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ADA Title II Web Accessibility Compliance Guide for States, Cities & Towns

David Gibson

DOJ Clarifies ADA Title II Regulations for State and Local Governments

On April 8, 2024, the Department of Justice (DOJ) formally established the Web Content Accessibility Guidelines (WCAG v 2.1 A, AA) as the accessibility standard for Title II of the Americans with Disabilities Act (ADA). The regulation aims to eliminate barriers that prevent people with disabilities from accessing vital state and local government services online, aligning with ongoing efforts to ensure digital inclusivity.

While this rule specifically applies to Title II, it signals what is likely to come for Title III, which covers private businesses and non-profit organizations. Though the DOJ has so far left Title III web accessibility compliance to the courts, which have largely endorsed the same set of standards as found here in Title II, this ruling suggests that formal Title III regulations may be on the horizon and the direction it will take.

This new federal rule comes at a time when many states are also focusing on digital accessibility at the local level. For example, Colorado recently passed HB21-1110, which mandates that all state websites and digital resources meet current WCAG accessibility standards. What is common for all state and federal accessibility laws is the common WCAG standards, and governments at every level increasingly prioritizing digital inclusion, it's clear that web accessibility is becoming a critical concern for public entities across the nation.

This post aims to distill the 320 pages of the final ruling into a digestible guide for states, cities, and towns and their many agencies and departments to understand what this new ruling means and how to comply with Title II of the ADA. In addition the the DOJ has also created this helpful ADA Fact Sheet

When Will It Take Effect?

The compliance dates for the new ADA Title II requirements depend on the size of the public entity:

  • Public entities with a population of 50,000 or more must comply within two years of the final rule's publication.
  • Public entities with a population of less than 50,000 and special district governments must comply within three years of the final rule's publication.

Who/What Does This Apply To?

The new ADA Title II requirements apply to a wide range of government entities, including:

  • State governments and their agencies, departments, and programs
  • County and municipal governments, including cities and towns
  • Special district governments, such as transit authorities and water districts
  • Public educational institutions, including school districts, community colleges, and universities

The requirements cover all digital content and services provided by these entities, including websites, mobile apps, web apps, digital kiosks, digital signage, electronic documents, and third party plugins and components.

Exceptions & Flexibility

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.

Third Parties
The responsibility for ensuring WCAG compliance extends to all content and features to include those provided by third parties. This means that if a state or local government uses a third-party service or plugin on its website, the government entity is responsible for ensuring that the service or plugin is accessible in line with WCAG 2.1 AA as well.

Benefits for Citizens

  • The new ADA Title II requirements will enable citizens with disabilities to access a wide range of government services and information online, such as:
  • Applying for benefits, licenses, and permits electronically
  • Accessing voter registration and election information
  • Participating in virtual public meetings and hearings
  • Utilizing online learning platforms and course materials in public schools and universities
  • Accessing emergency alerts and public health information online

Enforcement and Penalties for ADA Title II

Enforcement of ADA Title II and penalties can be categorized into three main actions, however as we’ve seen with Title III, the most common enforcement path is through lawsuits brought by plaintiffs with disabilities against entities that fail to meet accessibility standards.

  1. DOJ Reaction to Complaints by Citizens
    Citizens can file complaints directly with the U.S. Department of Justice (DOJ) if they believe a state or local government entity has violated their ADA rights. The DOJ reviews these complaints and decides whether to take further action, which might include initiating investigations and mediation or moving directly to litigation.

  2. DOJ Proactive Actions
    The DOJ can also proactively enforce ADA Title II by monitoring public entities and conducting its own investigations, independent of specific complaints. This might involve compliance reviews and audits of state and local government services and facilities to ensure they meet ADA standards. If non-compliance is identified, the DOJ can initiate legal actions to enforce compliance.

  3. Private Citizen Lawsuits
    Private citizens can file lawsuits directly against state and local government entities without first having to file a complaint with the DOJ. These lawsuits are a common mechanism for enforcing ADA compliance and can be more direct and faster than waiting for DOJ intervention as we’ve seen for many years.

    Qualification to Bring Suit
    Any individual with a disability affected by an alleged ADA violation can initiate a lawsuit. This includes any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

    Potential Damages
    In lawsuits under ADA Title II, plaintiffs generally seek injunctive relief, meaning the court orders the public entity to make the necessary changes to comply with the ADA. Monetary damages and compensation are not typically available under ADA Title II, except in cases where a specific state law allows for monetary damages. However, plaintiffs can recover attorney's fees, which can be a significant aspect of the remedy.


