Today’s blog entry discusses the DOJ Title II final rule on web accessibility, including mobile apps. The final rule can be found here. As usual, a blog entry is divided into categories, and they are: 1) the actual regulations; and 2) highlights of DOJ response to comments and thoughts/takeaways

 

I

Actual Regulations

 

PART 35—NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES 1. The authority citation for part 35 continues to read as follows: Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a. Subpart A—General 2. Amend § 35.104 by adding definitions for Archived web content, Conventional electronic documents, Mobile applications (apps), Special district government, Total population, User agent, WCAG 2.1, and Web content in alphabetical order to read as follows:

 

  • 35.104 Definitions. * * * * * Archived web content means web content that— (1) Was created before the date the public entity is required to comply with this rule, reproduces paper documents created before the date the public entity is required to comply with this rule, or reproduces the contents of other physical media created before the date the public entity is required to comply with this rule; (2) Is retained exclusively for reference, research, or recordkeeping; 55 (3) Is not altered or updated after the date of archiving; and (4) Is organized and stored in a dedicated area or areas clearly identified as being archived. * * * * *

 

Conventional electronic documents means web content or content in mobile apps that is in the following electronic file formats: portable document formats (“PDF”), word processor file formats, presentation file formats, and spreadsheet file formats. * * * * *

 

Mobile applications (“apps”) means software applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets. * * * * *

 

Special district government means a public entity—other than a county, municipality, township, or independent school district—authorized by State law to provide one function or a limited number of designated functions with sufficient administrative and fiscal autonomy to qualify as a separate government and whose population is not calculated by the United States Census Bureau in the most recent decennial Census or Small Area Income and Poverty Estimates. * * * * *

 

Total population means— (1) If a public entity has a population calculated by the United States Census Bureau in the most recent decennial Census, the population estimate for that public entity as calculated by the United States Census Bureau in the most recent decennial Census; or (2) If a public entity is an independent school district, or an instrumentality of an independent school district, the population estimate for the independent school district as calculated by the United States Census Bureau in the most recent Small Area Income and Poverty Estimates; or 56 (3) If a public entity, other than a special district government or an independent school district, does not have a population estimate calculated by the United States Census Bureau in the most recent decennial Census, but is an instrumentality or a commuter authority of one or more State or local governments that do have such a population estimate, the combined decennial Census population estimates for any State or local governments of which the public entity is an instrumentality or commuter authority; or (4) For the National Railroad Passenger Corporation, the population estimate for the United States as calculated by the United States Census Bureau in the most recent decennial Census. User agent means any software that retrieves and presents web content for users. * * * * *

 

WCAG 2.1 means the Web Content Accessibility Guidelines (“WCAG”) 2.1, W3C Recommendation 05 June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. WCAG 2.1 is incorporated by reference elsewhere in this part (see §§ 35.200 and 35.202). Web content means the information and sensory experience to be communicated to the user by means of a user agent, including code or markup that defines the content’s structure, presentation, and interactions. Examples of web content include text, images, sounds, videos, controls, animations, and conventional electronic documents. Subpart H—Web and Mobile Accessibility 3. Add new subpart H to read as follows: Subpart H—Web and Mobile Accessibility Sec. 35.200 Requirements for web and mobile accessibility. 35.201 Exceptions. 35.202 Conforming alternate versions. 57 35.203 Equivalent facilitation. 35.204 Duties. 35.205 Effect of noncompliance that has a minimal impact on access. 35.206–35.209

 

[Reserved] § 35.200 Requirements for web and mobile accessibility. (a) General. A public entity shall ensure that the following are readily accessible to and usable by individuals with disabilities: (1) Web content that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements; and (2) Mobile apps that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements. (b) Requirements. (1) Beginning two years after the publication of this rule in final form, a public entity, other than a special district government, with a total population of 50,000 or more shall ensure that the web content and mobile apps that the public entity provides or makes available, directly or through contractual, licensing, or other arrangements, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. (2) Beginning three years after the publication of this rule in final form, a public entity with a total population of less than 50,000 or any public entity that is a special district government shall ensure that the web content and mobile apps that the public entity provides or makes available, directly or through contractual, licensing, or other arrangements, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental 58 alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. (3) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51.

