From the President’s Desk
From the Editor: The Trump Administration is eager to reconsider or rescind regulations that it deems to be overly burdensome, and constituencies that would like to see regulatory delays or reconsiderations are aggressively advocating their agendas in light of what they perceive as a friendly environment for deregulation. Below are two letters from President Riccobono pushing back on attempts to reconsider or rescind regulations that are critical to the equality of blind Americans. In the case of the Department of Energy regulation, the administration seeks to fast-track the rescission of construction requirements that enhance our access to public buildings. The other letter addresses the American Council on Education’s attempt to stymie the Title II ADA website regulation that was fourteen years in the making. Here are the letters:
June 6, 2025
David Taggart
United States Department of Energy
Office of the General Counsel
1000 Independence Avenue SW, Room 5B-168
Washington, DC 20585
RE: Docket No. DOE-HQ-2025-0015, RIN 1903-AA24
Dear Mr. Taggart:
The National Federation of the Blind, the transformative membership and advocacy organization of blind Americans, appreciates the opportunity to comment on the direct final rule regarding Rescinding New Construction Requirements Related to Nondiscrimination in Federally Assisted Programs or Activities. In this direct final rule, the Department of Energy proposes to rescind its regulation, 10 C.F.R. § 1040.73, requiring new construction and alterations of facilities by recipients of federal funding to be accessible to people with disabilities. The Department concludes that the requirement is unnecessary and unduly burdensome. This conclusion is incorrect and therefore we urge the Department to withdraw this direct final rule.
The blind require certain accessibility features to maneuver in the built environment. Those features, including Braille and tactile signage on rooms and elevators, signage with large characters, color contrast, and consistent placement, cane detectable warnings of hazards, and restrictions on protruding objects, are incorporated in the Uniform Federal Accessibility Standards (UFAS), which are the accessibility standards referenced in § 1040.73 for new construction and alterations. Without these important features, blind people would be at risk of injury and would have to rely on strangers to find their way around federally funded facilities.
The Department relies on the general prohibition on discriminatory activities in 10 C.F.R. § 1040.71 as sufficing to ensure that newly constructed and altered facilities will be accessible to people with disabilities and, therefore, to conclude that § 1040.73 is unnecessary. Far from being unnecessary, § 1040.73 makes clear that the failure to construct or alter facilities to be accessible constitutes discrimination. Further, § 1040.73 specifies that the Uniform Federal Accessibility Standards meets the accessibility requirement.
Without § 1040.73, recipients of federal funds could construct and alter facilities to exclude people with disabilities. History, experience, and common sense all demonstrate that inaccessible buildings deny people with disabilities equal access to the programs and services conducted in those buildings. Only by requiring facilities to be newly constructed accessibly, and, when altered, to be altered accessibly, can federal funding recipients ensure they are not excluding people with disabilities from their programs and services.
The Department may be assuming there are other means by which federal funding recipients can provide access to their programs and services without ensuring their facilities are accessible. A few simple examples demonstrate that this is not so: an inaccessible hospital or medical provider cannot make its operating rooms, its MRI and other diagnostic equipment, and its specialized examination tables available in an accessible venue when a person with a disability becomes a patient.
Even its laboratory services and healthcare providers are not portable, as strict privacy protections apply. Nor can a school move its laboratories, auditorium stages, libraries, and computer equipment to accessible facilities when a student with a disability matriculates. And educating a student with a disability in an accessible facility separate from nondisabled peers would, itself, constitute discrimination.
Without the explicit requirements of § 1040.73, covered entities will be misled into believing they need not make their facilities accessible when, in fact, there is no other way to avoid discriminating against people with disabilities. As a result, they will violate the law and be forced to remediate accessibility barriers after construction is completed, likely at significant cost. At the same time, people with disabilities will be excluded from their programs and services and have no choice but to file lawsuits.
Nor is compliance with the nearly-50-year-old requirement of § 1040.73 burdensome. Studies show that accessibility accounts for a negligible percentage of total construction expense. See, e.g., Government Accountability Office, Briefing Report to Congressional Requesters: Persons with Disabilities: Reports on Costs of Accommodations, Appendix III (1990) (costs of accessibility in new construction range from negligible to 0.5 percent); Ratzka, “A Brief Survey of Studies on Costs and Benefits of Non-Handicapping Environments” (1994), (showing accessibility accounts for .006% to .13% of new construction cost). See also Ielegems and Vanrie, “The Cost of Universal Design for Public Buildings: Exploring a Realistic, Context-Dependent Research Approach” (2023), (showing individual accessibility features may reduce construction costs or increase them up to two percent).
Given the benefits to people with disabilities (not to mention people without disabilities who benefit from accessibility features, known as the “curb cut effect”), in terms of access to public services, education, health care, and employment, these costs can hardly be viewed as “undue.” Indeed, in issuing both the 1991 regulations and the 2010 regulations under the Americans with Disabilities Act, the Department of Justice determined that the benefits of new construction and alterations accessibility outweighed the costs. See https://archive.ada.gov.
