds and to aid the Department in determining that recipients are in compliance with applicable requirements. NPRM projected 12/00/2011.
• Nondiscrimination Based on Disability in Multi-Family Homeownership Projects: This rule would revise HUD's accessibility regulations applicable to multifamily homeownership projects receiving HUD federal financial assistance to achieve three primary purposes. First, the proposed rule would amend the definition of "multifamily housing project" to provide that the term includes all multifamily housing projects funded by HUD that contain five or more dwelling units regardless of whether the units are rental units or homeownership units. Second, the proposed rule would require the construction and alteration of multifamily housing projects containing homeownership units for sale to meet the same accessibility requirements as the construction and alteration of rental units. Third, the proposed rule would require that recipients selling homeownership units with accessible features undertake marketing and outreach efforts, and provide preferences to qualified persons with disabilities who need the features of the units. These proposed changes are designed to ensure that multifamily housing constructed or altered for homeownership with HUD funds includes units that have accessible features, thereby ensuring that HUD and recipients of HUD funds meet their obligations to make available affordable homeownership housing for persons with disabilities. NPRM projected 12/00/2011.
• Equal Access to Housing in HUD Programs--Regardless of Sexual Orientation or Gender Identity:  Through this final rule, HUD strives to ensure that its core programs are open to all Americans regardless of sexual orientation or gender identity. As the nation's housing agency, HUD programs are designed and administered to meet the national goal of a decent home and suitable living environment for every American. It is HUD's responsibility to ensure that all otherwise eligible organizations, entities, individuals, and families have equal access to HUD programs and have the opportunity to compete fairly for HUD funds without being subject to arbitrary exclusion. There is evidence, however, that lesbian, gay, and bisexual, and transgender (LGBT) individuals and families are arbitrarily excluded from some housing opportunities. NPRM 01/25/2011,NPRM Comment Period End 03/25/2011, Final Action projected 09/00/2011.
• Standards Governing Harassment Under the Fair Housing Act: The proposed rule would amend HUD's Fair Housing Regulations to establish standards that the Department will use in harassment cases under the Fair Housing Act. The Department seeks to provide clear guidance for the benefit of housing consumers and providers, as well as legal practitioners for evaluating sexual harassment claims under the Fair Housing Act.  NPRM projected 12/00/2011.
• Implementation of the Fair Housing Act--Disparate Impact: This proposed rule would harmonize existing standards for determining when a housing practice with a discriminatory effect violates the Fair Housing Act. The proposed rule would also discuss the liability standards where a facially neutral housing practice has a discriminatory effect.  NPRM projected 12/00/2011.
• Economic Opportunities for Low- and Very Low-Income Persons: This proposed rule would revise HUD's regulations found at 24 CFR part 135, which ensure that employment, training, and contracting opportunities generated by certain HUD financial assistance shall, to the greatest extent feasible, and consistent with existing Federal, State, and local laws and regulations, be directed to low- and very low-income persons, particularly those who are recipients of Government assistance for housing and to business concerns that provide economic opportunities to these persons. Part 135 was last revised to incorporate the statutory amendments of the Housing and Community Development Act of 1992. This proposed rule will update part 135 to: (1) Reflect certain changes in the design and implementation of HUD programs that are subject to the section 3 regulations; (2) clarify the obligations of covered recipient agencies; and (3) simplify the Department's section 3 complaint processing procedures.  NPRM projected 01/00/2012.

DOJ's Semi-Regulatory Agenda: The DOJ's timetable is usually more aspirational than most but it does appear that several items are hopefully moving in the regulatory process - e.g., the regulations to implement the revised definition of disability under the 2008 ADAAA have a deadline of November 2011. Interestingly, the deadlines for the four ADA Title II & III NPRMs on Equipment and Furniture, NextGen 9-1-1, Accessibility of Websites and Movie Captioning have been given different months for issuance of an NPRM, which may indicate that DOJ did heed the some of the commenters at the public hearings DOJ held, at which commenters urged that DOJ should move forward with the regulations that can be issued quickly and not hold up the other more contentious and difficult ones in an effort to get them all out at once. Unfortunately, the Web Accessibility NPRM has been changed to a Long Term Item and is not scheduled for publication until December 2012.

