By Minh N. Vu and John W. Egan

Seyfarth Synopsis: The U.S. Access Board published an ANPRM on September 21, 2022 requesting public comment on nine questions as it prepares draft regulations addressing the accessibility of self-service kiosks.

As previewed in the Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (the “Agenda”) (as we previously covered), the U.S. Access Board recently issued an Advanced Notice of Proposed Rulemaking (“ANPRM”) for Fixed Self-Service Transaction Machines (“SSTMs”) (a.k.a. self-service kiosks).  The U.S. Access Board—the federal agency that develops accessibility standards that become regulations under ADA Title III once adopted by the DOJ—is requesting public comment on nine questions (listed below) as it works on proposed accessibility requirements for self-service kiosks.

Self-service kiosks typically utilize touchscreens and visual displays which allow customers to access services or perform functions themselves that are traditionally provided by employees of the business.  These devices present financial and operational incentives to businesses, allowing them to have fewer employees serving customers, offer a largely contact-free customer experience, and give customers the option to skip the line for in-person service.  However, these kiosks can be impossible to use by people who are blind if there is no audio output for visual information, or controls that can be perceived without sight.  Persons who use scooters and wheelchairs can also have difficulty using self-service kiosks if the controls are out of reach from their seated position, the screen is too high, or there is no clear floor space in front of the machine.

Self-service kiosks have sprouted up everywhere in recent years.  They are used to order food, buy tickets of all kinds, pay for parking, check-in to a hotel or healthcare provider, get a rental car, and rent movies.  But unlike ATMs and fare machines that long predate them, self-service kiosks do not have specific accessibility requirements set forth in the ADA Standards for Accessible Design (“2010 Standards”) which apply to public accommodations and commercial facilities.  The absence of technical standards does not mean that there are no legal requirements, however.  The U.S. Department of Justice (“DOJ”) made clear in a recent Statement of Interest (“SOI”) that public accommodations have a duty to ensure effective communication for the goods and/or services offered through self-service kiosks.  This can be done by providing an accessible kiosk that people with disabilities can use independently, or with employee assistance that provides an equivalent experience.  In the SOI, the DOJ found that providing employee assistance at a self-service check-in kiosk was not sufficient where the process resulted in placing blind patients with appointments at the end of the line for people with no appointments.

The ANPRM notes that the accessibility of similar equipment is already covered in non-public accommodation contexts.  For example, the design and functionality of self-service kiosks in U.S. post offices must comply with accessibility requirements that apply to federal agencies employing such devices under Section 508 of the Rehabilitation Act of 1973 (“Section 508”).  Similarly, regulations under the federal Air Carrier Access Act already cover the accessibility of airport kiosks that allow customers to independently print boarding passes, check luggage, receive essential information about their flights, change seat locations, and pay various fees.  According to the ANPRM, the Access Board is evaluating whether, and to what extent, similar requirements should be issued for public accommodations.  Under the ADA, the Access Board is responsible for drafting the technical standards but they do not become binding on public accommodations until the DOJ incorporates them into its own ADA regulations.  The DOJ will not have much leeway to change the technical standards at that time, but it will be solely responsible for determining when the requirements will become effective and similar implementation issues. 

Included in the ANPRM is a matrix prepared by the Access Board that compares the current accessibility requirements for (1) ATM and Fare Machines under the ADA, (2) applicable hardware under Section 508, and (3) airport kiosks under the Air Carrier Access Act.  There are a number of commonalities among the requirements, which may provide insight on how the Access Board will approach these issues.  They include:

  • The usability of operable parts for individuals with disabilities;
  • Speech output requirements, privacy considerations (i.e. headset/audio jack), and user ability to change volume, interrupt and/or repeat audible content;
  • Numeric keys and other controls that are discernable by touch/tactile sense, and their format and organization;
  • Display screen requirements, character/font size, and visibility;
  • Braille instructions on the devices; and
  • Clear or unobstructed floor space or area in front of the devices.

The ANPRM specifically requests public comment on the following questions:

Question 1. . . . Are there capabilities, functions, or other objective criteria that should define the types of devices covered as SSTMs or self-service kiosks?”

Question 2. Are there other types of electronic devices providing unattended interaction that should be addressed by this rulemaking? If so, what are they?”

Question 3. Are there types of self-service electronic devices that should not be covered by this rulemaking? If so, why not?”

Question 4. Should the Board’s rule require all fixed or built-in SSTMs and self-service kiosks in each location to be accessible? If not, why, and what should the number be? Are there some facilities or locations that should have a higher number of accessible devices than others?”

“Question 5. The Board seeks comment on this planned approach [of incorporating more recent, Section 508 standards for kiosks] for the proposed supplementary guidelines for SSTMs and self-service kiosks outlined in this ANPRM.”

Question 6. Should requirements for ATMs and fare machines in the current ADA and ABA Accessibility Guidelines be updated as part of this rulemaking to address additional features covered in the Revised 508 Standards and the DOT rule pertinent to the accessibility of ATMs and fare machines?”

Question 7. The Board seeks comment from users and manufacturers of self-service transaction machines and self-service kiosks on their experiences in using or designing accessible machines and the benefits and costs associated with the proposed requirements.”

Question 8. The Board seeks comments on the numbers of small entities that may be affected by this rulemaking and the potential economic impact to these entities; these include small businesses, small non-profits and governmental entities with a population of fewer than 50,000. The Board also seeks feedback on any regulatory alternatives that may minimize significant economic impacts on small entities.”

Question 9. Should SSTM and self-service kiosk which accept credit and debit cards be required to accept contactless payment systems?”

Because it is very unlikely the DOJ will change the technical standards that issue from the Access Board in its own rulemaking process, self-service kiosk manufacturers and businesses that currently employ these technologies (or are considering employing them in the future) such as retailers, restaurants, banks, lodging facilities, institutions of higher learning, and other covered entities, should submit public comments by the deadline of November 21, 2022.

Edited by Kristina M. Launey