ADA Title II Updates: What to Know about the DOJ's Proposed Revisions

This blog was contributed by Level Access’s Chief Accessibility Officer, Jon Avila.

The Massachusetts state capitol building shown at a slight angle, with a white flag flying in front of it.

For decades, digital accessibility advocates have shared frustrations about the lack of detail provided in the Americans with Disabilities Act (ADA) when it comes to the accessibility of digital experiences. This year, we learned that’s likely to change, at least in part.

In late July 2023, the Department of Justice (DOJ) announced a Notice of Proposed Rulemaking (NPRM) regarding the accessibility of digital experiences under Title II of the ADA, which dictates that state and local governments’ services, programs, and activities must be accessible to people with disabilities.

Unsure about whether your organization will need to comply? Curious about what standards are being enforced, and how? We’ve got answers. In this post, we’ll explain the rule the DOJ is proposing under Title II of the ADA, discuss what kinds of agencies and organizations will be impacted, and outline what compliance will mean, in practical terms. We’ll also offer best practices you can adopt today to ensure compliance well ahead of the DOJ’s proposed deadlines.

What are the newly proposed regulations under Title II of the ADA?

The NPRM, officially published in the Federal Register on August 4, is essentially a draft of a new rule under Title II that would outline specific accessibility requirements to ensure governments’ digital experiences are accessible to people with disabilities and therefore more inclusive for all constituents.

The web accessibility standards that are being proposed apply to state, local, and district government entities’ websites, mobile apps, and digital documents (such as PDFs, word-processing documents, spreadsheets, and presentation files). The rule states that these digital assets and experiences will need to conform with the Web Content Accessibility Guidelines (WCAG), Version 2.1, Levels A and AA. In addition, the rule will apply to publicly available content accessed via the web, including:

Video and Audio
Social media posts
Third party experiences a public entity chooses to use to provide services

The proposal provides exceptions for some types of content, including unchanging, archived materials on a website.

How WCAG conformance will be measured has not yet been finalized. It will certainly require some flexibility, since digital content changes frequently and 100% conformance, at all times, may not be a reasonable requirement. We expect the DOJ to release a framework that will ensure full and equal access for people with disabilities while establishing achievable compliance standards for organizations.

Who will be impacted by this new rulemaking?

The proposed rule will apply to state, local, and other special or district governments, encompassing all government agencies, services, and organizations, as well as organizations they’ve contracted to run programs on their behalf. The DOJ calls these institutions public entities. Other public entities include:

Public schools, community colleges, and public universities
Public hospitals and public health-care clinics
State and local courts
Public libraries

Organizations who sell technology into public entities such as education technology and web platforms, such as payment and other platforms used to deliver services by public entities, will also need to make sure their products are accessible. While vendors may not directly have to comply with the new rule’s requirements, the public entity—their buyer—does. And with this new rule in place, they will need to tighten their procurement requirements to ensure all purchased products and services conform with WCAG 2.1 A and AA. So, if you want to sell into this market, following these web accessibility standards will be a requirement.

Check out this fact sheet from the DOJ for a more in-depth list of impacted organizations and services.

When will the proposed rule take effect? And what are the proposed compliance deadlines?

Following the publication of the NPRM, the DOJ is allowing a 60-day comment period to gather public feedback and input on the proposed rule. But it’s unclear how soon following that feedback period a final rule will be adopted. In terms of a timeline for compliance, the NPRM offers extra time to smaller public entities. The requirements are as follows:

Public entity with a total population of 50,000 or more: compliance within two years of the publication of the final rule.
Public entity with a total population of less than 50,000: compliance within three years of the publication of the final rule.
All special district governments: compliance within three years of the publication of the final rule.

Hypothetically, this means that if the final rule is published in 2024, public entities with a population of 50,000 or more will need to comply by 2026, and those with a population of less than 50,000 will need to comply by 2027.

How will it be enforced?

The revision to Title II of the ADA does not propose any new enforcement mechanisms. Instead, the DOJ can take existing enforcement actions such as filing lawsuits in federal court, administrative actions, or entering into settlement agreements with state and local government entities.

Why were these changes proposed—and why now?

According to the DOJ, the proposed updates to ADA Title II address the fact that many state and local governments now provide most of their services, programs, and activities online and via mobile apps. This development has increased the risk that people with disabilities encounter barriers to accessing essential services, as well as barriers to participating in essential civic activities—like attending a town meeting, or even voting.

In addition, both public entities and private businesses are facing mounting legal action surrounding the inaccessibility of digital experiences and content, with many lawsuits and demand letters alleging non-compliance with the ADA. As a result, many organizations have sought clarity from the federal government over what ADA compliance means, practically, when it comes to digital experiences. The DOJ’s proposed rulemaking aims to offer that clarity by providing documented technical standards (WCAG 2.1 A and AA) against which to measure compliance.

“We will continue to use every tool that we have, including our enforcement authority, to ensure that people with disabilities are not treated like second class citizens when it comes to online services.”

— Associate Attorney General Vanita Gupta (justice.gov)

How can state and local governments prepare for compliance?

The NPRM makes it clear that, in order to ensure compliance, both automated testing and manual testing are necessary to find accessibility issues for remediation in existing content and to identify accessibility issues to avoid before launching new digital content. The DOJ does not specify which tools, specifically, need to be used to facilitate this testing, but it does indicate the goal is to make sure digital experiences meet the WCAG 2.1 web accessibility standards and that digital content is accessible, providing effective communication to people with disabilities.

We recommend using a combination of automated testing tools and manual evaluation using assistive technologies, including evaluation by people with disabilities. Now is probably also the right time to secure tooling and training for embedding digital accessibility best practices in all content development processes, from content authoring to UX and UI design. In addition, given the large volume of sites, apps, documents, and experiences a public entity of any size is likely to have in its digital portfolio, procuring an accessibility management platform where remediation progress and accessibility status can be monitored and tracked over time will be essential to ensuring compliance within either the two- or three-year time frames the DOJ has proposed.

Will these updates to Title II of the ADA also impact private businesses, eventually?

It is very likely that the new rule proposed under Title II of the ADA will be a blueprint for similar revisions to Title III of the ADA, which applies to the “places of public accommodation” provided by private businesses. Since the mid-1990s, the DOJ has stated that the definition of “places of public accommodation” includes company websites, e-commerce platforms, and other digital experiences, and many U.S. courts have agreed, ruling in favor of plaintiffs who allege a company or organization’s website is inaccessible to people with disabilities. At Level Access, our position is that both businesses and people with disabilities benefit from clarity in regulations as this would reduce unexpected litigation for businesses, while making sure consistent accessibility is provided to people with disabilities.

When, exactly, an NPRM may be published under Title III will likely depend on the timing of the roll-out of Title II rulemaking, and may also depend on the outcome of the next federal election.

About Jon Avila

Jonathan Avila (CPWA) is the Chief Accessibility Officer at Level Access. He has invested two decades in the digital accessibility field guiding organizations to create inclusive experiences that are usable to a wide range of people with disabilities. Through this work, he has supported accessibility across many different environments including web, mobile, documentation, extended reality, kiosk, and gaming, to empower people with disabilities to live their best lives. Jonathan is a member of the Accessibility Guidelines Working Group of the World Wide Web Consortium and the International Association of Accessibility Professionals. At Level Access, he focuses his time on testing methodology, thought leadership, and internal accessibility program policy to grow and sustain the company’s implementation of an inclusive workplace.

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ADA Title II Updates: What to Know about the DOJ’s Proposed Revisions