• Amendments to Coordination of Enforcement of Nondiscrimination in Federally Assisted Programs and Implementation of Executive Order 12250: In 1988, the Civil Rights Restoration Act (CRRA) added definitions of "program or activity" and "program" to title VI. The added definitions were designed to clarify the broad scope of coverage of recipients' programs or activities under these statutes. In a joint rulemaking described at RIN 1190-AA49, and published in the Federal Register on August 26, 2003, the Department of Justice and other Federal agencies conformed their regulations to the CRRA. In the rulemaking described under this RIN (1190-AA52) the Department of Justice proposes to make conforming amendments to its coordination regulations concerning agency enforcement of title VI of the Civil Rights Act of 1964, 28 CFR 42.401 to 42.415. The proposed amendments explicitly incorporate the CRRA's definitions of "program or activity" and "program" into the Department's title VI coordination regulations.  NPRM 09/00/2011, NPRM Comment Period End 11/00/2011
• Implementation of the ADA Amendments Act of 2008: The Department of Justice is amending its regulations implementing section 504 of the Rehabilitation Act of 1973, as amended, 28 CFR part 39 and part 42, subpart G, and its regulation implementing E.O. 12250, 28 CFR part 41, to reflect statutory amendments to the definition of disability enacted in the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 (Sep. 25, 2008). The ADA Amendments Act took effect on January 1, 2009. The ADA Amendments Act revised 29 U.S.C. section 705, to make the definition of disability used in the nondiscrimination provisions in title V of the Rehabilitation Act consistent with the amended ADA requirements. These amendments (1) Add illustrative lists of "major life activities," including "major bodily functions," that provide more examples of covered activities and covered conditions than are now contained in agency regulations (sec. 3[2]); (2) clarify that a person who is "regarded as" having a disability does not have to be regarded as being substantially limited in a major life activity (sec. 3[3]); and (3) add rules of construction regarding the definition of disability that provide guidance in applying the term "substantially limits" and prohibit consideration of mitigating measures in determining whether a person has a disability (sec. 3[4]). The Department anticipates that these changes will be published for comment in a proposed rule within the next 12 months. During the drafting of these revisions, the Department will also review the currently published rules to ensure that any other statutory changes in the Rehabilitation Act have been properly addressed in these regulations. NPRM projected 11/00/2011.
• Implementation of the ADA Amendments Act of 2008 (Title II and Title III of the ADA):  The Department of Justice is amending its regulations implementing title II and title III of the Americans with Disabilities Act (ADA), 28 CFR part 35 and 28 CFR part 36, to implement changes to the ADA enacted in the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 (Sept. 25, 2008). The ADA Amendments Act took effect on January 1, 2009. The ADA Amendments Act amended the Americans With Disabilities Act, 42 U.S.C. 12101, et seq., to clarify terms within the definition of disability and to establish standards that must be applied to determine if a person has a covered disability. These changes are intended to mitigate the effects of the Supreme Court's decisions in Sutton v. United Airlines, 527 U.S. 471 (1999), and Toyota Motor Manufacturing v. Williams, 534, U.S. 184 (2002). Specifically, the ADA Amendments Act (1) Adds illustrative lists of "major life activities," including "major bodily functions," that provide more examples of covered activities and covered conditions than are now contained in agency regulations (sec. 3[2]); (2) clarifies that a person who is "regarded as" having a disability does not have to be regarded as being substantially limited in a major life activity (sec. 3[3]); and (3) adds rules of construction regarding the definition of disability that provide guidance in applying the term "substantially limits" and prohibit consideration of mitigating measures in determining whether a person has a disability (sec. 3[4]).  NPRM projected 11/00/2011.
