Does your credit union have one or more ATMs? Are you thinking about installing an ATM at a new location or updating an existing one? Do you know if those ATM’s can talk? Do you know if they are the right height? What about the key pad – is it in a twelve key ascending layout similar to a telephone key pad? If you believe these questions are absurd, you may be right. However, if you are not certain as to any of the above questions then it is important to take note as these are just some of the new regulations that took effect on March 15, 2011 as a result of the United States Justice Department’s (DOJ) update to the Americans with Disabilities Act (ADA). While the rules are not mandatory to date, they will be on March 15, 2012, which begs the question of whether or not these new regulations are addressing outstanding issues not covered under the previous provisions of the ADA or creating an entire separate set of issues.
In way of brief background, on September 15, 2010, the DOJ issued its final rules for ATMs under the ADA. These rules were crafted to create new accessibility standards at new or modified ATMs for visually impaired individuals. Among those regulations issued were requirements that all “affected” ATMs must be speech enabled for all banking and non-banking services to service visually impaired individuals; must have a reach of between fifteen (15) and forty-eight (48) inches to ensure individuals could easily access the audio input controls; have audio input controls that must be raised around surrounding surfaces; have a numeric keypad that is arranged in a twelve (12) key ascending layout such as telephone keys; have an ATM display screen that is located forty (40) inches above the center of the floor in front of the ATM; have Braille instructions in place to advise on how to activate the voice guided features; and that an ATM have a privacy screen that renders the screen blank for voice guidance users.
Unfortunately, the above listed requirements are only a sampling of the broad nature of the new rules issued by the DOJ. On top of the complexity of the regulations is whether or not a credit union’s ATMs are subject to the new requirements. As set forth in the new rules, any ATMs that are newly installed or altered on or after March 15, 2012 will be required to comply with the new 2010 standards. However, there is a safe harbor provision for ATMs that comply with the 1991 ADA standards. These machines will not have to be modified before March 12, 2012, until and unless they are altered after that date.
As is commonly the case with new government regulations, the question arises as to whether or not the additions are really necessary. The 1991 ADA standards required that instructions and all information for use be made “accessible to and independently useable by persons with vision impairments.” As it currently stands, most credit union ATM’s should be compliant with the 1991 standards. Ultimately, where the issues will arise will be if and when a credit union desires to update any of its ATMs after March 15, 2012. Although the 1991 standards require that ATMs must be accessible for the visually impaired, credit unions seeking to upgrade and enhance the quality of their machines for their members must face the economic realities of whether or not they can afford to have the necessary changes made so as to comply with the 2010 standards, which also require the exact same thing in that an ATM be accessible for the visually impaired.
The absurdity of the above situation is in fact the current state of affairs after the implementation of the 2010 rules. The ultimate impact of the 2010 rules is that members of credit unions may not have access to as many updated ATMs as opposed to the customer of a large bank. Additionally, the credit union movement as a whole faces the prospect of being unable to compete with other financial institutions who are better suited to weather the economic burdens of additional government regulations.
One of the other absurdities of the 2010 rules surrounds their enforcement. Sadly the ADA, like many other regulations, are vague and subject to various interpretations thus leaving credit unions in the position of having to make a good faith effort to comply with the new rules. Despite being responsible for the promulgation of the new rules, the DOJ will not be responsible for monitoring violations of the new rules. Rather, complaints are to be filed by individuals alleging that an ATM does not comply with the requirements of the ADA. In today’s litigious climate, the opportunity to challenge the new rules in court will likely result in an influx of lawsuits alleging violations, despite the fact that the 1991 rules already required that ATM’s be accessible for the visually impaired. New rules mean new lawsuits, and with new lawsuits comes additional exposure for credit unions who can not afford to get involved in long and drawn out court battles.
There is no dispute that visually impaired individuals should have an equal opportunity to enjoy modern conveniences like the ATM. The rules set forth in 1991 under the ADA provided that ATMs must be accessible for visually impaired individuals. In 2010 the DOJ issued new rules which reinforced that ATMs must be accessible for visually impaired individuals, however added additional requirements to be met. Government regulations, while “intended” to solve alleged problems, do not always achieve that goal and the issue of whether or not the 1991 rules under the ADA, as applied to ATMs, were continuing to achieve their stated goals is debatable, particularly as the growth of new technologies have enabled a substantial portion of existing ATM’s to provide the visually impaired with the access previously guaranteed by the 1991 rules under the ADA. However, that debate effectively ended with the issuance of the 2010 rules and unfortunately of all of the financial institutions, credit unions, their members and the movement as a whole are at a greater risk of being impacted by the fallout from what can arguably be described as absurd regulations that do not truly improve the accessibility of the visually impaired.