On August 4, 2023, the U.S. Department of Justice (“DOJ”) published in the Federal Register a Notice of Proposed Rulemaking (“NPRM”) on Accessibility of Web Information and Services of State and Local Government Entities. The new rules will have a great impact on public entities, including all public colleges and universities, and will likely be the blueprint for Section 504 regulations on website accessibility affecting private colleges, health care providers, and other recipients of federal financial assistance. Comments were due October 3, 2023, and final regulations could be issued within three to six months. While the rule would not directly affect private businesses, plaintiff’s attorneys and courts are likely to cite and rely on the rule in website accessibility claims under ADA Title III against places of public accommodations.
The proposed rules require that all content on all websites and mobile applications used by any public entity for the delivery of any of its programs and services be accessible, unless an exception applies. This includes all mobile apps used by public entities directly to provide or support its services, programs, or activities, as well as websites or apps of third parties in providing services, programs or activities. For example, a city that uses the Parkmobile app for paid street parking would be required to ensure the Parkmobile app is accessible.
The DOJ proposed the following seven exceptions:
- Archived web content – This includes web content that (1) is maintained exclusively for reference, research, or recordkeeping; (2) is not altered or updated after the date of archiving; and (3) is organized and stored in a dedicated area or areas clearly identified as being archived.
- Preexisting conventional electronic documents – This includes documents in PDF, word processor file, presentation file, spreadsheet file, or database file formats. The exception does not apply to documents currently used by members of the public to apply for, gain access to, or participate in a public entity’s services, programs or activities.
- Web content posted by third parties on a public entity’s website – This includes content for which the public entity has no control, such as public comments on a message board or filings made in court. If the public entity chooses to post third-party content on its website, or as part of its services, programs or activities (e.g., calendars, scheduling tools, maps, reservation systems, or payment systems developed by an outside technology company), they must be accessible.
- Third-party web content linked from a public entity’s website – This includes links as a benefit to constituents, e.g., a college providing links to a nearby business. If the links are part of the entity’s own programs, services, or activities, they must be accessible.
- Course content on a public entity’s password-protected or secured website for admitted students enrolled in a specific course offered by a public postsecondary institution.
- Course content on a public entity’s password-protected or secured website for students enrolled, or parents of students enrolled, in a specific course at a public elementary or secondary school – In exceptions five and six, the DOJ proposes that in classes where students are enrolled and the course content is limited to those in the course, none of the content needs to be accessible until there is a student with a disability that needs content in an accessible format. However, once a student needs accessible content, all web content in that class must be made accessible within five days.
- Conventional electronic documents that are about a specific individual, their property, or their account that are password protected or otherwise secured – Examples might include a public hospital portal for a patient’s own information, or a customer’s utility account for payment.
The DOJ proposed using the WCAG 2.1, Level AA standard for accessibility conformance.
From the time final regulations are published, large entities have two years to comply, whereas small entities and special purpose districts have three years to comply. A large entity is one that has a population of 50,000 or more, as measured by U.S. Census data. Coverage is typically determined by the population of the parent entity, e.g., if a community college is considered a county entity, the population is measured by the population of the county. Similarly, most four-year colleges would be considered entities of the state, thus the population is measured by the state.
The DOJ recognizes the difficulty of measuring compliance due to the dynamic nature of web content and mobile apps. The DOJ is not inclined to set a numeric level of “compliance” (e.g., 95% or 97%). Instead, the DOJ is currently presenting possible approaches to defining and measuring compliance, including (1) a provision that would require a public entity to demonstrate that any nonconformance did not have a meaningful effect; (2) demonstrating compliance by establishing and following policies and practices for accessibility feedback, testing, and remediation; and (3) demonstrating compliance by showing organizational maturity, i.e., that the organization has a sufficiently robust program for web and mobile app accessibility.
The comment period for the proposed rule ended October 3, 2023. Final regulations could be issued within 3-6 months. Based upon past rulemakings there will be some modifications, but it is unlikely that there will be changes on the key concepts. Everyone involved in digital accessibility issues for public and private entities should read this proposed rule, and understand that, subject to the 2024 presidential election results, mandates are likely to come much sooner than later.
Saul Ewing will keep you posted once these proposed regulations are finalized, but we stand ready in the meantime to answer any questions regarding this sweeping update on website accessibility.