• Nondiscrimination on the Basis of Disability by State and Local Governments and Places of Public Accommodation; Equipment and Furniture: Title II of the ADA applies to services, programs, or activities of public entities within the meaning of 42 U.S.C. 12133(1)(A). The program accessibility requirement of title II mandates public entities to operate each service, program, or activity so that, when viewed in its entirety, the service, program, or activity is readily accessible to and usable by individuals with disabilities, subject to a defense of fundamental alteration or undue burden (28 CFR 35.150[a]). Section 35.150(b) specifies that such entities may meet their obligation to make each program accessible to individuals with disabilities through the "redesign of equipment." Title II entities also must ensure that communications with individuals with disabilities are as effective as communications with others and provide appropriate auxiliary aids and services where necessary to ensure that individuals with disabilities have an equal opportunity to participate in and benefit from a service, program, or activity (28 CFR 35.160). Title III of the ADA applies to persons who own, lease or lease to, or operate places of public accommodation (42 U.S.C. 12182[a]). Public accommodations discriminate against individuals with disabilities when they enact discriminatory policies or practices, or fail to remove barriers or make requested reasonable modifications in order to accommodate an individual's disability, unless barrier removal is not readily achievable or a modification would fundamentally alter the nature of the business (see 28 CFR 36.304 [barrier removal] and 36.302[a][reasonable modification]). Public accommodations also must ensure that no individuals with disabilities are excluded, denied services, segregated or otherwise treated differently from other individuals because of the absence of auxiliary aids and services, unless taking such steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or result in an undue burden (28 CFR 36.303[a]). Some types of equipment and furniture are covered specifically by the Department's adoption of the 1991 ADAAG as the ADA Standards for Accessible Design. Equipment and furniture may also be covered by other regulatory provisions including reasonable modifications, 28 CFR 36.302; auxiliary aids, 28 CFR 36.303; and barrier removal, 28 CFR 36.304. While some types of fixed equipment and furniture are explicitly covered by the 1991 Standards, there are no specific provisions in the regulations governing the accessibility of equipment and furniture that are not fixed. See 28 CFR pt. 36, app. A. (Automatic Teller Machines (ATMs) and Fixed or Built-in Seating or Tables). To the extent that the ADA standards apply requirements for fixed equipment and furniture, the Department will look to those standards for guidance on accessibility standards for equipment and furniture that are not fixed. Accessible equipment and furniture is often critical to an entity's ability to provide a person with a disability equal access to its services. Changes in technology have resulted in the development and improved availability of accessible equipment and furniture that benefit individuals with disabilities. Consequently, it is easier now to specify appropriate accessibility standards for such equipment and furniture, as the Access Board has done for several types of fixed equipment and furniture, including ATMs, washing machines, dryers, tables, benches, and vending machines. See sections 903, 902, 707, 611, and 228 of the ADA/ABA Accessibility Guidelines. ANPRM 07/26/2010, ANPRM Comment Period End 01/24/2011, NPRM projected 12/00/2011.
• Nondiscrimination on the Basis of Disability in State and Local Government Services; Next Generation 9-1-1: In 1991, the Department of Justice published a regulation to implement title II of the Americans With Disabilities Act of 1990 (ADA). That regulation includes the requirement that public safety answering points (PSAPs) provide direct access to persons with disabilities who use analog telecommunication devices for the deaf (TTYs). 28 CFR 35.162. On July 26, 2010, the Department published an advance notice of proposed rulemaking (ANPRM) to address in what manner PSAPs should be required to make changes in communication technology to reflect developments that have occurred since the publication of the 1991 regulation. Many individuals with disabilities now use the Internet and wireless text devices as their primary modes of telecommunications. At the same time, PSAPs are considering and planning to shift from analog telecommunications technology to new Internet-Protocol (IP)-enabled Next Generation 9-1-1 services (NG 9-1-1) that will provide voice and data (such as text, pictures, and video) capabilities. This ANPRM seeks information on possible revisions to the Department's regulation to ensure direct access to NG 9-1-1 services for individuals with disabilities.ANPRM 07/26/2010, ANPRM Comment Period End 01/24/2011, NPRM 09/00/2011.
• Nondiscrimination on the Basis of Disability; Accessibility of Web Services of State and Local Government Entities and Public Accommodations: The Department of Justice is considering proposed revisions to the regulations implementing Title III of the Americans with Disabilities Act (ADA) in order to provide specific guidance on the obligations of public accommodations to make goods, services, facilities, privileges, accommodations, or advantages they offer via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with disabilities. The Department is also considering revising the ADA's Title II regulations to provide specific guidance on the obligations of public entities to make services, programs, or activities offered to the public via the Web accessible.  ANPRM 07/26/2010, ANPRM Comment Period End 01/24/2011, NPRM 12/00/2012.
