On August 4th, the Department of Justice (DOJ) released a notice of proposed rulemaking, which could substantially affect the ADA’s applicability to websites and mobile applications. Specifically, these would be a revised set of regulations related to Title II of the Americans with Disabilities Act (ADA), establishing specific requirements for making web and mobile apps accessible.
History of the ADA & Digital Accessibility
When assessing these new regulations, the history of the ADA and its application to websites and mobile applications is important.
For starters, the ADA was signed into law on July 26, 1990, when the internet and digital technologies, as we know them today, did not exist remotely. As a result, there has been an ongoing debate and legal analysis surrounding the application of the ADA to websites, particularly in recent times.
Without specific regulations from the U.S. Department of Justice (DOJ) regarding website accessibility under the ADA, many courts have relied on various standards and guidelines to determine whether a website is accessible. However, this is mainly gray without specific requirements. We will dive into this below, but it is important to note that this would still be the case for Title III entities as the proposed rulemaking released last week only applies to Title II entities.
However, the absence of any revisions to a law released well before the current state of the internet, with how rapidly technology has advanced, specifically in recent years, has created a long overdue need for the DOJ to step up.
Recapping the DOJ’s Notice of Proposed Rulemaking
The release from the DOJ last week is extremely extensive and detailed; you can read the full document on the Regulations.gov website.
Our team will continue to keep up to date on comments received and the overall process while also providing a more detailed analysis of specific key points of the proposed regulations.
However, there are a few critical points in our review of the documentation that we felt all public entities should be assessed as they consider building or reviewing their digital accessibility plans.
Required Conformance: The updated WCAG 2.2 regulations are pending release later this month, but generally, it takes some time for fresh regulations to become the accepted standard. Under the proposed rules, the compliance level required would be WCAG 2.1 AA. This comes as no surprise as the current recognized global standard for web and digital accessibility goes above and beyond Section 508 Compliance, which currently requires WCAG 2.0 AA conformance.
Digital Properties in Scope: Under the currently proposed revisions to the ADA, it is interesting that are not only websites required to comply (which was always assumed) but also mobile applications. This would apply to all digital properties and content that a public entity makes available to general consumers surrounding details on available services, public programs, upcoming activities, or the like. This would also include electronic documents posted on these websites or mobile applications – including but not limited to PDFs or Word Documents.
Public Entities Covered: This proposed regulation update to the ADA only applies to public entities as defined by Title II of the ADA in its current state. This means that the proposed rules would not, in their current state, provide clarity to many of the current high-volume legal cases generally aimed at Title III entities. Title II entities under the ADA include state and local government, government agencies, and public education (including public universities and community colleges). The DOJ outlined that the proposed regulations would affect 91,489 government entities, including higher education.
Timeline to Comply: For starters, this would entirely depend on this regulation being published as a final rule in the future (which, at this point, is not guaranteed). If this is published as the final rule in its current state, any public entity with a population of 50,000 or more would be given two years to comply from the publication date. Public entities with less than this 50,000 threshold would have up to three years to comply upon publication.
What is next for the proposed rule?
To provide more holistic clarity, a Notice of Proposed Rulemaking (NPRM) is a preliminary step in making or amending regulations by a federal agency – in this case, the DOJ. The NPRM is part of the rulemaking process outlined by the Administrative Procedure Act (APA) and serves as a mechanism for soliciting public input before a final rule is issued.
With this proposed rule being formally published by the DOJ, we have moved into the public comment period for the NPRM. This includes a period that ranges from 30 to 60 days in most cases for members of the public (stakeholders, excerpts in the field or organizations affected, to name a few) to provide feedback or recommendations on the proposed rule.
In the case of this specific NPRM, the DOJ has provided 60 days for comments by the public, which must be submitted by October 3, 2023. Specifically, in the case of this proposed rule, the DOJ has provided 67 Questions for which they would like to receive public comment from organizations and accessibility experts. Our team will be digging through these questions and providing comments where applicable. We strongly encourage you or your organization to do this, especially if the proposed rule applies to your organization as a Title II entity.
Reach out with Questions!
If your organization has any questions at all on what this proposed rule could mean for your organization, or if our team would like to start to move your websites, mobile applications, and documents into compliance ahead of this proposed rule being formally published (which of course we recommend as accessibility is simply good for business), feel free to reach out at any time.
Our team has experts across all covered digital properties outlined in this proposed rule, and we would be happy to discuss what this means for your compliance journey moving forward!