Nearing Deadline for Comments on DOJ Accessibility NPRM: ADA Title II

In July 2023 the United States’ Department of Justice announced that it would publish an NPRM, or Notice of Proposed Rulemaking, intended to strengthen the access of individuals with disabilities to web and mobile applications. The NPRM, which is basically a new draft rule, would bring changes to the Americans with Disabilities Act (ADA), specifically Title II which addressed the way public services are made accessible to individuals with disabilities, aiming “to improve web and mobile applications (apps) access for people with disabilities and clarify how public entities – primarily state and local governments – can meet their existing ADA obligations as many of their activities shift online.”

Following this announcement, on August 4, 2023 the NPRM was officially published in the Federal Register, and open to public comment for a period of 60 days, until October 3, 2023. Relevant stakeholders and the general public can submit their comments until that date on the official Regulations.gov website, on the relevant page  dedicated to this proposed rule. 

At the same time, the official ada.gov website published a factsheet entitled “Fact Sheet: Notice of Proposed Rulemaking on Accessibility of Web Information and Services of State and Local Government Entities” in which the proposed changes and exceptions are outlined in the form of a “plain language summary.”

Below we look at these proposed changes and exceptions, extracted from the factsheet. 

Proposal: Adopt the Web Content Accessibility Guidelines (WCAG) Version 2.1, Level AA as the technical standard that state and local governments would need to follow.

According to the official text of the NPRM, sections “Proposed WCAG Version” and “Proposed WCAG Conformance Level,” the reasoning behind the DOJ’s suggestion the adoption of the web content accessibility guidelines of WCAG 2.1 Level AA is motivated by the following:

The Department expects that adopting WCAG 2.1 as the technical standard will have benefits that are important to ensuring access for people with disabilities to public entities’ services, programs, and activities. For example, WCAG 2.1 requires that text be formatted so that it is easier to read when magnified. This is important, for example, for people with low vision who use magnifying tools. Without the formatting that WCAG 2.1 requires, a person magnifying the text might find reading the text disorienting because they could have to scroll horizontally on every line.

WCAG 2.1 also has new success criteria addressing the accessibility of mobile apps or web content viewed on a mobile device. For example, WCAG 2.1 Success Criterion 1.3.4 requires that page orientation (i.e., portrait or landscape) not be restricted to just one orientation, unless a specific display orientation is essential. This feature is important, for example, for someone who uses a wheelchair with a tablet attached to it such that the tablet cannot be rotated. If content only works in one orientation (i.e., portrait or landscape) it will not always work for this individual depending on how the tablet is oriented, and could render that content or app unusable for the person. Another WCAG 2.1 success criterion requires, in part, that if a device can be operated by motion—for example, shaking the device to undo typing—that there be an option to turn off that motion sensitivity. This could be important, for example, for someone who has tremors so that they do not accidentally undo their typing.

[...]

WCAG 2.1’s incorporation of mobile-related criteria is important because of public entities’ increasing use of mobile apps in offering their services, programs, and activities via mobile apps. As discussed in more detail later, public entities are using mobile apps to offer a range of critical government services—from traffic information, to scheduling trash pickup, to vaccination appointments.

Because WCAG 2.1 is the most recent recommended version of WCAG and generally familiar to web professionals, the Department expects it is well-positioned to continue to be relevant even as technology inevitably evolves. In fact, the W3C advises using WCAG 2.1 over WCAG 2.0 when possible because WCAG 2.1 incorporates more forward-looking accessibility needs.

[...]

Based on review of previous public feedback and independent research, the Department believes that WCAG 2.1 Level AA is an appropriate conformance level because it includes criteria that provide web accessibility to individuals with disabilities—including those with visual, auditory, physical, speech, cognitive, and neurological disabilities—and yet is feasible for public entities’ web developers to implement. In addition, Level AA conformance is widely used, making it more likely that web developers are already familiar with its requirements. Though many of the entities that conform to Level AA do so under WCAG 2.0, not 2.1, this still suggests a widespread familiarity with most of the Level AA success criteria, given that 38 of the 50 Level A and AA success criteria in WCAG 2.1 are also included in WCAG 2.0.

Proposal: State and local governments’ web content and mobile apps would have to comply with the technical standard.

In line with the definition of web content that the NPRM offers, the proposal would apply “to web content that a state or local government makes available to the public or uses to offer services, programs, and activities to the public.” The definition of web content here is information or sensory experience—including the encoding that defines the content’s structure, presentation, and interactions—that is communicated to the user by a web browser or other software” with examples such as “text, images, sounds, videos, controls, animations, and conventional electronic documents.”

Proposal: We have proposed some exceptions. When an exception applies, specific kinds of web and mobile app content would not always have to comply with the technical standard.

Because it believes that state and local governments should be able to prioritize content so as to make the most important content be accessible, the Department has suggested “some specific types of content that [they] do not think are as frequently used or that may be particularly hard for state and local governments to address right now.” According to the factsheet, an example of this would likely be “an old water quality report from 1998 that the state has put in an archived section of its website and has not updated. If the exception applies, the report would not need to comply with the technical standard.”

Proposed Exceptions

1. Archived web content:
   

   State and local governments’ websites often include a lot of content that is not currently used. This information may be outdated, not needed, or repeated somewhere else. Sometimes, such information is archived on the website.

   • Web content that meets all three of the following factors would not need to comply with the technical standard:
     1. the content is maintained only for research, reference, or recordkeeping; AND
     2. the content is kept in a special area for archived content; AND
     3. the content has not been changed since being archived.

