Advocacy Alerts

Proposed State Regulations:

Proposed Federal Legislation:

House Bill 4533: The Technology Bill of Rights for the Blind Act of 2010
House Bill 3184: The Medicare Independent Living Act of 2009

Proposed State Legislation:

Senate Bill 961: An Act to Improve Safety in High-Rise Buildings
Senate Bill 445: An Act Relative To Prescription Drug Voice Synthesizers

Action Resources:

House Bill 4533: Technology Bill of Rights for the Blind Act of 2010

Introduced by Rep. Janice Schakowsky (D-IL) on January 27, 2010 and referred to the Committee on Energy and Commerce.

To provide for a study and report on access by blind consumers to certain electronic devices and to provide for the establishment of minimum nonvisual access standards for such devices and for the establishment of an office within the Department of Commerce to enforce such standards, and for other purposes.

Bill Text:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Technology Bill of Rights for the Blind Act of 2010'.

SEC. 2. FINDINGS.

Congress finds the following:

(1) Rapid advances in microchip and digital technology have led to increasingly complex user interfaces for everyday products like consumer electronic devices, home appliances, and office technology devices. Many new devices in these categories require user interaction with visual displays, on-screen menus, touch screens, and other interfaces that are inaccessible to blind or low-vision individuals. Rarely, for example, are settings on televisions, home stereo systems, or dishwashers controlled by knobs, switches, or buttons that can be readily identified and whose settings can be easily discerned with or without the addition of tactile markings by the consumer.

(2) The use of inaccessible interfaces on office equipment such as copiers and fax machines makes these devices unusable by the blind, and many office software packages are either substantially or totally inaccessible to blind people who use assistive technology. This lack of access is a potential threat to a blind person's existing job and a barrier to obtaining a new job.

(3) Increasingly, electronic kiosks are being used to sell consumer goods and services, including tickets for public transit and air transportation, and to provide important public information. If a kiosk is not accessible in a nonvisual manner, a blind person has no way to make a purchase, check in for a flight, or access important public information.

(4) This growing threat to the independence and productivity of blind people is unnecessary because electronic devices can easily be constructed with user interfaces that are not exclusively visual. Text-to-speech technology has become inexpensive and is in wider use than ever before. It is used in everything from automated telephone systems to weather broadcasts by the National Oceanic and Atmospheric Administration. Additionally, office software can be designed to work with screen access technology used by the blind at little or no extra cost as long as such compatibility is taken into consideration at the beginning of the design process.

(5) Some manufacturers have incorporated nonvisual technology into their products by creating talking menus or enabling them to articulate the content on the display, a practice that makes such products more usable by all consumers, whether blind or sighted. For example, Apple, Inc., has incorporated innovative nonvisual interfaces into the latest versions of its iPhone and iPod product lines.

(6) There is no reason why all manufacturers cannot produce electronic devices fully accessible to blind and low-vision individuals.

(7) Text-to-speech technology is not the only mechanism by which consumer electronic devices, electronic kiosks, home appliances, and office technology devices can be made accessible to blind and low-vision individuals. In some cases, tactile markings or audible tones may be sufficient to make such devices fully accessible.

(8) Blind and low-vision individuals should be able to obtain and operate consumer electronic devices, electronic kiosks, home appliances, and office technology devices with the same ease as those with normal vision.

SEC. 3. STUDY AND REPORT ON ACCESS TO COVERED DEVICES BY BLIND CONSUMERS.

(a) In General- The Secretary shall conduct a study on methods by which blind consumers can gain nonvisual access to covered devices.

(b) Research and Consultation- In conducting the study required by subsection (a), the Secretary shall--

(1) review all available research on methods by which blind consumers can gain nonvisual access to covered devices;

(2) commission such additional research as the Secretary considers necessary;

(3) consult with groups representing blind consumers; and

(4) consult with manufacturers of covered devices and organizations that represent such manufacturers.

(c) Report- Not later than 2 years after the date of the enactment of this Act, the Secretary shall submit to Congress a report on the findings of the study required by subsection (a).

SEC. 4. MINIMUM NONVISUAL ACCESS STANDARDS FOR COVERED DEVICES.

(a) In General- Not later than 180 days after the submission of the report under section 3(c), the Secretary shall promulgate a minimum nonvisual access standard for each type of covered device that will ensure nonvisual access to such respective type of device by blind consumers.

(b) Effective Date- A minimum nonvisual access standard shall apply to a covered device that is manufactured after the date that is 2 years after the date on which such standard is promulgated.

SEC. 5. OFFICE OF NONVISUAL ACCESS COMPLIANCE.

(a) Establishment- As soon as practicable but not later than 2 years after the date of the enactment of this Act, the Secretary shall establish an Office of Nonvisual Access Compliance. The head of the Office shall be the Director of the Office of Nonvisual Access Compliance.

