Beginning in April, state and local governments will be required to comply with a new final rule published by the U.S. Department of Justice updating regulations for Title II of the Americans with Disabilities Act. The Rule establishes specific requirements, including technical standards, for all digital services provided by public entities, such as websites, mobile applications, online learning platforms, registration systems and financial aid information to ensure that such services are accessible to people with disabilities.
Title II of the ADA requires public entities to provide individuals with disabilities with effective communication, reasonable modifications and an equal opportunity to participate in or benefit from their services, programs and activities. It applies generally to all services programs, or activities of state and local governments – including those offered online and through apps – and is intended to remove barriers preventing individuals with disabilities from accessing essential services and participating in civic events, programs and activities.
Previously, there were no specific accessibility standards for government web content or apps; public entities were merely required to follow general standards of nondiscrimination and communicate “effectively.” This new Rule adopts technical standards that state and local governments are required to follow to ensure digital accessibility.
Overview / General Requirements
The updated Regulations, “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities,” which went into effect in June 2024, add a new subpart to the ADA Title II regulations. Specifically, 28 CFR part 35 “sets forth technical requirements for ensuring that web content that State and local government entities provide or make available, directly or through contractual, licensing, or other arrangements, is readily accessible to and usable by individuals with disabilities.”
In particular, the Regulations adopt Web Content Accessibility Guidelines (WCAG) 2.1, Level AA – an internationally recognized web accessibility standard – as the standard for public entities subject to Title II of the ADA. As a result, all “web content” (e.g., information and sensory experiences communicated to a user by the web browser, including text, images, sound videos, and documents), mobile apps and other digital services offered or provided by state and local governments must meet the WCAG 2.1, Level AA criteria to be considered “accessible” in accordance with the ADA. This standard applies to all apps used by covered public entities, including apps provided or administered by a third-party vendor.
Exceptions
The Regulations identify five specific exceptions to WCAG 2.1, Level AA compliance:
1. Archived web content – Content that is not currently used, whether because it is outdated, not needed, or repeated elsewhere in the web content or app – does not need to comply with WCAG 2.1, Level AA but only if it meets the following four points:
- The content was created before the date the state or local government must comply with this Rule, or reproduces paper documents or the contents of other physical media (audiotapes, film negatives, and CD-ROMs for example) that were created before the government must comply with this Rule;
- The content is kept only for reference, research or recordkeeping;
- The content is kept in a special area for archived content; and
- The content has not been changed since it was archived.
2. Preexisting conventional electronic documents – Old documents, such as PDFs, on a public entity’s website that are difficult to make compliant with WCAG 2.1, Level AA do not need to meet the standard if, and only if, the following two points are met:
- The documents are word processing, presentation, PDF or spreadsheet files; and
- They were available on the state or local government’s website or mobile app before the date the state or local government must comply with this Rule.
3. Third-party content – Content posted by a third party on a state or local government’s website or mobile app would not need to meet the standard unless the third party is posting due to contractual, licensing, or other arrangements with the public entity. For purposes of this exception, “third parties” are considered members of the public or others who are not controlled by or acting on behalf of state or local governments.
4. Individualized documents that are password-protected – Documents for specific individuals that are shared between state and local governments using password-protected websites, such as a water or tax bill, need not comply but only if the documents are:
- Word processing, presentation, PDF or spreadsheet files;
- About a specific person, property or account; and
- Password-protected or otherwise secured.
5. Preexisting social media posts – Social media posts made by a state or local government before the date the state or local government must comply with the new Rule do not need to meet the standard.
Importantly, even when an exception applies and content is not required to meet WCAG 2.1, Level AA, state or local governments may still be required to provide the content to a person with a disability in manner that is accessible to them.
Compliance Dates
The DOJ has staggered the compliance deadlines for different public entities based on their total population as calculated by the United States Census Bureau. Public entities with a population of 50,000 or more must comply with the Rule starting April 24, 2026, while special district governments and public entities with a population of less than 50,000 have until April 26, 2027.
Further Considerations
If a public entity has two versions of the same web content or content in an app – one version that is not accessible and another version that is accessible and provides the same features – the second version is called a “conforming alternate version.” Under the Rule, a conforming alternate version must be accessible, up to date and contain the same information and functionality as the inaccessible web content. It also must be made available in specific ways, such as through a conforming page or an accessibility-supported mechanism. But conforming alternate versions may only be used when technical or legal limitations make it impossible for a public entity to make web content directly accessible.
The Rule further states that compliance with WCAG 2.1, Level AA is not required to the extent that such compliance would result in a fundamental alteration in a service, program or activity provided by the public entity, or if compliance would result in an undue or administrative burden on the government.
Miles & Stockbridge’s labor and employment lawyers are available to assist public entities with reviewing their web content and apps to ensure compliance with the Rule and WCAG 2.1, Level AA guidelines by the applicable deadlines.
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