 

  • 35.201 Exceptions. The requirements of § 35.200 do not apply to the following: (a) Archived web content. Archived web content as defined in § 35.104. (b) Preexisting conventional electronic documents. Conventional electronic documents that are available as part of a public entity’s web content or mobile apps before the date the public entity is required to comply with this rule, unless such documents are currently used to apply for, gain access to, or participate in the public entity’s services, programs, or activities. (c) Content posted by a third party. Content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity. 59 (d) Individualized, password-protected or otherwise secured conventional electronic documents. Conventional electronic documents that are: (1) About a specific individual, their property, or their account; and (2) Password-protected or otherwise secured. (e) Preexisting social media posts. A public entity’s social media posts that were posted before the date the public entity is required to comply with this rule.

 

  • 35.202 Conforming alternate versions. (a) A public entity may use conforming alternate versions of web content, as defined by WCAG 2.1, to comply with § 35.200 only where it is not possible to make web content directly accessible due to technical or legal limitations. (b) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51.

 

  • 35.203 Equivalent facilitation. Nothing in this subpart prevents the use of designs, methods, or techniques as alternatives to those prescribed, provided that the alternative designs, methods, or techniques result in substantially equivalent or greater accessibility and usability of the web content or mobile app.

 

  • 35.204 Duties. Where a public entity can demonstrate that compliance with the requirements of § 35.200 would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens, compliance with § 35.200 is required to the extent that it does not result in a fundamental alteration or undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with § 35.200 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or their designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity to the maximum extent possible.

 

  • 35.205 Effect of noncompliance that has a minimal impact on access. A public entity that is not in full compliance with the requirements of § 35.200(b) will be deemed to have met the requirements of § 35.200 in the limited circumstance in which the public entity can demonstrate that the noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the public entity’s web content or 61 mobile app to do any of the following in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use: (a) Access the same information as individuals without disabilities; (b) Engage in the same interactions as individuals without disabilities; (c) Conduct the same transactions as individuals without disabilities; and (d) Otherwise participate in or benefit from the same services, programs, and activities as individuals without disabilities.

 

  • § 35.206–35.209 [Reserved] 4. Add Appendix D to part 35 to read as follows: Appendix D to Part 35—Guidance to Revisions to ADA Title II Regulation on Accessibility of Web Information and Services of State and Local Government Entities Note: This Appendix contains guidance providing a Section-by-Section Analysis of the revisions to 28 CFR part 35 published on [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER].

 

II

Highlights of DOJ’s Response to Comments And Thoughts/Takeaways

 

