ADA Title II Updates: What to Know about the DOJ’s New Rule

By Jon Avila, Chief Accessibility Officer at Level Access

Note: This blog was originally published in August 2023 following the announcement of a Notice of Proposed Rulemaking (NPRM) from the U.S. Department of Justice (DOJ) regarding revisions to Title II of the Americans with Disabilities Act (ADA). The content has been updated to reflect the final rule, which has been submitted for publication.

For decades, digital accessibility advocates, and state and local governments and their agencies, have shared frustrations about the lack of detail provided in the Americans with Disabilities Act (ADA) when it comes to how to ensure the accessibility of digital experiences. That will now change, at least in part.

Yesterday, the U.S. Attorney General signed a final rule regarding the accessibility of digital experiences under Title II of the ADA, which dictates that state and local governments’ services, programs, and activities must conform with web accessibility standards and be accessible to people with disabilities. This rule was originally proposed in August of 2023 by the U.S. Department of Justice (DOJ) and marks a continuation of the DOJ’s longstanding efforts to clarify the ADA’s application to the digital world.

Unsure whether your organization will need to comply, or what standards you’ll need to meet? In this post, I’ll explain the DOJ’s new rule under Title II of the ADA, including what kinds of agencies and organizations will be impacted. I’ll also outline what compliance will mean, in practical terms, and provide recommendations for aligning with these requirements ahead of the DOJ’s deadlines.

What are the new regulations under Title II of the ADA?

The final rule, which will be officially published in the Federal Register, outlines specific accessibility requirements to ensure governments’ digital experiences are accessible to people with disabilities and therefore more inclusive for all constituents.

The new rule’s digital accessibility standards apply to state, local, and district government entities’ websites and mobile apps, and include digital documents (such as PDFs, word-processing documents, spreadsheets, and presentation files). The rule states that these digital assets and experiences need to conform with the Web Content Accessibility Guidelines (WCAG), Version 2.1, Levels A and AA. In addition, the rule applies to publicly available web content, including video and audio content and new social media posts.

However, the rule provides exceptions for some types of content, including unchanging, archived materials on a website.

The language of the final rule confirms that measuring WCAG conformance will require some flexibility, since digital content changes frequently and 100% conformance, at all times, may not be a readily achievable requirement. The rule outlines a limited number of circumstances in which public entities do not need to strictly adhere to WCAG, including cases in which conformance would place an undue burden on organizations, or fundamentally alter the nature of a digital experience. Additionally, a digital experience that does not conform with WCAG may still meet the rule’s requirements if WCAG violations have a “minimal impact on access,” meaning that people with disabilities can still use the experience as successfully as people without disabilities. Organizations may also provide alternative, accessible versions of inaccessible content, but only when technical or legal limitations prevent the content from being made accessible.

The essential WCAG checklist

Download now

What about content created by third parties?

To comply with the rule, governments need to ensure that all their web and mobile experiences are accessible, including digital experiences from third-party vendors and agencies. Specifically, the rule states that any digital content that a public entity “provides or makes available” to users must meet accessibility standards, whether this content is provided directly by the public entity (e.g., published to a government’s own website) or by a third-party organization as part of a contractual, licensing, or other agreement. For example, if a city government contracts with a third-party mobile app provider to collect parking payments, the mobile app must conform with WCAG 2.1 A and AA.

Why were these regulations made—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 new rule offers 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)

Who is impacted by this new rulemaking?

The rule applies 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 healthcare clinics
• State and local courts
• Public libraries

Organizations that sell technology such as education technology and web platforms into public entities 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 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 is a requirement.

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

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

Following the publication of the final rule in the Federal Register, public entities have either two or three years to ensure that their web content and mobile apps conform with WCAG 2.1 A and AA standards. Specific timelines for compliance vary based on organizations’ size, with extra time allotted 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

How will it be enforced? 

The new rule under 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.

How can state and local governments achieve compliance?

While the new rule does not outline specific methods for testing and remediating digital experiences, it indicates 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, a requirement of Title II of the ADA.

We recommend using a combination of automated testing tools and manual evaluation using assistive technologies, including evaluation by people with disabilities (seeking and incorporating feedback from people with disabilities is encouraged by the DOJ in its new rule). 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.

Five steps to digital accessibility for state and local governments

Get the guide

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

It is likely that the new rule under Title II of the ADA will be a blueprint for similar revisions to Title III of the ADA, which applies to private businesses as places of “public accommodations.” Since the mid-1990s, the DOJ has stated that the definition of places of public accommodations 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 would benefit from clarity in regulations under Title III, as this would reduce unexpected litigation for businesses while making sure consistent accessibility is provided to people with disabilities. However, the timing of any such proposed rulemaking may depend on many factors, including the outcome of the next federal election.

We’re here to help

As the market-leading digital accessibility solution provider, Level Access has decades of experience helping organizations achieve compliance with Title II and Title III of the ADA and other digital accessibility laws.

Our suite of solutions encompasses automated and manual accessibility testing—including testing performed by people with disabilities—along with supportive designer tools and extensive monitoring and governance capabilities, all delivered through a central, streamlined system of record: the Level Access Platform.

With our strategic consulting to support with procurement and accountability, and role-specific accessibility training to help teams build internal expertise, state and local governments can feel confident they’re not only working efficiently toward the DOJ’s mandated timelines for digital ADA compliance but also laying an accessible foundation for future digital development.

Ready to get on track to meet ADA compliance deadlines? Engage with our team today.

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.