On August 4, 2023, the U.S. Department of Justice (“DOJ”) released its highly anticipated proposed changes to the regulations implementing Title II of the Americans with Disabilities Act (“ADA”). Title II prohibits state and local governments from discriminating against individuals with disabilities. The regulations aim to increase accessibility of websites and mobile applications by clarifying how these public entities can meet their ADA obligations on a technical level. The DOJ commented that as state and local governments increasingly move their programs online (including permit applications, absentee ballots, and payment of taxes and fees), ensuring individuals with disabilities have equal access to those governmental services is essential. While the DOJ’s proposed rule does not propose changes to Title III of the ADA (applying to places of public accommodation), these proposed rules may very well serve as a guide for places of public accommodation subject to Title III.

The DOJ’s proposed rule requires compliance with the Web Content Accessibility Guidelines (WCAG), Version 2.1, Level AA. Based upon previous public feedback and the DOJ’s independent research, the DOJ proposed the intermediate Level AA as 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 disability – and yet is feasible for public entities’ web developers to implement.” The DOJ further explained that Level AA conformance is “widely used, making it more likely that web developers are already familiar with its requirements.”

The DOJ also proposed a number of exceptions to the WCAG’s technical standard requirement in order for state and local governments to prioritize accessibility for the most important and frequently used content, while avoiding substantial burdens on public entities. These proposed exceptions include: (1) Archived Web Content (content which is maintained solely for reference, research or recordkeeping); (2) Preexisting Conventional Electronic Documents (PDFs, word processor, presentation, and spreadsheet file formats that were made available before the compliance date); (3) Third-Party Web Content; (4) Linked Third-Party Web Content; and (5) Password-Protected Files (class or course content for enrollees, or individual-specific conventional electronic documents), subject to certain limitations. However, even if digital content falls within one of the compliance exceptions, Title II entities still are required under the ADA to provide effective communication and make reasonable modifications. That is, if an individual with a disability requests the excepted content, it will still need to be provided in an accessible format.

With respect to timing, the DOJ proposed that depending on the population, all state and local governments must follow the technical standard within two or three years after the final rule is published. Specifically, entities with a population of 50,000 or more would have to comply with WCAG, Version 2.1, Level AA, within two years after the publication of the final rule. Entities with a population of less than 50,000, in addition to special district governments (entities with a specific function), would need to comply within three years.

Litigation surrounding digital accessibility increased significantly after the Trump Administration placed the DOJ’s web accessibility rulemakings under Title II and Title III on a list of “inactive” actions in 2017.  Absent guidance from the DOJ, courts were left to consider whether websites and mobile applications were covered under the ADA. These proposed changes under the Biden Administration provide concrete standards for state and local governments to ensure compliance under the ADA from a technical standpoint, and provide anticipatory guidance for places of public accommodation and private entities seeking to ensure their websites and mobile applications are accessible. 

Once final regulations are issued, both public and private entities providing goods and services online and via mobile applications should evaluate their current accessibility policies, and begin preparation to adopt the appropriate WCAG technical standard in order to remove potential access barriers. Attorneys in Ballard Spahr’s Accessibility Group represent entities covered by the ADA and analogous state and local accommodation laws, and we will be tracking and reporting on changes as they occur.  We are available to assist with implementing these accessibility requirements.