  1. The regulations go into effect 60 days after the date of publication in the Federal Register. As far as I can tell, as of April 18, 2024, the rule has not been published yet in the Federal Register. I would expect it to come out shortly.
  2. DOJ made only three substantive changes to the proposed rule. First, it changed “does not,” to “would not,” with respect to the nonconformance regulation so as to clarify that the threshold requirements for bringing a challenge to compliance are the same as under any other provision of the ADA. The critical issue is whether the nonconformance is the type of barrier affecting the ability of individuals with pertinent disabilities to access the web content or mobile app in a substantially equivalent manner. Second, the proposed regulation for nonconformance used the phrase “prevents a person with a disability.” DOJ changed that to whether the nonconformance, “affects the ability of individuals with disabilities.” Finally, DOJ decided to specifically mention that timeliness, privacy, and independence were all components affecting whether the ease of use is substantially equivalent.
  3. With respect to temporary disruptions, DOJ believes it comes down to whether the temporary and then some nonconformance affects the ability of individuals with disability to use the public entity’s web content or mobile app in a substantially equivalent way. Of course, if the entire website or mobile app is shut down for everybody temporarily, there isn’t an issue in that case.
  4. DOJ strongly believes that the title II nondiscrimination requirements applies to all services, program, and activities of public entities, including those provided by the web as well as mobile apps.
  5. WCAG 2.1 level AA is the measuring stick for compliance.
  6. Separate but equal websites is something that can be done only rarely where it is not possible to make web content directly accessible due to technical or legal limitations.
  7. WCAG 2.1 level AA is not a strict liability standard if the public entity can demonstrate that the nonconformance has such a minimal impact on access that it does not affect the ability of individuals with disabilities to use the public entity’s web content or mobile app to access the same information, engage in the same interaction, conduct the same transaction, and otherwise participate in or benefit from the same services, program, and activities as individuals without disabilities. Nonconformance must provide the person with a disability with substantially equivalent or greater timeliness, privacy, independence, and ease of use (accessibility and usability). This is a very narrow exception and will rarely apply.
  8. There are some other points about this nonconformance rule that need mentioning: 1) it is for the public entity to demonstrate that, even though the web content or mobile app does not conform to the technical standard, the user experience for individuals with disabilities is substantially equivalent to the experience of individuals without disabilities; 2) individuals with disabilities must be able to access the same information as individuals without disabilities. This means that people with disabilities can access all the same information using the web content or mobile app that users without disabilities are able to access; 3) it is up to the public entity to demonstrate that the nonconformance exception is met with respect to the specific facts of the nonconformance at issue; 4) individuals with disabilities must be able to engage in the same interactions as individuals without disabilities. This means that people with disabilities can interact with the web content or mobile app in all the same ways that people with disabilities can; 5) a slight deviation in timing, especially when the time limit is long and the intended interaction a brief, is unlikely to affect the ability of people with disability to engage in interactions. Even so, the public entity must always demonstrate that this element is met with respect to the specific facts of the nonconformance at issue; and 6) persons with disabilities must be able to conduct the same transactions as individuals without disabilities. This means that people with disabilities can complete all of the same transactions on the web content or mobile app that people without disabilities can.
  9. DOJ believes that telephone lines can no longer realistically provide equal access to people with disabilities.
  10. The ADA in complying with these regulations is a nondelegable duty. DOJ absolutely means it. See also this blog entry.
  11. DOJ believe that the rule is necessary because of the inadequacy of voluntary compliance with technical standards, such as WCAG.
  12. DOJ made a couple of changes from the proposed rulemaking with respect to the definition of “archived web content.” The changes were done to make clear that archived web content limited to three types of historic content: web content created before the date the public entity is required to comply with the rule; web content that reproduces a paper document created before the date the public entity is required to comply with the rule; and web content that reproduces the contents of other physical media created before the date the public entity is required to comply with the rule. They also got rid of the word “maintained,” and replaced it with, “maintained.” Maintained was a better word for purposes of this rule.
  13. DOJ slightly revised it definition of “web content,” from the proposed rule to align it with the WCAG 2.1 (the regulation specifically incorporates WCAG 2.1 into the rule), definition of web content.
  14. The rule applies to web content and mobile apps that a public entity provides or makes available even if it comes from third parties or third parties have something to do with what the public needs to access through the nonfederal governmental entity. It could also be a situation where the public entity tells its citizen to use a certain app when it comes to public services. For example, here in the City of Decatur Georgia, if you want to pay for parking on the streets, there is an app you can use for that. Again, that the ADA is a nondelegable duty cannot be overemphasized. DOJ spends a considerable amount of time when explaining the regulation, discussing in so many words that the ADA is a nondelegable duty.
  15. DOJ believes that WCAG 2.1 is the better benchmark than WCAG 2.2.
  16. DOJ did not see the point of adding effective communication requirements to the rule sent title II entities already have an effective communication rule to deal with. See this blog entry for example.
  17. What people often don’t realize is that when a public entity claims that something is an undue burden, title II regulations require that the public entity certify as such and then do everything it can short of that to accommodate the person with the disability. DOJ reiterates that point. DOJ has made clear that the determination that an undue burden exists has to be made by a high-level official, no lower than a department head, having budgetary authority and responsibility for making spending decisions. The fact that modifications often don’t cost a lot of money, the entire resources of a public entity are looked to, and a high-level official has to put their name on the certification, means that you should not see many claims of undue burden. On the plaintiff side, if a public entity is claiming an undue burden, the attorney really should be looking for the certification.
  18. WCAG 2.1 level AA requires captions for live-audio content and DOJ has elected to utilize the same deadlines for compliance as a case for the rest of the regulation. DOJ specifically decided against prescribing captioning requirements beyond WCAG 2.1 level AA so as to allow maximum flexibility to determine the best way to comply with WCAG 2.1 level AA based upon current technology.
  19. DOJ elected not to include the exceptions that it had in the proposed rule for password-protected course content in elementary, secondary, and postsecondary schools. It believed that the proposed exception would have been redundant and cause confusion.
  20. DOJ elected not to include in the final rule a proposed exception for third-party content link from a public entity’s website as the exception was unnecessary and would only create confusion.
  21. With respect to digital textbooks, DOJ believe the most prudent approach is treating them the same as all other educational course materials.
  22. DOJ believe the most appropriate approach is treating public libraries the same as other public entities under the regulation.
  23. An unanswered question for me is what happens when WCAG advances to a completely different format? What happens as WCAG evolves with the Internet?
  24. If Pres. Biden is reelected, look for very similar rules with respect to title III of the ADA.
  25. It bears repeating that the ADA is a NONDELEGABLE duty!!!!!!!!!!
William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during…

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.

Read more about William GorenEmail
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