Digital Accessibility: Related Law & Policy

1990

The Americans with Disabilities Act (ADA), a comprehensive civil rights law prohibiting discrimination on the basis of disability, was signed into law.

Title II of the ADA applies to State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. 794 (“section 504”), to all activities of State and local government entities, regardless of whether the entities receive Federal financial assistance.

1996

The Department articulated its interpretation that the ADA applies to websites of covered entities, and has since reiterated this interpretation in a variety of online contexts. Title II of the ADA also applies when public entities use mobile apps to offer their services, programs, or activities.

The Department of Justice issues its final rule revising the regulation implementing title II of the Americans with Disabilities Act (“ADA”) to establish specific requirements, including the adoption of specific technical standards, for making accessible the services, programs, and activities offered by State and local government entities to the public through the web and mobile applications (“apps”).

In this rule, the Department establishes technical standards for web content and mobile app accessibility to give public entities greater clarity in exactly how to meet their ADA obligations and to help ensure equal access to government services for individuals with disabilities.

In this final rule, the Department adds a new subpart H to the title II ADA regulation, 28 CFR part 35, that 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.

A public entity shall ensure that the following are readily accessible to and usable by individuals with disabilities:

1. Web content that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements; and
2. Mobile apps that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements.

Beginning two or three years (based on population) after the publication of this rule in final form, a public entity shall ensure that the web content and mobile apps that the public entity provides or makes available, directly or through contractual, licensing, or other arrangements, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

The rule was published in the Federal Register on April 24, 2024.

Compliance dates are staggered according to the total population of public entities (based on the latest census data). After the compliance date, ongoing compliance with this final rule is required.

• Population of 50,000 or more: April 26, 2027
• Population below 50,000: April 26, 2028
• Special district governments: April 26, 2028
• North Carolina state government agencies, including NCDPI: April 26, 2027

For purposes of the rule, a city school district generally uses the population of the city, and a county school district generally uses the population of the county. Questions concerning the status or deadline of a particular PSU should be directed to the PSU’s legal counsel.

North Carolina PSUs: Compliance Start Dates

A charter school’s compliance start date for the ADA Title II rule aligns with the earliest compliance date of the Public School Unit (PSU) from which its students are served.

To help illustrate how the ADA title II rule requirements apply within educational settings, a series of practical scenarios are available for PSUs to review.

These scenarios are designed to offer guidance and insights into real-world applications of ADA title II for digital content. However, they are for informational purposes only and should not be considered legal advice.

Exceptions

There are limited exceptions from compliance with the technical standard required under § 35.200.

1. Archived web content 
2. Preexisting conventional electronic documents, unless such documents are currently used to apply for, gain access to, or participate in the public entity’s services, programs, or activities
3. Content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity
4. Conventional electronic documents that are about a specific individual, their property, or their account and that are password-protected or otherwise secured;
5. Preexisting social media posts

If one of these exceptions applies, then the public entity’s web content or content in mobile apps that is covered by an exception would not need to comply with the rule’s technical standard. 

Fundamental alteration or undue burden

Conformance to WCAG 2.1 Level AA is not required under title II of the ADA to the extent that such conformance would result in a fundamental alteration in the nature of a service, program, or activity of the public entity or in undue financial and administrative burdens.

In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with § 35.200 would result in such alteration or burdens.

The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or their designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion.

If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity to the maximum extent possible.

See the full text of the rule for details.

Archived web content

Web content that

1. Was created before the date the public entity is required to comply with this rule, reproduces paper documents created before the date the public entity is required to comply with this rule, or reproduces the contents of other physical media created before the date the public entity is required to comply with this rule;
2. Is retained exclusively for reference, research, or recordkeeping;
3. Is not altered or updated after the date of archiving; and
4. Is organized and stored in a dedicated area or areas clearly identified as being archived

The definition is meant to capture historic web content that, while outdated or superfluous, is maintained unaltered in a dedicated archived area for reference, research, or recordkeeping.

