The Swiss Cheese Model of Compliance and Digital Accessibility
Holding on to layers in a time of uncertainty.
Today, I will talk about the Americans with Disabilities Act, recent regulations, and … Swiss cheese.
In April 2024, the Department of Justice (DOJ) released a regulation under Title II of the Americans with Disabilities Act. This regulation mandates that state and local governments and other public entities must follow specific digital accessibility standards beginning April 2026. There has been a big push since then to make things accessible - which has been a big chunk of my work since I “went solo” earlier this year. A few weeks ago, the Trump Administration’s DOJ issued a regulatory forecast that stated that the DOJ would consider ways to make this regulation “less costly,” which could mean “less stringent.”
Understandably, many people are nervous. I am nervous too! But there is an approach that can help us navigate whatever comes next.
So I am going to introduce you to a metaphor based on one you may have heard in the pandemic. Regulations, laws, funding streams, and policies are like slices of Swiss cheese. They can be great - and delicious! - but they have holes in them. One layer of Swiss cheese does not give you maximum coverage. But when you have multiple layers of Swiss cheese, every bite of a proverbial sandwich has some cheesy goodness.The same applies for regulations: even if one layer goes, there is still cheesy (policy) goodness coming through. And this applies to the ADA regulations: even if you do not have these new rules, you still have the broader ADA, legal action, state laws, local laws, and policies.
This metaphor was inspired by an excellent speech given by Lainey Feingold at the M-Enabling Conference (more on that in my update). Lainey is, incidentally, one of the leading lights on digital accessibility in the legal sphere. She began by addressing the anxiety many of us attendees were feeling about the political climate and what many of us see as negative pressure on accessibility efforts. And she pointed out that the Title II announcement is worrisome - though there is reason to believe that the result will not be the worst-case scenario.
Lainey also pointed out that there are many other tools we still have in our legal toolbox to support accessibility. The ADA is still the law, and it still bars discrimination. Many lawsuits under the ADA have been successful in mandating accessibility, even this year. Pressure from public commenters and Congress convinced the Department of Energy to put their own “rollback” plans of some disability regulations on ice. And, most of all, dozens of states, and many counties and cities besides, have their own accessibility laws that matter too.
And these state laws were, in my mind, akin to the layers of cheese. And so, out of my own curiosity, I went ahead and found the number of states with digital accessibility laws, policies, regulations, or standards that are separate from the Title II rule.
How many states have these laws? Well, based on a few consultancy articles and my own traipsing through state archives, I counted at least thirty-six states that have their own laws, policies, or regulations that pre-date, match, or even go beyond the Title II regulation. I should note that the District of Columbia also must meet standards for federal government agencies. I show these on the map below, with a long description that follows.
Long image description: a map of the United States, with highlighted states in a red and black pattern indicating states with additional policies, laws, regulations, or standards. The highlighted states are Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Texas, Utah, Virginia, and Washington. Other states are in a blue and white pattern. (Learn more about long descriptions!)
So, what does this Swiss cheese of policy mean for you?
Accessibility is still the law! And common standards are still the most important way to meet the law. Even if one policy goes, the other policies still keep many of your obligations in place.
Locality matters - in some places, such as Maryland, California, and Texas, you will need to follow additional rules in some contexts.
If you are an advocate, get to know all the policies that might apply in your context or area, as these all back up what you are trying to do.
If you produce content and want to be accessible, the law still has your back.
And what does it mean for us as accessibility professionals and advocates?
We all need to be ready to talk about different policies, not just the one that is the most comprehensive or advanced. Even if we lose one policy, we still have other layers of Swiss cheese that back us up.
We may need to focus on compliance a bit more. I have often found that advocating for accessibility as “the right thing to do” is not always the most effective. The fact that these standards and rules are still something that has to be done will help keep momentum going.
We all should get to know our state rules a little better, especially as they are often more specific or stringent than the ADA. For example: New York requires adherence to a more recent version of the Web Content Accessibility Guidelines (WCAG) than the ADA does.
We also should borrow best practices from local governments wherever we can, as most of the state rules do roughly align. One of my favorite examples is from Texas, which, despite its anti-regulation reputation, has some of the strictest disability access enforcement anywhere in the world. Texas state employees produced a form that was essentially designed to see if a product’s manufacturers had produced accurate accessibility documentation or not. I do not have access to the form now, but Texas has saved a ton of grief for its disabled employees and residents with this little trick.
