The last-minute rush has subsided. The dust from eleventh-hour installations has settled. ATMs both ADA compliant and not continue to serve customers across the nation. But all customers? Probably not.
Since revised ADA standards took effect, a visually impaired Pennsylvania man named Robert Jahoda has filed at least 17 lawsuits against banks whose ATMs he says are in violation of the new rules. The suits involve the more easily detected points of non-compliance — voice and Braille assistance. And Jahoda wasted no time in his hunt for lawsuit-liable ATMs; his attorney filed the first suit on March 26.
ADA and ATMs: 'The initial stages'
ADA expert and consultant Sam Ditzion, president of Tremont Capital Group, said Jahoda's lawsuits may be just the beginning. "I have not heard about any [other] cases that have actually been filed. But I think some people have gotten letters and phone calls, which are maybe one of the initial stages."
So far, ISOs seem to have dodged the civil suit bullet, said James Phillips, vice president of sales and marketing at Triton. "I am not aware of any Triton ISO customers in this situation, but I have heard of some questionable lawsuit activity occurring in the Northeast," Phillips said, referring to the Jahoda cases. "However, these seemed to be primarily aimed at banks, for the moment."
For the moment. But the number of non-compliant, lawsuit-vulnerable ATMs — both bank- and ISO-operated remains very high, according to Ditzion. High enough that a deep-pocketed ISO might eventually be targeted for a lawsuit.
Prior to the implementation deadline, Ditzion estimated that half of all U.S. ATMs were noncompliant. Since the March 15 implementation deadline, his assessment has not changed dramatically. "I think the number is certainly better than it was, but it's still not materially better," he said.
The industry is making headway, however. In early June, Triton finally cleared its three-month backlog of emergency orders for ADA kit upgrades for older Triton 9600 and 9100 models. The company had to step up production in March to do it, though.
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Backlog aside, ADA-related orders are still rolling in at Triton as ISOs continue to work on bringing their fleets up to the new standards. "We are still getting orders in for ADA upgrade kits, as well as ATM orders that will be replacing units in the field that are not upgradeable," Phillips said. "Many of our ISO customers have rollout plans in place that will allow them to gradually ensure their entire fleet is upgraded."
The crucial element: an ATM compliance plan
Having such a plan in place is critical for any deployer whose fleet is not yet fully ADA compliant, Ditzion said. It won't protect an operator from being sued, unfortunately, but it might make a difference in court.
Penalties can range up to $55,000 in an ADA suit brought by the U.S. government (as opposed to one lodged by a citizen, à la Jahoda), so it could be well worth the investment to bring in an expert to conduct an audit and prescribe a course of action.
"The worst thing you can do is have no plan. If you get sued that's probably going to be looked at very unfavorably, versus doing all the right things in order to try and get compliant." Ditzion said in a recent ADA compliance webinar hosted by the ATM Industry Association (and available to association members at the ATMIA website).
Ditzion also stressed the importance of seeking expert help in auditing fleet compliance, even if the owner felt certain that all ADA bases had been covered. "I think there are a lot of people that are under the impression that their ATMs are compliant … but the deployers don’t understand the intricacies of the regulations, so they very well may not even be aware that they do have issues."
Because an audit could be as simple as a one-time phone consultation or as complex as a full ADA site survey, Ditzion said he couldn't give a realistic cost estimate for an audit. He did say, though, that it was something that a small ISO probably wouldn't be able to afford.
But, by the same token, small operators are the least likely to be sued; the bigger the entity, the greater the chance of a civil suit, Ditzion said. "And frankly, all banks are kind of at risk just because they're good targets for these types of lawsuits … and I think the larger ISOs are at high risk as well."
A little extra peace of mind
There is a safeguard for deployers who want additional protection from lawsuits. They can look into the possibility of purchasing specialized insurance that covers their costs in the event of an ADA lawsuit.
"While certainly insurance is no replacement for risk management and strong legal guidance in this area, obviously a number of entities … have recognized the exposure that they have in this area. In order to help address that, we have formed a specific insurance program to deal with the liabilities associated with ADA legislation," said webinar speaker Mark Coons, who is CEO of insurance provider American Special Risk.
Policies are priced according to the number of ATMs insured, and they indemnify the policyholder against costs that include civil actions, suits and administrative or regulatory procedures, damages and settlements, attorney's fees and civil and criminal fines where insurable by law.
Given the complexity and occasional murkiness of ADA requirements (e.g. is a freestanding terminal "fixed," and therefore subject to ADA, or "non-fixed" and exempt?), and in light of the fact that even a baseless claim must be defended — sometimes at significant cost — ADA insurance could provide an added measure of confidence to a deployer.
Frivolous and abusive ADA lawsuits will occur. And legitimate ones, too. But in his webinar presentation, Ditzion reminded his audience that despite the difficulties and liabilities involved, providing ATM access achieves an important end for both the disabled and the deployer. "Not only is it something that you are required to do by law to comply with the ADA, but it's also good for business because it allows millions of people with disabilities to start using ATMs in an easier way."
For more on this topic, visit the ADA compliance research center.
photo: Flickr/Kevin Collins