This is post #9 in the ADA Compliance Series, which aims to outline a structure for validating and justifying a claim of “ADA compliance” for a website or other digital system. (a few notes and disclaimers on that)
As we develop things a little further, the next key concept to look at is that of “auxiliary aids and services,” and the related concept of “effective communication.” Let’s start with auxiliary aids and services.
Auxiliary aids and services are defined in the law itself (42 U.S.C. § 12103) and extensively discussed in both the original regulations (1991) and the substantive updates to them under the Americans with Disabilities Amendments Act (2008). Let’s start with the statute:
The term “auxiliary aids and services” includes—
(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
(C) acquisition or modification of equipment or devices; and
(D) other similar services and actions.
What’s interesting for us is the phrase, “or other effective methods” used in (A) and (B). We’d take the view that in the case of both of those situations accessible information and communication technology would clearly fit the bill. That also aligns with the current regulatory definition under 28 CFR § 36.303 – Auxiliary aids and services. This currently “defines” auxiliary aids and services in the following fashion:
(b) Examples. The term “auxiliary aids and services” includes –
(1) Qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing;
(2) Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
You’ll note under (b) (1) there are a variety of listed items. The seventh item—accessible electronic and information technology—was added as of the 2010 ADA regulatory updates. The idea is that a website, mobile app, or other technology is just a way you communicate with your customers. An accessible website, mobile app, or another piece of technology can, therefore, be a valid auxiliary aid and service to the extent it provides effective communication with an individual with disabilities.
This view is consistent with the Department of Justice’s view: “The Department interprets auxiliary aids and services as those aids and services designed to provide effective communication.” So, if the thing is used to ensure effective communication with people with disabilities it’s likely an auxiliary aid and service.
It’s also worth noting that the list above is not exhaustive nor is it meant to be. “The Department has added several items to this list but wishes to clarify that the list is not an all-inclusive or exhaustive catalog of possible or available auxiliary aids or services. It is not possible to provide an exhaustive list, and such an attempt would omit new devices that will become available with emerging technology.” (1991 Preamble – Section 36.303). It’s meant to be a flexible list that makes sense in the context of the situation. Similarly: “The auxiliary aid requirement is a flexible one. A public accommodation can choose among various alternatives as long as the result is effective communication.” It’s this flexibility that’s uniquely compelling in the context of digital accessibility as it lets us make some proactive choices.
A public accommodation has discretion in choosing the auxiliary aids and services it provides. The regulations mention that “strongly encouraging consultation with persons with disabilities, in lieu of mandating primary consideration of their expressed choice, is consistent with congressional intent.” But—and here’s the key part—it’s not a requirement of the regulations – just strongly encouraged. As long as the communication is effective, the public accommodation has a choice in what auxiliary aid and service is provided.
One item to note is that the rules apply to communicating with the person who is receiving the covered entity’s goods or services as well as with that person’s parent, spouse, or companion in appropriate circumstances. One common question we get is, “we don’t have any people with disabilities as customers (or students, users, etc.), do we still need to do this?” Generally, we’d say “yes,” unless you can ensure that not just your direct consumers but also all the companions of those people don’t have a disability. Generally, that bar is materially higher and, in our experience, ends the conversation.
The companion rule comes up in a lot of contexts, but it is particularly poignant in healthcare settings:
Effective communication with companions is particularly critical in health care settings where miscommunication may lead to misdiagnosis and improper or delayed medical treatment. The Department has encountered confusion and reluctance by medical care providers regarding the scope of their obligation with respect to such companions. Effective communication with a companion is necessary in a variety of circumstances. For example, a companion may be legally authorized to make health care decisions on behalf of the patient or may need to help the patient with information or instructions given by hospital personnel. In addition, a companion may be the patient’s next of kin or health care surrogate with whom hospital personnel need to communicate concerning the patient’s medical condition. Moreover, a companion could be designated by the patient to communicate with hospital personnel about the patient’s symptoms, needs, condition, or medical history. Furthermore, the companion could be a family member with whom hospital personnel normally would communicate. It has been the Department’s longstanding position that public accommodations are required to provide effective communication to companions when they accompany patients to medical care providers for treatmen—2010 Preamble – Section 36.303 Auxiliary Aids and Services
A critical and often overlooked component of ensuring the success—or effectiveness—of communication is staff training on the topic. This isn’t an explicit requirement of the ADA or relevant regulations but is broadly construed as an implicit requirement. The idea is that the front-line personnel interacting with people with disabilities need to (i) be aware of the fact that auxiliary aids and services are available, and (ii) have some basic process for requesting and deploying them. The idea here isn’t complicated: it’s not enough to offer the auxiliary aids or services in the abstract, you’ve got to practically provide them in the real world. The place where things usually break down is where the front-line staff is deployed but unaware that the organization provides braille copies of procedures, documents, or large print statements, or whatever else may be requested.
In general, we counsel nothing more complicated than some basic and recurring awareness training on the topic for front line personnel backed up with a specialized help desk that can develop the specific approach. The front-line training covers some basic awareness points for people with disabilities and how to connect them with the specialized help desk. The specialized help desk then works with the person with a disability to ensure their communication needs are being met. That approach is the same one we’d counsel in the real world or in the digital world – the implementation approach just slightly varies.