In general, Texas is pretty clever with accessibility too. At conferences, I always enjoy hearing the Texans discuss their latest and greatest methods in accessibility.
And if you want to talk more about state policies and navigating a Swiss cheese of regulation, I am here! Contact me to book an appointment.
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I do want to acknowledge that we have had some wildly bad news this past week with the current administration’s attempt to functionally shut down the Rehabilitation Services Administration (RSA) at the Department of Education by laying off nearly everyone under the guise of a shutdown. The RSA provides funding and essential support for vocational rehabilitation agencies across the country, which play an essential role in supporting people with disabilities in seeking employment. The current administration claims that these programs will move to Health and Human Services - but it is unclear how that will happen after ditching all the staff.
There are currently lawsuits seeking to reverse the layoff - led by lawyers who are very talented and helped reverse earlier layoffs at the Department. A judge issued a temporary pause on the layoffs yesterday, and I have confirmed that this pause does include RSA! That said, we need a rising tide of voices, so contact your elected representatives if you are in the US.
The same thing is happening for the Office of Special Education Programs (OSEP) - so call your elected representatives on that too.
And in the meantime, get to know the “Swiss cheese” of policy and funding in your state. We will all have to be better at navigating these local layers - especially since RSA and OSEP were understaffed and underresourced for decades.
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The past two weeks have been quite busy for me!
As you read above, I had the good luck of getting to attend M-Enabling this week - which is one of the largest digital accessibility conferences in the world. There were a lot of really fantastic sessions - I was particularly excited to meet with folks doing some really interesting things on supporting wayfinding for people with disabilities. A few more broad thoughts:
Many folks were very much engaging in what we can call AI hype, and often making somewhat unfounded claims about what Generative AI can or cannot do. I am a Generative AI skeptic - more on that in a coming issue - but I think it is worth reviewing this MIT report, and work by Baldur Bjarnason, Ed Zitron, and Allison Morrow on the topic. (I do think there are some helpful use cases.) A reminder: Generative AI is only one subset of AI, and many other types of AI - especially for transcription and image description - are well established in accessibility.
People are really excited about intersecting digital and physical accessibility. I really enjoyed speaking with the folks at RightHear, which is producing audio descriptions and navigational support for people with disabilities in indoor spaces like airports. I also met some really interesting folks working on accessibility for people with dementia, including a phone customized for older adults living with the early stages of dementia.
There were also many people who were really interested in discussing how we teach folks who are not comfortable with technology generally about accessibility! I discussed different methods to make things easy for people to make accessible with many different folks - and these conversations will support my client work for years to come.
I am onboarding a few different projects over the next few weeks - when it rains, it pours. While I cannot go too much into detail with this work, I can say that I will be spending a fair amount of time thinking about how to make rules easier for staff and customers to understand and follow. I am excited!
I have two speaking engagements coming up over the next few days:
I will be presenting on the European Accessibility Act this Saturday at the New York Public Library’s Accessible Technology Conference. Come hear me discuss how the EAA is another layer of Swiss cheese for us as advocates, and why we might be able to cudgel against the use of overlays and so-called “AI solutions.”
On Monday, I will be a guest lecturer (virtually) for my friend Gala Korniyenko’s planning studio class at Ohio State University. I will be talking about tax credits and ways to finance accessibility.
Unfortunately, we got another bit of bad news on accessibility as well here in the United States, in that the Department of Transportation weakened some new provisions protecting wheelchair users when they fly. Flying with a wheelchair or any mobility device can be a harrowing and degrading experience, and it is sad that this administration has turned the dial back on this.
On the other hand, Amtrak’s new train sets are rolling out on the Acela high-speed rail service, and they have a bunch of new accessibility features, including improved bathrooms and easier-to-access seating, better signage, Braille, as well as a more accessible Cafe car. Many of these features will also be on the new Airo trains coming out on regional services across the country next year. Though Amtrak still has work to do with accessibility, this is a really big advantage - especially as we people with disabilities are more likely to take the train than other groups. Here are some photos from my husband’s ride on the new Acela train last week:
Three photos from the NextGen Acela - photos courtesy David Ouziel
That is it from me! See you in two weeks,
Jonathan Katz-Ouziel