•  Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description: On July 26, 1991, the Department of Justice published a final rule implementing title III of the Americans with Disabilities Act of 1990 (ADA). Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (private entities whose operations affect commerce and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation-as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)-to comply with the ADA Standards (42 U.S.C. 12181–89). Title III makes it unlawful for places of public accommodation, such as movie theaters, to discriminate against an individual in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation (42 U.S.C. 12182[a]). Moreover, title III prohibits places of public accommodation from affording an unequal or lesser service to individuals or classes of individuals with disabilities than is offered to other individuals (42 U.S.C. 12182(b)(1)(A)(ii)). Title III requires places of public accommodation to take "such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden," (42 U.S.C. 12182(b)(2)(A)(iii)). The statute defines auxiliary aids to include "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments" and "taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments," (42 U.S.C. 12103(1)(A)-(B)). The Department's title III regulation specifically lists open and closed captioning and audio recordings and other effective methods of making aurally and visually delivered materials available to individuals with hearing and visual impairments as examples of auxiliary aids and services that should be provided by places of public accommodations, 28 CFR 36.303(b)(1)-(2), unless the public accommodation can demonstrate that providing such aids and services would fundamentally alter the nature of the good or service being offered or would result in an undue burden (28 CFR 36.303(a)). Because, in pertinent part, the legislative history of title III stated that "[o]pen-captioning of feature films playing in movie theaters, is not required by this legislation," H.R. Rep. No. 101-485 (II), at 108 (1990), S. Rep. No. 101-116 at 64 (1989), the Department stated in its 1991 rule that "[m]ovie theaters are not required to present open-captioned films," 56 FR 35544, 35567 (July 26, 1991). The Department was silent regarding closed captioning and video description in movie theaters. The Department noted, however, that "other public accommodations that impart verbal information through soundtracks on films, video tapes, or slide shows are required to make such information accessible to persons who are deaf or hard of hearing. Captioning is one means to make the information accessible to individuals with disabilities." Since 1991, there have been many technological advances in the area of closed captioning and video description for first-run movies. In the legislative history of the ADA, the House Committee stated that "technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities" and that "[s]uch advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities." H.R. Rep. No. 101-485 (II), at 108. On June 17, 2008, the Department issued a Notice of Proposed Rulemaking (NPRM) to adopt the revised ADA Standards and, in pertinent part, revise the title III regulation. 73 FR 34508. In that NPRM, the Department stated that it was considering options under which it might require that movie theater owners or operators exhibit movies that are captioned for patrons who are deaf or hard of hearing and movies that provide video (narrative) description for patrons who are blind or have low vision. The Department received numerous comments urging the Department to issue captioning and video description regulations under the ADA. Rather than using these comments to formulate a final rule, however, the Department decided to issue a supplemental ANPRM for three main reasons. First, the Department wished to obtain more information regarding several issues raised by commenters that were not contemplated at the time the 2008 NPRM was published. Second, the Department sought public comment on several technical questions that arose from the research the Department undertook to address some of the issues raised by commenters to the original NPRM. Finally, in the two years that have passed since issuance of the 2008 NPRM, the Department was aware that movie theater owners and operators, particularly major movie theater owners and operators, either have entered into, or had plans to enter into, agreements to convert to digital cinema. However, during this same time period, the United States' economy, and the profitability of many public accommodations, experienced significant setbacks. The Department wished to learn more about the status of digital conversion, concrete projections regarding if and when movie theater owners and operators, both large and small, expected to exhibit movies using digital cinema, when such movie theater owners and operators expected to implement digital cinema, by percentages, in their theaters, and any relevant protocols, standards, and equipment that have been developed regarding captioning and video description for digital cinema. In addition, the Department sought information regarding whether, in the last two years, other technologies or areas of interest (e.g., 3D) have developed or are in the process of development that either would replace or augment digital cinema or make any regulatory requirements for captioning and video description more difficult or expensive to implement.ANPRM 07/26/2010, ANPRM Comment Period End 01/24/2011, NPRM 10/00/2011.

Department of Transportation Semi-Annual Regulatory Agenda

• Transportation for Individuals with Disabilities--Miscellaneous Amendments: This rulemaking would amend several regulations regarding rail station platform standards, reasonable modifications of policies and procedures, and pedestrian access; it would also codify existing DOT procedures for issuing interpretations and guidance. NPRM Comment period 2006, Final Rule projected 08/00/2011.
•  Carrier-Supplied Medical Oxygen, Service Animals, and Accessibility of Carrier Websites, Kiosks, and In-Flight Entertainment Systems: This rulemaking would fulfill a commitment made in the final rule amending the Air Carrier Access Act rules to develop an SNPRM seeking information from the public on: (1) the cost and technical issues involved in requiring carrier website accessibility; (2) whether automated kiosks operated by carriers in airports and elsewhere should be required to be accessible; (3) whether there are safety-related reasons for excluding service animals other than dogs that may be specific to foreign carriers; (4) whether the cost of requiring carriers to supply free in-flight medical oxygen would create an undue burden; and (5) whether providing high-contrast captioning on in-flight entertainment displays is technically and economically feasible. Supplemental NPRM 07/00/2011.