CUNA Regulatory Comment Call

August 6, 2008

Notice of Proposed Rulemaking on Adoption of ADA Advisory Guidelines

EXECUTIVE SUMMARY

Please submit your comments to CUNA ASAP. Comments are due to the Department of Justice by August 18, 2008.

Please feel free to send your comments to CUNA SVP & Deputy General Counsel Mary Dunn at mdunn@cuna.com or to Assistant General Counsel Lilly Thomas at lthomas@cuna.com; or mail them to Lilly c/o CUNA’s Regulatory Advocacy Department, 601 Pennsylvania Avenue, NW, South Building, Suite 600, Washington, D.C. 20004.

CUNA’s Comment Call addresses specific areas of the NPR that directly affect credit unions, such as equipment as it relates to ATMs. If you would like more information or would like to comment on other aspects of this NPR, you can access the proposal here.

BACKGROUND

The Americans with Disabilities Act (ADA) is a comprehensive civil rights law prohibiting discrimination on the basis of disability. The Justice Department (Department) issued regulations in 1991 implementing Title III of the ADA, which prohibits discrimination on the basis of disability in commercial facilities and businesses and non-profit agencies that serve the public, including credit unions.

The ADAAG was issued by the Architectural and Transportation Barriers Compliance Board (TBCB) in 2004 and contains requirements applicable to new construction and to alterations of buildings, facilities, and entities.

The ADAAG has no legal effect on the public and is effective only as guidance to the Department. However, many entities will comply with the standards in the ADAAG when building new facilities and altering equipment in anticipation of the Department’s intention to adopt the ADAAG.

In 2005, the Department issued an Advance Notice of Proposed Rulemaking (ANPR) to begin the process of adopting the ADAAG and sought comment on several issues, including the potential application of the ADAAG to existing facilities. click here for a copy of CUNA’s Comment Call, which addressed equipment as it relates to automated teller machines (ATMs), events or actions that would trigger compliance with the ADAAG Standards, and potential effective dates.

DISCUSSION

The Department is seeking comment on adopting enforceability standards under the ADA that are consistent with Parts I and III of the ADAAG, which will include the provisions that apply to ATMs.

Shortly after this notice was issued, the House of Representatives passed the ADA Amendments Act of 2008 because of several U.S. Supreme Court decisions that have narrowed the definition of disability. The Act would amend the definition of disability and clarify the prohibition on discrimination on the basis of disability, which may impact the outcome of the proposal discussed in this Comment Call.

Equipment Issues

The ADAAG currently includes requirements for certain fixed equipment specifically addressed in the current ADA standards, and detailed requirements for other types of fixed equipment, such as deposit boxes and change machines. Fixed equipment is equipment that is built into or permanently attached to a new or altered facility, such as an ATM.

There are no specific provisions addressing free-standing equipment, such as portable ATMs. Questions previously have been raised regarding the obligations of covered entities to provide accessible free- standing equipment, and the Department previously sought comment in its ANPR on adding specific language addressing this issue.

In an earlier comment letter, CUNA stated that the revised guidelines published by the TBCB applying to fixed equipment were sufficient and no additional guidance was needed for portable equipment.

The Department has decided not to add any specific regulatory guidance governing portable equipment at this time, but rather to incorporate from the ADAAG the guidelines on fixed equipment. Because the ADAAG provides detailed requirements for many types of fixed equipment, covered entities may apply these requirements to analogous free-standing equipment to avoid potential liability for disability discrimination. Additionally, the Department intends to analyze the economic impact of future regulations governing specific types of free-standing equipment.

The specific requirements under the ADAAG for ATMs include audio design requirements, which must be delivered through a mechanism that is readily available to all users, as well as requirements regarding the full use of operating instructions and orientation, visible transaction prompts, user input verification, error messages, and all displayed information by individuals with vision impairments. The ADAAG provides exceptions that include the use of audible tones instead of speech for visible output that is not displayed for security purposes.