(b) Powers and Duties-

(1) ASSISTANCE TO SECRETARY- The Director and appropriate staff of the Office shall assist the Secretary in--

(A) conducting the study required by section 3(a) and preparing the report required by section 3(c) (if the Director and staff have been appointed by the time period involved); and

(B) developing the minimum nonvisual access standards.

(2) EDUCATION OF MANUFACTURERS- The Secretary, acting through the Director, shall educate manufacturers of covered devices about the minimum nonvisual access standards and compliance with such standards.

(3) INVESTIGATIONS-

(A) COMPLAINTS- The Secretary, acting through the Director, shall investigate each complaint that a covered device does not comply with a minimum nonvisual access standard applicable to such covered device and shall determine whether such covered device complies with such minimum nonvisual access standard.

(B) INITIATION BY OFFICE- In addition to investigations under subparagraph (A), the Secretary, acting through the Director, may conduct such other investigations as the Secretary, acting through the Director, considers appropriate to ensure compliance with the minimum nonvisual access standards.

(4) ENFORCEMENT-

(A) IN GENERAL- If the Secretary, acting through the Director, determines that a manufacturer has manufactured for sale or offered for sale a covered device that does not comply with a minimum nonvisual access standard applicable to such covered device, the Secretary, acting through the Director, shall take enforcement action under subparagraph (B) or (C).

(B) NOTICE AND OPPORTUNITY TO CORRECT VIOLATION; CIVIL PENALTY-

(i) NOTICE AND OPPORTUNITY TO CORRECT VIOLATION- Upon making the determination described in subparagraph (A) and unless the Secretary, acting through the Director, takes the action described in subparagraph (C), the Secretary, acting through the Director, shall notify the manufacturer involved of the violation and the time period within which such violation must be corrected in order to avoid a civil monetary penalty, if any.

(ii) CIVIL PENALTY- If the notice given under clause (i) includes a time period within which the violation must be corrected and the manufacturer has not corrected the violation within such time period, the Secretary, acting through the Director, may assess a civil monetary penalty against such manufacturer in an amount that is not less than 10 percent of the retail value of the covered device involved for each noncompliant unit of such covered device manufactured.

(C) IMMEDIATE CIVIL PENALTY- Upon making the determination described in subparagraph (A), the Secretary, acting through the Director, may, in an appropriate case, without first providing the manufacturer involved with notice and an opportunity to correct the violation under subparagraph (B), assess a civil monetary penalty against such manufacturer in an amount that is not less than 10 percent of the retail value of the covered device involved for each noncompliant unit of such covered device manufactured.

SEC. 6. PRIVATE RIGHT OF ACTION.

(a) In General- A blind consumer who has an encounter with a covered device that does not comply with a minimum nonvisual access standard applicable to such covered device may, after notifying the Office of such encounter, commence a civil action against the manufacturer of such covered device not later than 180 days after such encounter.

(b) Relief- If the court in a civil action commenced under subsection (a) determines that the covered device involved is in violation of a minimum nonvisual access standard, the court may grant the following relief:

(1) Monetary damages in an amount equal to the greater of--

(A) $10,000 per encounter per unit of such covered device; or

(B) in the case of a blind consumer who loses an employment opportunity because of an encounter with an office technology device that does not comply with a minimum nonvisual access standard applicable to such office technology device, the value of such employment opportunity.

(2) Such equitable relief as the court considers appropriate, including temporary, preliminary, and permanent injunctive relief.

(3) Reasonable attorneys' fees.

(4) In the case of willful or repeated violations by the manufacturer, punitive damages.

SEC. 7. RULE OF CONSTRUCTION.

Nothing in this Act shall be construed to limit the rights of blind or low-vision individuals under other law.

SEC. 8. DEFINITIONS.

In this Act, the following definitions apply:

(1) BLIND CONSUMER- The term `blind consumer' means an individual whose vision--

(A) is 20/200 or less in the best corrected eye;

(B) subtends an angle of not greater than 20 degrees in the best corrected eye; or

(2) CONSUMER ELECTRONIC DEVICE- The term `consumer electronic device' means an electronic device designed primarily for use by the ultimate consumer.

(3) COVERED DEVICE- The term `covered device' means a consumer electronic device, electronic kiosk, home appliance, or office technology device that is manufactured for sale in the United States after the date that is 2 years after the date of the promulgation of a minimum nonvisual access standard applicable to such consumer electronic device, electronic kiosk, home appliance, or office technology device.

(4) DIRECTOR- The term `Director' means the Director of the Office of Nonvisual Access Compliance.

(5) ELECTRONIC KIOSK- The term `electronic kiosk' means an electronic device with an interactive user interface that is designed to--

(A) sell consumer goods and services, including passage on transportation, to the public; or

(B) convey information to the public.

