By Cary Stemle

After watching independent ATM deployers get sued left and right over fee stickers (and feeling a little sting himself), Ron Fadel, an attorney-turned-IAD, sees a similar legal scenario taking shape as the critical date of March 15, 2012 quickly bears down on the ATM industry.

On that day, new Americans with Disabilities Act regulations, which have been coming down the pike since updated ADA guidelines were published in 2004, will finally become law. Fadel, who runs Avery Scott, an IAD in Louisville, Ky., sees his colleagues getting blindsided.

“I don’t know if you’ll get speculative people driving up and down the interstates checking for ADA compliance, but there are more things that can go wrong with ADA,” he said. “And no one I have talked to or read about gives me any indication they have a handle on it.”

One problem, said Jason Kuhn of Payment Alliance International, is that manufacturers began to modify ATMs to comply with the 2004 guidelines. But some guidelines were further modified, he said, leaving the machines’ ultimate compliance in doubt.

“The Department of Justice is pretty good about being intentionally vague,” Kuhn said.

Another problem is misinformation. Many IADs and banks believe they’ll be granted safe harbor across a wide range of issues and can avoid making widespread alterations by claiming financial hardship. But that’s simply untrue, Fadel said. The new law will cut some slack in narrow instances — for example, a machine that was installed by 2010 and met the original 1991 ADA guidelines pertaining to height and reach is grandfathered, as long as the machine stays where it is.

Relocate it, however, and the exemption is gone. And voice guidance is non-negotiable.

“If you don’t have voice guidance,” Kuhn said, “you are in a world of hurt. Voice guidance is an absolute requirement.”

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Some of the misinformation is coming from parties who should know better, said ADA compliance expert Sam M. Ditzion, CEO of Tremont Capital Group Inc., an ATM industry consulting firm. He declined to name names, but said, “A large number of people in very prominent positions in the ATM industry are communicating inaccurate interpretations of the highly technical regulations to large numbers of IADs. It’s very, very dangerous and will likely lead to significant liability to many stakeholders in the industry.”

The price of ADA compliance

Kuhn noted that ATMs can often be modified to gain compliance — replacing a keypad, for example — but that will add up quickly, and there is a point when the cost-benefit analysis dictates replacing a machine. Many older machines, he said, will simply need to be retired.

Then there are the potential legal costs. Many insiders fear a repeat of the fee sticker lawsuits as advocacy groups find vulnerabilities and file class action lawsuits on behalf of all disabled people. Some state laws, Fadel said, will allow for large recoveries. Further, he said, the new regulations greatly expand who is protected by the ADA.

None of this is unforeseen, but because the new regulations are not quite actual law, Kuhn said, there’s never been anyone to sue. That will change in March. He and Fadel are often asked by customers who will be liable — for example, can an IAD be held responsible if a convenience store operator stages a crate of soft drinks in front of an ATM? 

“The portions of the ADA that affect ATMs are not top of mind for someone who is worrying about having enough beer and cigarettes to sell for the weekend,” Kuhn said.

The short answer: It depends. Both men believe attorneys will sue everyone involved and let the courts sort it out.

Fadel understands that; he paid an attorney $5,000 to answer a fee sticker lawsuit. The suit was dismissed. He has reworked his contracts to hold him harmless in the event of an ADA lawsuit prompted by the actions of his clients.

“It’s not just the threat of suits, but also the hundreds of thousands of dollars in attorneys’ fees to begin addressing a suit,” Ditzion said. “It can get extremely expensive very quickly.”

Kuhn said his company is working hard to educate its market partners. It has trained its sales force to become ADA experts, issued a white paper and established a forum on its website, which he said has gotten quite active.

He’s also counseling customers on ways to cover themselves. For example, a forum poster created a 30-by-48-inch template — the exact space required for approaching the ATM — which he places in front of ATMs. He then takes photographs of the ATM, with time- and date-stamps, to prove it was unimpeded on its most recent service date.

Unlike the fee sticker lawsuits, Ditzion said the ADA issue involves real harm. Making ATMs fully accessible is the right thing to do, he said, both ethically and strategically.

Kuhn said the new regulations (downloadable at www.ada.gov) are much clearer than the 1991 law, particularly regarding ATMs, but take a lot of time to read.

“Some sections, people think they understand but haven’t researched. The answers are out there, but they’re going to have to spend time to make sure they’re getting the right ones. It’s important to get reliable advice,” Kuhn said.

Ditzion agreed, and stressed that FIs and IADs, unless they’re well versed in the ADA, can’t afford to rely on their own reading of the rules.

“My biggest fear is a spate of lawsuits,” said ATMIA’s CEO Mike Lee. “ATMIA petitioned the Department of Justice for a safe harbor period of five years, but we urge our members to get compliant. Period. This is federal law; there is no way around it. In addition, it is just and humane to provide access to ATMs for disadvantaged persons as far as is humanly feasible."

ATMIA and Tremont Capital Group have published an ADA Compliance guide available through ATMIA's website.

For more information on this topic, visit our regulatory issues research center.