   Example: This exception would likely apply to web content like historical city council meeting minutes stored in the “archives” section of a city’s website.

2. Preexisting conventional electronic documents:
   

   Some state and local governments have a lot of old documents, like PDFs, on their website. It is our understanding that these can sometimes be difficult to make compliant with the technical standard.

   • Web or mobile app content that meets both of the following factors generally would not need to comply with the technical standard:
     1. the documents are in certain file formats specified in the proposed rule, like word processing, presentation, PDF, or spreadsheet files; AND
     2. they are available on the state or local government’s website or mobile app before the date the state or local government will have to comply with this rule (after the rule is finalized).

   Example: This exception would likely apply to a spreadsheet of COVID-19 statistics from 2020 or a Microsoft Word version of a water quality report from 2015.

   Limit on when this exception applies: This exception would not apply if the pre-existing documents are currently being used by members of the public to access or participate in public services, programs, or activities.

   Example: A PDF version of a business license application that was posted on a state or local government’s website in 2020. If members of the public can still use that PDF to apply for a business license in 2023, the exception would not apply. The application would generally need to comply with the technical standard.
   
   
3. Content posted by a third party:
   

   Third parties sometimes post content on state and local governments’ websites. Third parties are members of the public or others who are not controlled by state or local governments. The state or local government also may not have control over the content third parties post, and this content may be outdated or not relevant.

   • Web content that is posted by third parties on a state or local government’s website would not need to comply with the technical standard.

   Example: This exception would likely apply to a message that a member of the public posts on a town’s message board.

   
   
4. Linked third-party content:
   

   Many state and local governments’ websites include links to other websites. Clicking on one of these links will take an individual away from the state or local government’s website to the website of a third party. Typically, the state or local government has no control over the third party or their web content.

   • Content that a state or local government links to from its website generally would not need to comply with the technical standard.

   Example: A town links to local restaurants’ websites. The town will typically not have to make sure the restaurants’ websites comply with the technical standard.

   Limit on when this exception applies: This exception would not apply if the state or local government is using the linked web content to offer its service, program, or activity.

   Example: A city links to a company’s website where people can pay city registration fees or taxes. The city would need to use a third-party payment website that complies with the technical standard.
   
   
5. Public schools’ password-protected course content:
   

   Public elementary schools, middle schools, high schools, colleges, and universities often have a lot of content associated with their classes and courses—like PDFs of required readings for homework—that is only available to students enrolled in a particular class. It might be difficult to make all of this content comply with the technical standard immediately, and there might not be a student or parent with a disability in the class or course who needs access to the content.

   • Password-protected content associated with specific classes or courses generally would not need to comply with the technical standard.

   Example: The password-protected class content for a particular teacher’s tenth grade chemistry class typically would not need to comply with the technical standard.

   Limit on when this exception applies: This exception would not apply if:

   • a student with a disability who needs accessible content is enrolled in the class or course; OR
   • a student is enrolled in an elementary, middle, or high school class or course whose parent needs accessible content because of the parent’s disability.

   Example: A college student who is blind is enrolled in a literature course. The course content would need to comply with the technical standard. 
   
   

   Example: A student whose parent has low vision is enrolled in a tenth-grade chemistry class. The class content would need to comply with the technical standard. 
   
   

   Below is a timeline for public schools to make password-protected course content accessible when a student or their parent needs accessible content: 
   
   

   When did the student enroll in the class or course?	When would the content need to be made accessible?
   Before the academic term begins	By the date the academic term begins
   After the academic term begins	Within five business days

   
   
6. Individualized documents that are password protected:
   

   State and local governments sometimes use password-protected websites to share documents that are for specific individuals—like a water or tax bill. It might be difficult to make all of these documents accessible immediately and there might not be a person with a disability who needs access to these documents.

   • Web content that meets all three of the following factors would not need to comply with the technical standard:
     1. the content is in certain file formats, like word processing, presentation, PDF, or spreadsheet files; AND
     2. the files are about a specific person, property, or account; AND
     3. the files are password protected.

   Example: This exception would apply to a PDF version of a water bill for a person’s home that is made available in that person’s secure account.

   
   

Proposed Time to Comply with the Rule Once It Is Finalized

The Department of Justice intends to have state and local governments follow the technical standard in two or three years after the final rule is published, depending on their population. The below table shows how much time a state or local government would have to comply with this rule once it is finalized.

After this time, state and local governments would have to continue to make their web content and mobile apps comply with the technical standard.

Looking at the above, some questions arise around Title III of the ADA, or the connection - if there is one - between ADA Title II and Section 508 in terms of applicability and accessibility requirements. A brief clarification would be as follows: 

• ADA Title II applies to “all services, programs, and activities provided or made available by public entities.” A public entity is “(1) any State or local government; (2) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and the National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act). The proposed changes in the NPRM would add web and mobile application accessibility, based on WCAG 2.1 Level AA.
• SECTION 508 - applies to federal agencies and mandates the use of accessible ICT. For covered federal entities, the Access Board requires conformance with WCAG 2.0 Level A and Level AA.
• ADA TITLE III - applies to any “(1) public accommodation; (2) commercial facility; or (3) private entity that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes. Place of public accommodation means “a facility operated by a private entity whose operations affect commerce.” There is no mention of web and mobile app accessibility at this time, although Title III is often cited in web accessibility lawsuits.