The United States Department of Justice (“DOJ”) recently issued a notice of proposed rulemaking under Title II of the Americans with Disabilities Act (“ADA”) setting forth technical requirements for state and local government websites and apps to make them more accessible and usable by individuals with disabilities.

Guidance Issued in 2022

In our March 2022 article, we noted that the DOJ has consistently taken the position that the ADA’s requirements apply to:

• all the services, programs and activities of state and local governments, including those offered online, and
• all the goods, privileges, or activities offered by public accommodations, including those offered online. 

We also discussed guidance that the DOJ issued regarding website accessibility. That guidance focused on the importance of state and local governments, schools, and businesses ensuring that their websites do not create unnecessary barriers that make it difficult or impossible for a person with a disability to access information.  It did not, however, set forth specific regulations or detailed standards for evaluating compliance.

New Proposed Rules

The DOJ has now issued proposed new federal regulations, which, if adopted, will be binding on state and local governments. The newly proposed section of the Title II ADA regulations sets forth technical requirements to ensure that state and local governments make readily accessible their web content and mobile apps that are (1) made available to members of the public or (2) used to offer their services, activities, and programs to the public. The proposed regulations address web content such as text, images, videos, controls, sounds, navigation menus, animations, and documents, as well as online sensory experiences, such as visual art or musical performances.

As explained in the notice of proposed rulemaking, the DOJ is proposing to adopt an internationally recognized accessibility standard for web access, the Web Content Accessibility Guidelines (“WCAG”) 2.1 as the technical standard for web content and mobile app accessibility under Title II of the ADA. The DOJ’s proposal would require that public entities comply with the WCAG 2.1 Level AA success criteria and conformance requirements, unless a provision of the rule provides otherwise.

Compliance

Notably, the DOJ recognizes that small public entities may face challenges implementing the proposed requirements due to limited resources. As a result, the DOJ proposes staggering the compliance dates of the new rules based on total population.[1] A public entity with a total population of fewer than 50,000 and special district governments must comply within three years after publication of the final rule. A public entity with a total population of 50,000 or more will have only two years to become compliant.

Exceptions

Finally, the DOJ outlines seven exceptions to its proposed web accessibility requirements. These include:

1. Archived web content;
2. Preexisting conventional electronic documents;
3. Web content posted by third parties on the public entity’s website;
4. Third-party web content linked from a public entity’s website;
5. Course content on a public entity’s password-protected or otherwise secured website for admitted students enrolled in a specific course offered by a public postsecondary institution;
6. Class or course content on a public entity’s password-protected or otherwise secured website for students or parents of students enrolled in a specific class or course at a public elementary or secondary school; and
7. Conventional electronic documents that are about a specific individual, their property, or account that is password-protected or secured in another way.

Even if an exception applies, a public entity will still be required, upon an individual’s request, to provide web or mobile app content to that individual in an accessible format in order to comply with the entity’s existing obligations under other regulatory provisions implementing Title II of the ADA.  For example, upon request, a government entity may need to provide an individual with low vision an “accessible” version of archived town meeting minutes. This could take the form of providing the individual with a “large print version of the minutes.”

Written comments on the proposed rules are being accepted until October 3, 2023.  State and local governments, including public school districts, are advised to monitor whether and when the final rule is published, as that date will start the clock ticking for their compliance deadlines.

---

[1] “Total population refers to the size of the public entity’s population according to the U.S. Census Bureau or, if the public entity does not have a specific population but belongs to another jurisdiction that does, the population of the jurisdiction to which the entity belongs.” https://www.regulations.gov/document/DOJ-CRT-2023-0007-0001.