Conforming alternate version

A separate version of web content that is accessible, up to date, contains the same information and functionality as the inaccessible web content, and can be reached in particular ways, such as through a conforming page or an accessibility-supported mechanism.

Conforming alternate versions are permissible only when it is not possible to make web content directly accessible due to technical or legal limitations.

Conventional electronic documents

Web content or content in mobile apps that is in the following electronic file formats: portable document formats (“PDF”), word processor file formats, presentation file formats, and spreadsheet file formats.

Mobile applications (apps)

Software applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets.

Total population

1. If a public entity has a population calculated by the United States Census Bureau in the most recent decennial Census, the population estimate for that public entity as calculated by the United States Census Bureau in the most recent decennial Census; or
2. If a public entity is an independent school district, or an instrumentality of an independent school district, the population estimate for the independent school district as calculated by the United States Census Bureau in the most recent Small Area Income and Poverty Estimates;

User agent

Any software that retrieves and presents web content for users.

Web content

Defined by § 35.104 to mean the information and sensory experience to be communicated to the user by means of a user agent (e.g., a web browser), including code or markup that defines the content’s structure, presentation, and interactions. This includes text, images, sounds, videos, controls, animations, and conventional electronic documents.

WCAG

Web Content Accessibility Guidelines (WCAG) is an internationally recognized accessibility standard for web access. WCAG version 1.0 was published in 1999.

Web Content Accessibility Guidelines (WCAG) 2.1 was published in June 2018, and is now the technical standard for web content and mobile app accessibility under title II of the ADA.

There are three levels of success criteria for WCAG: Levels A, AA, and AAA. Each level builds from the previous level. The technical standard for web content and mobile app accessibility under title II of the ADA is Level AA.

To the extent there are differences between WCAG 2.1 Level AA and the standards articulated in this rule, the standards articulated in this rule prevail.

Justice Department to Publish Final Rule to Strengthen Web and Mobile App Access for People with Disabilities

Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities

Fact Sheet: New Rule on the Accessibility of Web Content and Mobile Apps Provided by State and Local Governments | ADA.gov

RULEMAKING DOCKET  Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities

Frequently asked questions about the ADA title II regulatory rule and answers for PSUs.

The recently updated HHS Section 504 regulatory rule provides clearer guidance on digital accessibility requirements, closely aligning with the ADA Title II rule while introducing some important distinctions. Below are the key details:

• Who Is Covered:
  Any entity receiving federal financial assistance through the Department of Health and Human Services must comply with the Section 504 rule. This may include public schools and state education agencies. Seek legal guidance for determination.
• Technical Standards:
  The Section 504 rule requires compliance with WCAG 2.1 AA, the same technical standard specified in the ADA Title II rule. This standard provides detailed guidelines for ensuring digital content is accessible to people with disabilities.
• Scope of Content:
  • ADA Title II applies to web content and mobile applications that a public entity provides or makes available, including content and applications provided through contractual, licensing, or other arrangements. The rule is not limited to a public-facing homepage. It may include student, family, employee, instructional, administrative, and vendor-provided digital services when they are part of the public entity’s programs, services, or activities. Limited exceptions are addressed separately in the rule. The Section 504 rule applies to both external-facing and internal-facing content. This includes materials used by employees, staff, and students within the organization.
  • Internal-facing content might include learning management systems, internal training resources, and employee intranets.
• Exceptions:
  Section 504 includes similar exceptions to the ADA Title II rule, such as undue burden or fundamental alteration. These exceptions must be documented thoroughly when claimed.
• Compliance Start Dates:
  • Compliance timelines are determined by the population served:
    • May 11, 2027, for HHS funding recipients with 15 or more employees.
    • May 10, 2028, for HHS funding recipients with fewer than 15 employees.
  • These dates align closely with, but are slightly later than, those in the ADA Title II rule (April 2027/2028).