(6) ENCOUNTER- The term `encounter' means--

(A) with respect to a consumer electronic device or home appliance, the purchase or use or attempted use of such item by a blind consumer; and

(B) with respect to an electronic kiosk or office technology device, the use or attempted use of such electronic kiosk or office technology device by a blind consumer.

(7) HOME APPLIANCE- The term `home appliance' means an electric appliance that is designed for use in a residential setting.

(8) MINIMUM NONVISUAL ACCESS STANDARD- The term `minimum nonvisual access standard' means a minimum nonvisual access standard promulgated under section 4(a).

(9) NONVISUAL ACCESS- The term `nonvisual access' means the ability of an individual to use all functions of a device without reliance on eyesight.

(10) OFFICE- The term `Office' means the Office of Nonvisual Access Compliance established under section 5(a).

(11) OFFICE TECHNOLOGY DEVICE- The term `office technology device' means an electric device or computer software application that is designed for use in an office setting.

(12) SECRETARY- The term `Secretary' means the Secretary of Commerce.

House Bill 3184: The Medicare Independent Living Act of 2009

Introduced by Rep. James R. Langevin (RI-2) on July 13, 2009. The bill would remove the in-home restriction on coverage of mobility devices by Medicare for individuals with expected long-term needs. It would allow mobility device provided by Medicare to be used for community and vocational needs.

Bill Text:

In the House of Representatives

July 13, 2009

Mr. LANGEVIN (for himself, Mr. YOUNG of Alaska, Mr. KUCINICH, Mr. MCGOVERN, Mr. BISHOP of Georgia, Mr. SMITH of New Jersey, Mr. FARR, Mr. KENNEDY, Mr. MARKEY of Massachusetts, Mr. HOLT, Mr. CARSON of Indiana, Mr. OLVER, and Mr. CARNAHAN) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To amend title XVIII of the Social Security Act to eliminate the in the home restriction for Medicare coverage of mobility devices for individuals with expected long-term needs.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Medicare Independent Living Act of 2009'.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings- The Congress finds the following:

(1) There are approximately 2,200,000 wheelchair users in the United States according to the United States Census Bureau of 2001.

(2) A significant portion of these wheelchair users qualify for coverage under the Medicare program, either based on disability status or age.

(3) Many of these Medicare beneficiaries live independently in their own homes, alone or with other family members.

(4) The ability of an individual with a mobility impairment to move about one's physical environment through the use of a wheelchair or other mobility device permits the performance of activities of daily living, including caring for oneself, living independently, performing household duties, caring for family members, engaging in employment, attending school, visiting medical facilities, participating in recreational and community activities, attending religious services, and performing civic duties.

(5) For an individual with an expected long-term mobility impairment (such as a disabling condition that is expected to significantly limit mobility for twelve months or more), the need to have access to one's physical environment through the use of an appropriate wheelchair or other mobility device, both inside and outside of the home, is critical to living independently, functioning in society, and attaining a meaningful quality of life.

(6) In 1965, when the Medicare program was first enacted, Congress recognized the importance of providing assistance to individuals with mobility disabilities by expressly identifying wheelchairs as a covered durable medical equipment benefit under part B of the program when provided for use in the patient's home. This language is widely believed to have been drafted to establish a separate payment under part B for wheelchairs provided outside of an institution (such as a hospital) which would otherwise be paid under part A of the program.

(7) The Centers for Medicare & Medicaid Services (CMS), the agency that administers the Medicare program, currently interprets a provision in the Medicare statute--known as the `in the home requirement'--to prohibit coverage of wheelchairs and other mobility devices if these devices are not medically necessary for use in the beneficiary's home, denying access to appropriate mobility devices for a significant number of Medicare beneficiaries.

(8) The current CMS interpretation of the in the home requirement is inconsistent with Federal law in the following respects:

(A) In enacting the Americans with Disabilities Act of 1990 (Public Law 101-336), Congress found that `The Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic selfsufficiency for such individuals.'.

(B) The Rehabilitation Act of 1973 (Public Law 93-112) requires that Federal programs not discriminate against individuals with disabilities, including individuals with mobility impairments. However, under the current CMS interpretation of the in the home requirement, Medicare beneficiaries with long-term mobility impairments cannot gain access to mobility devices that facilitate their movement throughout the community even when a particular device has been determined to be medically necessary for this purpose. The result of denying such access to appropriate mobility devices is the unnecessary isolation of the Medicare beneficiary, which is inconsistent with the letter and spirit of the Rehabilitation Act of 1973 and its regulations.

