The Department of Justice (DOJ) announced at the end of July that it plans to amend Title II of the Americans with Disabilities Act (ADA) with new website accessibility regulations. The public may catch a glimpse into clarified standards in April 2023 if the DOJ publishes its Notice of Proposed Rulemaking (NPRM) according to the current timetable.
How does this impact entities covered by Title II and website accessibility more broadly? Let’s break it down.
What did the DOJ actually say?
In its published Unified Agenda for Spring 2022, the DOJ stated it intends to publish a Notice of Proposed Rulemaking to clarify website accessibility standards.
Here is the full text of the announcement:
“The Americans with Disabilities Act (ADA) states that: no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity 42 U.S.C. 12132. However, many websites from public entities (i.e., State and local governments) fail to incorporate or activate features that enable users with disabilities to access the public entity’s programs, activities, services, or information online. The Department intends to publish a Notice of Proposed Rulemaking (NPRM) to amend its Title II ADA regulation to provide technical standards to assist public entities in complying with their existing obligations to make their websites accessible to individuals with disabilities.”
The announcement also included a timetable indicating the NPRM would be published April 2023 and the public comment period would run until June 2023.
What do “Unified Agenda” and “Notice of Proposed Rulemaking” mean?
Federal agencies publish a twice-yearly Unified Agenda to share with the public what future rulemaking activities will be considered or reviewed. The Unified Agenda can be thought of as the heads-up part of the rulemaking process: here’s what we’re planning and when.
According to the Federal Register’s Guide to the Rulemaking Process (PDF):
“The proposed rule, or Notice of Proposed Rulemaking (NPRM), is the official document that announces and explains the agency’s plan to address a problem or accomplish a goal. All proposed rules must be published in the Federal Register to notify the public and to give them an opportunity to submit comments. The proposed rule and the public comments received on it form the basis of the final rule.”
So, the recent announcement of upcoming Title II changes came via the Spring 2022 Unified Agenda. This is the public’s notice that the DOJ intends to provide technical accessibility standards for Title II compliance. When the department publishes the NPRM, it will be a draft of the proposed rulemaking changes. A public comment period will follow.
What is Title II of the ADA?
The ADA is a civil rights act that prohibits disability-based discrimination. Multiple titles comprise the ADA, each focused on ensuring equality in different spheres of life.
Title II of the ADA applies to state and local government entities. It protects the rights of people with disabilities to have full access to, participate in, and benefit from the “services, programs, or activities” of state and local governments. Unlike Section 504 of the Rehabilitation Act of 1973, Title II applies to those governments even if they do not receive federal funding.
Only those public entities covered by Title II (i.e., state and local governments) would be directly impacted by the potential technical website standards put forth by the DOJ.
Is this DOJ announcement important?
We think the news that the Department of Justice will potentially amend the ADA with specific website accessibility standards is meaningful and important for at least five reasons:
- Digital accessibility is back on the federal rulemaking radar.
- The accessibility of state and local government web services is critical.
- Federal sites already have regulations in place under Section 508, so this shores up, from a regulatory requirements standpoint, the accessibility of local, state, and federal government web spaces.
- This would be the first time that specific website accessibility regulations are successfully defined under the ADA.
- The technical standards will probably be WCAG (Web Content Accessibility Guidelines) 2.1.
After years of regulatory inaction — or more accurately, retraction from the previous administration — the calls for technical accessibility standards under the ADA may finally be answered for at least a subset of websites.
Part of the significance of such a move is that it would invalidate any claims of ignorance or uncertainty. Accessibility specialists already know that WCAG provides the best chance at consistent, repeatable, and sustainable accessibility initiatives. Codifying WCAG as the formal standard required by law, just like has been done at the federal government level via Section 508, would remove (or at least drastically reduce) any possibility of state or local governments defending inaccessibility due to lack of clarity in technical specifications and requirements.
Does this mean that private websites governed by ADA Title III will get similar upcoming regulatory clarity? We don’t know. Remember, in the DOJ’s Guidance on Web Accessibility and the ADA published in March, 2022, it states, “Businesses and state and local governments have flexibility in how they comply with the ADA's general requirements of nondiscrimination and effective communication. But they must comply with the ADA's requirements.”
For more on that story, read: New Department of Justice ADA Web Accessibility Statement: Clear Guidance or More of the Same?.
Will the DOJ possibly tackle the websites of state and local governments first, and then move on to those of private businesses? Will state and local governments have prescribed standards like WCAG 2.1 A/AA, and private businesses continue to have flexibility in that regard?
Without a crystal ball, we simply don’t know. What we recommend is that private and public entities continue to get ahead of these potential regulatory updates by ensuring their websites are fully accessible. If we can help craft a compliance strategy for your organization, or simply answer some questions to help, please contact us.