Because the Department’s conclusion that § 1040.73 is unnecessary and burdensome is substantively incorrect and the Department’s proposal to rescind the rule does not meet the requirements for a direct final rule, the National Federation of the Blind believes this proposal must be withdrawn. Further, in light of the Department’s and the Department of Justice’s previous analyses concluding that the benefits of requiring covered entities to build and alter facilities accessibly far outweighed the costs, this proposal requires a “reasoned determination that its benefits justify its costs” to people with disabilities pursuant to Executive Order 12866. That requirement has not been met.
In addition, under Executive Order 12988, the Department must provide a clear legal standard for affected conduct, not a general standard. The Department’s proposed rescission eliminates a clear legal standard (accessibility standards for new construction and alterations) and replaces it with a general standard (nondiscrimination) in violation of Executive Order 12988.
Once again, we appreciate the opportunity to comment and we are available to answer any further questions you may have.
Sincerely,
Mark A. Riccobono, President
National Federation of the Blind
June 9, 2025
Russell T. Vought
Director
Office of Management and Budget
Eisenhower Executive Office Building
17th Street and Pennsylvania Avenue, NW
Washington, DC 20504
RE: Recent Letter from the American Council on Education
Dear Mr. Vought:
The National Federation of the Blind, the transformative membership and advocacy organization of blind Americans, writes in response to the letter you received from the American Council on Education dated May 12, 2025, regarding the Department of Justice regulation under Title II of the Americans with Disabilities Act (“ADA”) covering the accessibility of state and local government websites and mobile applications (the “website regulation”). The American Council and its co-signatories seek your review and possible reconsideration of the website regulation. We oppose any attempt to delay, rescind, or otherwise undermine the effectiveness of the website regulation.
While reflecting a compromise between the needs of people with disabilities and the resources of covered entities, the clarity provided by the website regulation is important to the lives of people with disabilities, in particular to blind students in public and higher education. Blind students are too often excluded from the curricula their sighted peers enjoy because educational materials are offered digitally through inaccessible websites and mobile applications.
As a result, they are often unable to compete on a level playing field with their peers, are unable to benefit fully from their education, and are delayed in attaining their degrees and entering the workforce. The inaccessibility of educational materials is one of the most significant barriers to blind people being able to achieve their full potential and make their rightful contribution to American society.
Contrary to the American Council’s implications, far from creating ambiguity, the website regulation provides exactly the clarity state and local government institutions, including educational institutions, have been requesting regarding their obligations under Title II of the ADA to make their websites and mobile applications accessible. Since 1990, Title II of the ADA has required state and local governments to ensure their communications with individuals with disabilities are “as effective as” communications with nondisabled individuals.
Since 1996, the Department of Justice has made clear that this obligation includes their communications via the internet and mobile applications. Moreover, the communications of recipients of federal funding, including virtually all public educational institutions, have been subject to that same requirement pursuant to Section 504 of the Rehabilitation Act since 1973. In the decades since, courts and other federal agencies have agreed, and the Department of Justice has issued several guidance documents providing technical assistance to covered entities.
Yet, educational institutions and other state and local government entities have claimed to be unclear exactly how they should comply with the “equally effective communication” obligation. Last year, the Department of Justice issued the website rule. Far from being a surprise to covered entities, the Department first issued an advance notice of proposed rulemaking (“ANPRM”) in 2010, which sought information from covered entities and individuals on what should be included in the rule.
The Department received approximately four hundred comments. In 2016, the Department issued a supplemental ANPRM, again soliciting public input, which received more than two hundred comments. In 2023, the Department issued a notice of proposed rulemaking regarding website and mobile application accessibility requirements, setting forth the Department’s proposals and including more than sixty questions for public comment. The Department received approximately 345 comments. In addition, the Department attended a variety of listening sessions to gather additional input. The final regulation was issued in 2024.
The final rule clarifies what is required to meet Title II’s equally effective communication requirement in the context of state and local government websites and mobile applications. It provides a clear technical standard based on an internationally recognized and widely adopted consensus standard. It also provides flexibility by allowing covered entities to achieve equivalent facilitation and preventing liability for inaccessible elements that do not substantively affect the usability of a website or mobile application.
Notably, the website rule also provides a series of exceptions, presumably implemented at the behest of covered entities, establishing web and mobile application elements and content that do not have to be made accessible. These exceptions are not available under the pre-existing equally effective communication requirement.
Although the equally effective communication requirement has been in effect for decades, the final rule also provides delayed effective dates of two or three years, depending on the size of the affected government. Thus, rather than burdening state and local governments, the rule actually reduces the burdens on those entities. Further, the rule included a comprehensive and careful analysis of the benefits and costs of the regulation, showing that the benefits substantially outweighed the costs.
The website regulation reflects exactly what the American Council purports to seek—a clear, transparent “shared understanding” of the applicable legal requirements. As the American Council recommends, it is “related to education,” is “clear and comprehensible,” does not stray from legislative intent (which made clear that the effective communication requirements of the Rehabilitation Act should be incorporated in the ADA), accurately estimates the costs and burdens, and provides clear safe harbors.
There is no basis for reconsidering the website rule, which has already gone through fourteen years of consideration, public input, and adjustment, and which is based on a requirement in existence for nearly fifty years. On the other hand, delaying or amending the regulation at this point would severely harm blind Americans.
Thank you for your attention to this important issue.
Sincerely,
Mark A. Riccobono, President
National Federation of the Blind