Washington (December 21, 2015) – Last week, Senator Edward J. Markey (D-Mass.) led a group of eight other Senators in a letter to the Obama administration calling for the prompt release of rules that would clarify and support access to information and communications technology (ICT) under the Americans with Disabilities Act (ADA). Unfortunately, because the ADA predated the information-technology revolution, the statute and its implementing regulations lack sufficient clarity on the question of ICT accessibility. This ambiguity has resulted in individuals with disabilities facing frequent and unacceptable barriers to Internet access and information and communications technology.

Senators Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio), Cory A. Booker (D-N.J.), Barbara A. Mikulski (D-Md.), Richard Blumenthal (D-Conn.), Benjamin L. Cardin (D-Md.), Al Franken (D-Minn.) and Richard J. Durbin (D-Ill.) also signed the letter to the Office of Management and Budget (OMB).

“Far too many entities covered by current ADA regulations are not taking appreciable actions to support ICT accessibility, exploiting the current lack of regulatory clarity,” write the Senators in the letter to OMB. “By approving publication of DOJ’s proposed ICT regulations, the Administration can demonstrate its commitment to the ADA and ensuring that individuals with disabilities are able to take full advantage of Twenty-First Century ICT.”

A copy of the letter to OMB can be found HERE. A digitally-accessible version can be found HERE or pasted below this release.

Dave Power, President and CEO of Perkins School for the Blind
“Perkins School for the Blind applauds the efforts of Senators Markey, Warren, Brown, Booker, Mikulski, Blumenthal, Cardin, Durbin and Franken as they urge OMB to approve publication of a Notice of Proposed Rulemaking by DOJ that advances the promise of making digital resources accessible to all, including people with disabilities.”

Kim Charlson, President of American Council of the Blind
“This proposed rulemaking is a critical step forward toward allowing equal access to information such as online job applications, distance learning and online banking. It will allow Americans with disabilities to maximize opportunities to work, learn and engage in society.”

Mark A. Riccobono, President of the National Federation of the Blind
“The National Federation of the Blind commends Senator Markey and his colleagues for sending a clear message to the White House regarding the benefits that ADA Title III regulations on web accessibility will provide to businesses and to Americans with disabilities. Equal access to websites, and the information and services that they provide, is critical to the education and employment of all Americans.”

December 17, 2015

Shaun Donovan, Director
Office of Information and Regulatory Affairs
Office of Management and Budget
725 7th Street, N.W.
Washington, DC 20503

Dear Director Donovan:

We are writing to urge the Office of Management and Budget to complete its review of an Advance Notice of Proposed Rulemaking (ANPRM) issued by the Department of Justice (DOJ) more than five years ago, which clarifies the obligations of entities covered by Titles II and III of the Americans with Disabilities Act (ADA) to make their websites, online systems, and other forms of information and communication technology (ICT) accessible to and usable by individuals with disabilities.[1] Although current ADA regulations include general requirements regarding communications accessibility, they do not establish specific requirements or technical compliance standards for ICT.

An update of the ADA regulations to reflect the current role that ICT plays is past due. DOJ has correctly recognized that “access to information and electronic technologies is increasingly becoming the gateway civil rights issue for individuals with disabilities” and that “we must avoid the travesty that would occur if the doors that are opening to Americans from advancing technologies were closed for individuals with disabilities because we were not vigilant.”[2] Consistent with those views, in July 2010, DOJ issued an ANPRM in which it expressly recognized the need for greater clarity in the ADA regulations regarding website accessibility: “In order to improve and accelerate web accessibility, it is important to communicate the applicability of the Americans with Disabilities Act to the web more clearly, with updated guidance.”[3]

While review of the ANPRM has been pending, DOJ has entered into settlement agreements with particular institutions of higher education, state and local governments, and public accommodations (e.g., retailers and hospitality providers) requiring that their websites and online systems are accessible to and usable by individuals with disabilities in accordance with internationally recognized technical compliance standards.[4] That strategy is laudable, but these settlements apply only to the parties to the agreements. Far too many entities covered by current ADA regulations are not taking appreciable actions to support ICT accessibility, exploiting the current lack of regulatory clarity.

It is time for OMB swiftly to complete its review of the ANPRM and ensure that, under the proposed rules, ICT is accessible to and usable by individuals with disabilities in conformance with the Web Content Accessibility Guidelines 2.0 AA. Additionally, the proposed rules approved by OMB should include international accessibility technical standards, and when compliance with those standards does not provide a disabled individual an effective and meaningful opportunity to benefit from the ICT, the standards should require covered entities to make reasonable modifications on a case-by-case basis, unless the modification would impose an undue burden on the covered entity. Furthermore, consistent with the ANPRM, the proposed rules should clarify that public accommodations that provide goods and services only online are covered by and subject to the ICT accessibility requirements of ADA Title III, consistent with longstanding DOJ interpretations.[5]

By approving publication of DOJ’s proposed ICT regulations, the Administration can demonstrate its commitment to the ADA and ensuring that individuals with disabilities are able to take full advantage of Twenty-First Century ICT. We urge you to do so promptly.

Sincerely,

Edward J. Markey
United States Senator

Elizabeth Warren
United States Senator

Sherrod Brown
United States Senator

Cory A. Booker
United States Senator

Barbara A. Mikulski
United States Senator

Richard Blumenthal
United States Senator

Benjamin L. Cardin
United States Senator

Al Franken
United States Senator

Richard J. Durbin
United States Senator

[1] http://www.ada.gov/anprm2010/web%20anprm_2010.htm; see http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201510&RIN=1190-AA65; http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201504&RIN=1190-AA61

[2] http://www.justice.gov/opa/speech/principal-deputy-assistant-attorney-general-civil-rights-samuel-r-bagenstos-testifies

[3] http://www.ada.gov/anprm2010/web%20anprm_2010.htm

[4] See, e.g., http://www.justice.gov/opa/pr/justice-department-enters-settlement-agreement-peapod-ensure-peapod-grocery-delivery-website ; http://www.justice.gov/opa/pr/justice-department-enters-consent-decree-national-tax-preparer-hr-block-requiring

[5] http://www.ada.gov/anprm2010/web%20anprm_2010.htm (citing National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006) (finding in website-access case that “[t]o limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute”)).