Auxiliary Aids and Services

The current regulations state that, “[a] public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.”

Auxiliary aids and services include effective methods of making aurally and visually delivered materials available to individuals with hearing and visual impairments. Examples include qualified interpreters, assistive listening systems, telecommunications devices for deaf persons (TDD's), audio recordings, Brailed materials, and large print materials.

The Department is proposing amendments to this section to recognize technological advances in auxiliary aids and services as well as to codify its longstanding policies in this area.

Additionally, the Department is proposing to address situations in which a public accommodation must provide an effective means to communicate by telephone for individuals with disabilities, including the use of automated attendant systems, which are electronic, automated systems commonly used for answering and directing incoming telephone calls. The Department has become aware of situations in which individuals with disabilities who use telecommunications and relay services have been unable to use automated attendant systems because they are often disconnected before the communication can be completed.

As a result, a new section would be added to require individuals using telecommunications and relay services or text telephones (TTYs) to be able to connect to and use effectively any automated attendant system used by a public accommodation.v

Other proposed changes include replacing the term, “telecommunications devices for deaf persons (TDD’s)” with “text telephones (TTYs)” throughout the regulation; adding as examples of appropriate auxiliary aids or services “the exchange of written notes,” Brailed displays, screen reader software, and accessible electronic and information technology.

Safe Harbor

Covered entities have a continuing obligation to remove architectural, transportation, and communication barriers in existing facilities to the extent that it is readily achievable to do so. As noted in the Background section of this comment call, the Department is proposing to adopt certain provisions of the ADAAG. If adopted, there will be a number of new requirements regarding the removal of architectural, transportation, and communication barriers. A safe harbor from these proposed requirements would be established for elements of existing facilities that are in compliance with the current ADA Standards and that have not been altered after the effective date of the final rule. However, the Department is not planning to apply a safe harbor to the requirement for auxiliary aids and services, which means that all ATMs will be required to have speech output capability.

Additionally, a safe harbor is being proposed for a “qualified small business” that has spent at least one percent of its gross revenue in the preceding tax year in an effort to comply with the barrier removal requirements. A “qualified small business” is a public accommodation that meets the Small Business Administration’s definition of “business concern,” which is limited to a business entity organized for profit, which would appear to not apply to credit unions.

Effective Date

The Department is proposing an effective date of six months after publication of the final rule for existing entities to comply with the requirements. The effective date for new construction under Title III would also be amended to the date on which construction begins. This parallels the triggering event for the alterations provisions as well as the Title II provisions.

QUESTIONS REGARDING THE PROPOSAL

  1. Do you agree that the revised guidelines addressing fixed equipment are sufficient and there is no need for additional guidance specific to portable equipment?
    a. Yes_____
    b. No _____

    If not, please provide information on areas you believe require additional guidance.
















  2. The Department is proposing to exclude auxiliary aids and services from its safe harbor, which means that ATMs lacking speech output would not be eligible. Do you agree?
    a. Yes _____
    b. No _____

    Please explain.
















  3. The Department is referring to the Small Business Administration’s definition of “business concern” to define “qualified small business” for a safe harbor. Should credit unions be able to qualify? a. Yes _____
    b. No _____

    If not, please explain how you would define “qualified small business.
















  4. The Department is proposing an effective date of six months after the final rule is published. Is this sufficient time?
    a. Yes _____
    b. No _____

    Please explain.
















  5. Please provide any additional comments.
















Eric Richard • General Counsel • (202) 508-6742 • erichard@cuna.com
Mary Mitchell Dunn • SVP & Deputy General Counsel • (202) 508-6736 • mdunn@cuna.com
Jeffrey Bloch • Assistant General Counsel • (202) 508-6732 • jbloch@cuna.com
Lilly Thomas • Assistant General Counsel • (202) 508-6733 • lthomas@cuna.com
Luke Martone • Senior Regulatory Counsel • (202) 508-6743 • lmartone@cuna.com