28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities (2010 ADA Title III Regulations with amendments issued through Dec. 2016)

Additional benefits of water closet clearance standards.

The standards requiring sufficient space in single-user toilet rooms for a wheelchair user to effect a side or parallel transfer are among the most costly (in monetary terms) of the new provisions in the Access Board’s guidelines that the Department adopts in this rule—but also, the Department believes, one of the most beneficial in non-monetary terms. Although the monetized costs of these requirements substantially exceed the monetized benefits, the additional benefits that persons with disabilities will derive from greater safety, enhanced independence, and the avoidance of stigma and humiliation— benefits that the Department’s economic model could not put in monetary terms—are, in the Department’s experience and considered judgment, likely to be quite high. Wheelchair users, including veterans returning from our Nation’s wars with disabilities, are taught to transfer onto toilets from the side. Side transfers are the safest, most efficient, and most independence-promoting way for wheelchair users to get onto the toilet. The opportunity to effect a side transfer will often obviate the need for a wheelchair user or individual with another type of mobility impairment to obtain the assistance of another person to engage in what is, for most people, among the most private of activities. Executive Order 12866 refers explicitly not only to monetizable costs and benefits but also to ‘‘distributive impacts’’ and ‘‘equity,’’ see E.O. 12866, section 1(a), and it is important to recognize that the ADA is intended to provide important benefits that are distributional and equitable in character. These water closet clearance provisions will have nonmonetized benefits that promote equal access and equal opportunity for individuals with disabilities, and will further the ADA’ s purpose of providing ‘‘a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’’ 42 U.S.C. 12101(b)(1).

The Department’s calculations indicated that, in fact, people with the relevant disabilities would have to place only a very small monetary value on these quite substantial benefits for the costs and benefits of these water closet clearance standards to break even. To make these calculations, the Department separated out toilet rooms with out-swinging doors from those with in-swinging doors, because the costs and benefits of the respective water closet clearance requirements are significantly different. The Department estimates that, assuming 46 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC/ANSI model code provisions, the costs of the requirement as applied to toilet rooms with out-swinging doors will exceed the monetized benefits by $454 million, an annualized net cost of approximately $32.6 million. But a large number of people with disabilities will realize benefits of independence, safety, and avoided stigma and humiliation as a result of the requirement’s application in this context. Based on the estimates of its expert panel and its own experience, the Department believes that both wheelchair users and people with a variety of other mobility disabilities will benefit. The Department estimates that people with the relevant disabilities will use a newly accessible single-user toilet room with an out-swinging door approximately 677 million times per year. Dividing the $32.6 million annual cost by the 677 million annual uses, the Department concludes that for the costs and benefits to break even in this context, people with the relevant disabilities will have to value safety, independence, and the avoidance of stigma and humiliation at just under 5 cents per visit. The Department believes, based on its experience and informed judgment, that 5 cents substantially understates the value people with the relevant disabilities would place on these benefits in this context.

There are substantially fewer single-user toilet rooms with in-swinging doors, and substantially fewer people with disabilities will benefit from making those rooms accessible. While both wheelchair users and individuals with other ambulatory disabilities will benefit from the additional space in a room with an out-swinging door, the Department believes, based on the estimates of its expert panel and its own experience, that wheelchair users likely will be the primary beneficiaries of the in-swinging door requirement. The Department estimates that people with the relevant disabilities will use a newly accessible single-user toilet room with an in-swinging door approximately 8.7 million times per year. Moreover, the alteration costs to make a single-user toilet room with an in-swinging door accessible are substantially higher (because of the space taken up by the door) than the equivalent costs of making a room with an out-swinging door accessible. Thus, the Department calculates that, assuming 72 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC/ANSI model code provisions, the costs of applying the toilet room accessibility standard to rooms with in-swinging doors will exceed the monetized benefits of doing so by $266.3 million over the life of the regulations, or approximately $19.14 million per year. Dividing the $19.14 million annual cost by the 8.7 million annual uses, the Department concludes that for the costs and benefits to break even in this context, people with the relevant disabilities will have to value safety, independence, and the avoidance of stigma and humiliation at approximately $2.20 per visit. The Department believes, based on its experience and informed judgment, that this figure approximates, and probably understates, the value wheelchair users place on safety, independence, and the avoidance of stigma and humiliation in this context.