I know I said that I would not be blogging until after the new year started. However, my wife and daughter are hanging out with lunch and a trip to Bed Bath & Beyond. Since we are Jewish, one could ask why we would be making a trip to Bed Bath & Beyond two days before Christmas. Well, we do need some stuff…:-) Otherwise, I don’t have a good answer for you… To my Christian brethren, Merry Christmas. For those celebrating Kwanzaa, Happy Kwanzaa. Everyone else, happy holidays!
In the last couple of days there have been some regulatory developments. First, the Department of Justice here has withdrawn several guidances dealing with the ADA. As I have mentioned previously, with rare exceptions, I am not a big fan of guidances. Generally speaking, I think lawyers use them as a crutch and forget to do their own independent analysis. Also, I do think there is some merit to the argument, discussed here, that guidances are an end run around the formal rulemaking process. So, the removal of the guidances puts more of a premium on having an ADA knowledgeable attorney. Thanks to the ABA Commission on Disability Rights for alerting me of this on their listserv.
Even bigger news was made when the Department of Justice decided to withdraw entirely, see here, regulations pertaining to accessible medical equipment and to web accessibility. My thanks to the Seyfarth Shaw blog, which appears in my blogroll, for alerting me to this. I happen to agree with the Seyfarth Shaw blog that having a lack of regulations when it comes to web accessibility is unfortunate. What it means is that we now have a bit of a free-for-all. The critical piece is going to be whether the website allows for meaningful access. What meaningful access means is going to be a very fact by fact situation. That said, it does give defendants a great deal of flexibility for ADA compliance that regulations would not otherwise give. On the other hand, it also gives plaintiff’s a bit of a free hand to allege website inaccessibility. As a preventive measure, the WCAG 2.0 would be a good place to aim for. The withdrawal of the web regulations also means that the primary jurisdiction defense, discussed here, is dead.
The withdrawal of accessible medical equipment regulations will be of great concern to disability advocates. I don’t know how it will change what happens on the ground. I can say that the Department of Justice, even now, remains very concerned about the accessibility of healthcare providers to persons with disabilities. In the absence of regulations, a knowledgeable ADA attorney will need to evaluate whether reasonable modifications at the doctor’s office are/were possible i.e. an undue burden or a fundamental alteration does/did not exist. Again, also a very fact by fact situation.
Happy holidays and happy new year y’all!