(C) The United States Supreme Court ruled in the Olmstead decision (Olmstead v. L.C. ex. rel. Zimring, 527 U.S. 581 (1999)) that an individual with a disability has the right to live in the most integrated setting appropriate to meet the individual's needs. If Medicare coverage policy does not take into consideration the needs of individuals with mobility impairments to function outside the four walls of their homes, the right to live in the most integrated setting is denied.

(9) In 1965, and throughout the history of the Medicare program, Congress has expected covered services to be provided in accordance with current standards of medical practice and professional clinical judgment as well as in accordance with Federal law.

(b) Purposes- The purposes of this Act are as follows:

(1) To bring CMS's coverage criteria for wheelchairs and other mobility devices in line with contemporary standards of medical practice and Federal law by correcting CMS's restrictive interpretation of the in the home requirement language in the Medicare statute.

(2) To ensure that beneficiaries with expected long-term mobility needs are not confined to the four walls of their homes by wheelchairs and other mobility devices that are inadequate to meet their needs both inside and outside of the home.

(3) To clarify that wheelchairs and other mobility devices for beneficiaries with expected long-term mobility impairments are covered under the Medicare program if they are used in customary settings for the purpose of normal domestic, vocational, or community activities.

SEC. 3. ELIMINATION OF IN THE HOME RESTRICTION FOR MEDICARE COVERAGE OF MOBILITY DEVICES FOR INDIVIDUALS WITH EXPECTED LONG-TERM NEEDS.

(a) In General- Section 1861(n) of the Social Security Act (42 U.S.C. 1395x(n)) is amended by inserting `or, in the case of a mobility device required by an individual with expected long-term need, used in customary settings for the purpose of normal domestic, vocational, or community activities' after `1819(a)(1))'.

(b) Effective Date- The amendment made by subsection (a) shall apply to items furnished on or after the date of enactment of this Act.

The following assistive technology related bills are up for consideration by the Massachusetts General Court (the state legislature):

Senate Bill No. 961

An Act to Promote Safety in Multi-Story Buildings

S961 is sponsored by Senator Joan Menard. The bill would improve the safety of those with disabilities living in high-rise buildings by requiring that certain buildings have evacuation chairs. There is a hearing scheduled with the Joint Committee on Public Safety on June 25, 2009, 11:00 a.m. in room B-2 of the State House. You are welcome to testify on your own experiences, especially if you live in a high-rise building.

Bill text:

An Act to Promote Safety in Multi-story Building

CHAPTER 148. FIRE PREVENTION shall be amended by adding Section 26J as follows:

Evacuation chairs required in certain residential and commercial structures; regulation; inspections; enforcement

Section 26J. (a) Every dwelling, building or structure, including those owned or operated by the commonwealth, occupied in whole or in part for residential, commercial or non-commercial purposes, that: (1) is over four stories in height or (2) has occupied space above the height of the tallest fire department ladder shall be equipped with approved evacuation chairs on each stair well or evacuation route.

(b) The board of fire prevention regulations shall promulgate such regulations as may be necessary to effectuate this section including, but not limited to, the type, installation, location, maintenance and inspectional requirements of evacuation chairs or evacuation equipment as the board determines appropriate. (More….)

(e) The head of the fire department or his/her designee shall enforce this section.

Senate Bill No. 445

AN ACT RELATIVE TO PRESCRIPTION DRUG VOICE SYNTHESIZERS

S445 is sponsored by Sen. Baddour.

The bill requires health insurance providers to cover the expense of a medically prescribed voice-synthesizer (better known as Talking RX, see www.talkingrx.com) so that information for a prescription can be recorded and supplied with a prescription bottle for those who are legally blind or visually impaired.

Bill text:

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Chapter 175 of the General Laws is hereby amended by inserting after section 47W the following section:-

Section 47X. For the purposes of this section, the following word shall have the following meaning, unless the context clearly otherwise requires: “voice synthesizer”, a product that attaches to bottles and or reads electronically a code on the label of a prescription which verbally then converts the textual information encoded by a screen-reader and feeds it to the soundcard for oral reproduction. Any blanket or general policy of insurance described in subdivision (A), (C) or (D) of section 110 which provides prescription drug insurance, which is delivered or issued for delivery or subsequently renewed by agreement between the insurer and the policyholder within or without the commonwealth shall provide coverage for the expense of a medially prescribed voice-synthesizer used in connection with a container that would provide audible information of a prescription for use by a person who is legally blind or visually impaired. The policy holder shall be responsible for returning the container to a pharmacist for refill.

SECTION 2. The Commissioner of the Division of Insurance shall adopt regulations to implement and provide information of Chapter 147 Section 47X of the General Laws within 90 days of its effective date.

SECTION 3. Notwithstanding any general or special law to the contrary, an individual, public or private institution, business or other organization that regularly and primarily provides a service to a disabled person shall inform the disabled person of the availability of the voice synthesizer referred to in section 47X of chapter 175 of the General Laws.