By Jessie Weber

The wait for technical standards spelling out how public entities can ensure their web and mobile content comply with the Americans with Disabilities Act (“ADA”) is finally over! On April 8, 2024, the U.S. Department of Justice (“DOJ”) issued its long awaited Final Rule governing the accessibility of state and local governments’ website content and mobile applications under Title II of the ADA. Although the DOJ has publicly recognized that the ADA extends to websites since 1996, see Letter from Deval L. Patrick, Assistant Att’y Gen., to Senator Tom Harkin (Sept. 9, 1996), both the disability rights community and the private sector have long called for the DOJ to issue technical specifications for how entities can ensure their web and mobile content comply with the ADA. The DOJ’s efforts to promulgate a rule providing technical standards for web accessibility for state and local governments under Title II of the ADA began in 2010, 75 FR 43460 (July 26, 2010). Fourteen years later, we finally have a rule that, with limited exceptions, requires all state and local government web and mobile content to meet the Web Content Accessibility Guidelines (“WCAG”) Version 2.1, Levels A and AA. Here are eight key takeaways from the Final Rule:

1. The rule makes clear that, in most cases, WCAG 2.1 AA provides the floor for complying with Title II of the ADA. Thus, public entities are free to employ alternatives to WCAG 2.1 AA (such as future versions of WCAG) as long as they provide the same or better level of accessibility and usability—a concept called “equivalent facilitation” under the new rule.
2. Just as the ADA specifies that a public entity can’t contract away their obligation to comply with the law, so too does the final rule make clear that the technical specifications apply to websites and mobile apps maintained or run exclusively by private third parties for public entities. An example the DOJ provides in its fact sheet regarding the new rule is that if a city lets people pay for public parking through a privately-run mobile app, that app must still meet WCAG 2.1 AA.
3. In addition to the existing exception for when a public entity can establish that providing accessibility would pose an undue burden or fundamental alteration, the rule sets forth five exceptions to meeting WCAG 2.1 AA. Importantly, the DOJ has made clear that these exceptions do not mean that the ADA does not apply to this content. Rather, public entities must still ensure that content falling within these exceptions meets the existing requirements of providing equally effective communication to individuals with disabilities and affording them an equal opportunity to participate in the public entity’s services, programs, and activities. Thus, public entities must still have a plan in place to ensure that individuals with disabilities can access exempted content in a format accessible to them—particularly since Title II of the ADA imposes an affirmative duty on public entities to ensure equal opportunity and equally effective communication in a proactive manner. 
4. The five exceptions are:

   i. Archived web content: To qualify for this exception, content must meet all four of the following criteria: (1) the content must have been created before the public entity was required to comply with the rule; and, the content (2) must be kept exclusively for reference, research, or recordkeeping, (3) in a specially identified area for archived content, and (4) cannot have been changed since archived. If any of these criteria are not met (for example, an archived document is updated or its content provides information that is currently relevant), then it must conform to WCAG 2.1 AA unless another exception applies.

   ii. Preexisting conventional documents: This exception pertains to word processing, presentation, PDF, or spreadsheet files that were available on the public entity’s website or mobile app before the date the entity had to comply with the rule. A big exception to this exception, however, is that documents that are still used to apply for, access, or participate in the public entity’s services, programs, or activities must conform to WCAG 2.1 AA. Thus, an older inaccessible PDF form that a town currently uses for a program application must be made compliant with WCAG 2.1 AA.

   iii. Limited third-party content: This exception applies to content posted to public entities’ websites and mobile apps by third parties who are not acting on behalf of the public entity. Notably, this exception does not extend to third-party content (like calendar or map widgets) that the public entity chooses to use on its website or to content posted by third-party vendors. Nor does it apply to the tools and platforms that allow for third-party content to be posted (for example, a message board platform). And, again, even where the exception applies, public entities still have an existing obligation to ensure that individuals with disabilities have equally effective access to any inaccessible third-party content. 

   iv. Individualized, password-protected documents: Word processing, presentation, PDF, or spreadsheet files that are password-protected and about a specific person, property, or account do not need to conform to WCAG 2.1 AA. But because of existing effective communication requirements, public entities still must ensure that individuals with disabilities receive their own individualized, password protected electronic documents in formats they can access equally. 

   v. Preexisting social media posts: A public entity’s social media posts from before it had to comply with this rule are exempted. Again, though, the public entity must still ensure it can provide equally effective access to older social media posts when requested by individuals with disabilities.

5. A welcome and noteworthy change from the DOJ’s draft version of this rule (the Notice of Proposed Rule Making) is the omission of two proposed exceptions for password-protected class or course content by public elementary, secondary, and post-secondary schools. In the Final Rule, the DOJ has recognized that these exceptions “would exacerbate existing educational inequities for students and parents with disabilities without serving their intended purpose of meaningfully alleviating burdens for public educational institutions.”
6. The rule confirms that separate is not equal when it comes to digital accessibility. The new rule makes clear that public entities cannot satisfy their legal obligations by offering a separate accessible version of inaccessible web or mobile content. A “conforming alternate version” of inaccessible content, as defined by WCAG 2.1, is reserved for very limited circumstances where entities cannot make their content directly accessible because of technical or legal limitations. Although the DOJ has explained that an example of a “technical limitation” would be where “technology is not yet capable of being made accessible” and a “legal limitation” may exist where web content “cannot be changed due to legal reason,” the parameters of these limitations may end up being developed further in the courts.
7. The rule provides that a public entity’s failure to fully comply with WCAG 2.1 AA could be allowed in the limited circumstance where the entity can demonstrate that the noncompliance has only a minimal impact on the ability of individuals with disabilities to access the same information, engage in the same interactions, conduct the same transactions, and otherwise participate in or benefit from the public entity’s services, programs, and activities—all in a manner that provides “substantially equivalent timeliness, privacy, independence, and ease of use.” It appears nonconformance with WCAG would have to be exceptionally minor and inconsequential to be permitted under this provision of the rule.
8. State and local governments with populations of more than 50,000 people (as determined by the United States Census Bureau in the most recent decennial Census), will have two years from publication of the final rule to comply, while those with fewer than 50,000 people and special district governments will have three years to comply. Critically, however, the existing obligations under the ADA to provide equally effective communication and equal opportunity continue to apply. In most cases, therefore, public entities will want to act earlier than the deadlines under the new rule to ensure its web and mobile content are accessible.

The DOJ’s Final Rule will become effective 60 days after it’s published in the Federal Register, which should be any day now. Hopefully, this new rule will form the basis for similar regulations setting forth technical specifications under Title III of the ADA, which governs the accessibility of public accommodations’ web and mobile content. After fourteen years in the making, we are thrilled to see DOJ finally provide technical specifications for how public entities can ensure their web and mobile content are accessible to all members of the public they serve, including individuals with disabilities.

Check out Inclusivity Strategic Consulting, part of Brown, Goldstein & Levy, to learn more about how we can assist organizations with complying with the ADA. At Inclusivity, we recognize that “fix it and forget it” doesn’t work for accessible websites and other technologies, because they are always growing and changing. Due to the dynamic environment of websites and other technologies, it is essential to have an ongoing strategy. We advise organizations on internal policies, procedures, accountability mechanisms, and procurement systems that make sure technology starts accessible and stays accessible.