How to Comply with ADA Title II

The Challenges for State and Local Governments

Achieving ADA Title II compliance can be challenging for state and local governments due to the often-decentralized nature of their digital properties. Like a farmhouse (common metaphor here in Vermont) that has undergone numerous modifications and extensions over the years , government websites and digital content may be spread across multiple platforms and managed by various departments with little central oversight. This can lead to a lack of accessibility awareness, especially for smaller cities and towns and their sprawling departments.

The Process of Achieving Compliance for State and Local Municipalities

  1. Establish teams and owners: Assign responsibility for accessibility to specific individuals or teams within each department or agency.

  2. Create a plan: Develop a comprehensive accessibility plan that outlines goals, timelines, and resources needed. Look for ways to consolidate the number of different platforms wherever possible to streamline the compliance process. For example, for a city with parks and rec, library, city hall, etc establish a common platform such as Wordpress, and then use a common template theme that they all share. This consistency and centralized platform will make it much easier to establish and maintain accessibility compliance.

  3. Establish Funding: This cannot be an unfunded mandate. It will obviously require a new line item in the budget. But before you can establish the amount, you will need the plan and also the inventory and audit to grasp the scale and resources needed.

  4. Partner with Experts: Find qualified digital accessibility consultants who can assist with planning, budgeting, RFI/RFP development and assessing bidders for building, auditing, remediating, and monitoring.

  5. Inventory & Audit: Conduct a thorough inventory and audit of all digital properties, including websites, apps, and electronic documents. Understanding the limits of current software, such that automated auditing systems at best, can only detect ~30% of WCAG issue. This may come as a surprise - especially with AI. However currently, AI advertised is dumb AI and not generative. So make sure to have a trusted and qualified accessibility auditor conduct manual testing that includes screen reader testing using the top desktop and mobile screen readers.

    And do not use accessibility overlay widgets, plugins, or toolbars. Despite what claims are made, they simply do not work. (more)

  6. Establish priorities: Focus on the digital properties that have the greatest impact on citizens and those with the most serious accessibility barriers. It may be impossible to address everything at once, so prioritization is key.

  7. Rebuild or remediate: Decide whether to rebuild inaccessible digital properties from scratch or remediate existing content. This decision will depend on factors such as the age and complexity of the current properties and the resources available. Based on the state and municipal websites I’ve seen, I recommend a complete redesign based on a common platform and set of templates that all departments can share.

    UPDATE: April 24, 2024
    The DOJ has issued a "Small Entity Compliance Guide" on Title II.


How to Verify Title II Compliance

To verify compliance with the new ADA Title II requirements, public entities should:

  • Conduct regular accessibility audits using a combination of automated and manual testing
  • Engage with users with disabilities to gather feedback on the accessibility of digital properties
  • Maintain detailed documentation of accessibility efforts, including WCAG conformance reports


Maintaining Compliance

Achieving ADA Title II compliance is not a one-time effort. To maintain compliance over time, public entities should:

  • Provide ongoing accessibility training for all staff involved in designing, building and maintaining digital content
  • Conduct periodic accessibility audits to identify and address any new issues
  • Establish clear policies and procedures for ensuring accessibility is considered in all digital projects and procurements


Final Thoughts

The new ADA Title II requirements for web accessibility represent a significant step forward in ensuring equal access to government services and information for people with disabilities. By following the guidelines outlined in this compliance guide, state and local government entities can work towards meeting their legal obligations and creating a more inclusive digital environment for all citizens. While the process may seem daunting, the benefits of increased accessibility are well worth the effort, both in terms of legal compliance and in providing better service to the community.

As states like Colorado continue to pass their own accessibility laws, it's clear that digital inclusion is becoming an increasingly important priority at all levels of government. By working to meet both federal and state accessibility requirements, public entities can ensure that they are providing the best possible service to their constituents and promoting equal access for all. Furthermore, with the DOJ's recent Title II ruling, it's likely only a matter of time before similar regulations are introduced for Title III, making web accessibility a crucial consideration for businesses and non-profit organizations as well.


Disclaimer: I am not an attorney, and the content of this blog post is for informational purposes only and should not be considered legal advice. If you require legal assistance, please consult with a qualified attorney who can provide advice tailored to your specific circumstances.