On April 8th, the United States Department of Justice published a new rule under Title II of the Americans with Disabilities Act (ADA), strengthening the accessibility requirements for state and local government websites.
The final rule, signed by Attorney General Merrick B. Garland, clarifies the obligations of state and local governments to make their websites and mobile apps accessible. It emphasizes the importance of accessibility in accessing public programs and services, including emergency information, courts, healthcare providers, schools, voting information, parking, permit applications, tax payments, and transit updates.
This final rule marks the Justice Department’s latest effort to ensure that no person is denied access to government services, programs, or activities because of a disability. By issuing clear and consistent accessibility standards for state and local governments’ digital content, this rule advances the ADA’s promise of equal participation in society for people with disabilities.
Attorney General Merrick B. Garland
Official Press Release
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Key Information About the New Requirements
Why was this rule created?
Title II of the ADA states that no qualified individual with a disability shall, because of their disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity.
The Department of Justice has consistently made clear that Title II applies to all services, programs, and activities of public entities, including those provided via the web and mobile apps. However, until now, a clear technical standard has not been established for measuring if a website is sufficiently accessible under the ADA. Other laws around the world reference the Web Content Accessibility Guidelines (WCAG) as a technical standard for accessibility, but the ADA did not. As a result, this sometimes caused confusion for website managers and developers on how to determine if a website was ADA-compliant.
With this new rule, the Department of Justice 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.
During an open public comment period prior to the rule being published it was established that the rule was necessary both to ensure people with disabilities have equal access to government services on the web and also to help government employees and contractors better understand how to measure website accessibility.
The National Council on Disability, an independent Federal agency that advises the President, Congress, and other agencies about programs, policies, practices, and procedures affecting people with disabilities, has similarly emphasized the need for regulatory action on this issue. They have stated that relying on voluntary compliance has not resulted in accessible websites and regulatory action was needed.
Who does the rule apply to?
State and Local Governments
The rule applies to state and local government websites including, cities, counties, townships, U.S. territories, independent school districts, and other municipality types.
Special District Governments
The rule also applies to special district government websites. A special district government is a public entity—other than a county, municipality, township, or independent school district—authorized by State law to provide one function or a limited number of designated functions with sufficient administrative and fiscal autonomy to qualify as a separate government and whose population is not calculated by the United States Census Bureau in the most recent decennial Census or Small Area Income and Poverty Estimates.
Examples of Special Government Districts:
- Airport District
- Ambulance Districts
- Cemetery District
- Conservation Districts
- Housing Districts
- Library Districts
- Metropolitan Councils
- Mosquito Abatement Districts
- Park and Recreation Districts
- Sanitation Districts
- Transit Districts
- Water Districts
When is this rule effective?
The rule is effective June 24, 2024. Depending on the total population served by the government entity, two different timelines for website compliance exist.
The threshold for determining compliance deadlines is 50,000 people or more, as determined by US census data.
- A public entity, other than a special district government, with a total population of 50,000 must comply by April 24, 2026 (2 years).
- A public entity with a total population of less than 50,000 or any public entity that is a special district government must comply by April 26, 2027 (3 years).
What are the requirements for accessibility under the new rule?
Public entities must ensure that web content and mobile apps that they provide or make available (whether directly or through contractual, licensing, or other arrangements) are readily accessible to and usable by individuals with disabilities.
All web content, conventional electronic documents, and mobile apps must comply with all WCAG 2.1 Level A and Level AA success criteria unless they fall under an exception to the rule. (Learn more about WCAG conformance levels here.)
The Department of Justice emphasized that the examples provided in the definitions sections are not meant to be exhaustive. Other content beyond what is described below may be covered by this rule.
Definition of Web Content
Web content that is required to be accessible includes:
- Code or markup that defines the content’s structure, presentation, and interactions
- Text, images, sounds, videos, controls, and animations on websites/webpages
- Social media posts
- Conventional electronic documents.
Definition of Conventional Electronic Documents
“Conventional electronic documents” are defined as web content or content in mobile apps that is in the following electronic file formats:
- Portable document formats (PDFs)
- Word processor file formats
- Presentation file formats
- Spreadsheet file formats
The definition provides an long list of electronic file formats that constitute conventional electronic documents. Examples include: Adobe PDF files, Microsoft Word files, Apple Keynote or Microsoft PowerPoint files, and Microsoft Excel files, among others. For a full list of covered file formats see the rule PDF linked below.
Automated Captions May be Okay for Live Events
The rule requires public entities to provide captions on live videos, but the Department of Justice declined to prescribe captioning requirements beyond the WCAG 2.1 Level AA requirements, whether by specifying a numerical accuracy standard, a method of captioning that public entities must use to satisfy this success criterion, or other measures.
There is significant discussion in the rule about the lack of accuracy and often insufficiency of automated captions for people who are deaf. However, the Department recognizes the significant costs and supply challenges that can accompany the use of professional live-captioning services. They also noted concerns that a requirement to use live-captions for all events all the time could discourage public entities from conducting services, programs, or activities online, which could have unintended detrimental consequences for people with and without disabilities who benefit from online offerings.
As a result, the rule leaves the decision to provide automated or human-typed captions for live events up to the public entity.
Third-Party Web Content and Mobile Apps
Public entities are required to ensure the accessibility of content and platforms that are created for them by third-party vendors and contractors. The Department of Justice believes individuals with disabilities should not be excluded from these government services because the services are inaccessible and are being provided by third parties on behalf of a public entity, rather than being provided directly by the public entity.
As a result, there are no exceptions for websites or apps built by vendors, and public entities will need to consider accessibility during the procurement process carefully.
Exceptions to the Rule
There are five exceptions to the rule. Content that falls under one or more of the exceptions does not have to be made WCAG 2.1 AA conformation:
- Archived web content.
- 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.
- Content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity.
- Conventional electronic documents that are about a specific individual, their property, or their account and that are password-protected or otherwise secured
- Preexisting social media posts.
The Department of Justice allowed these exceptions because it believes that requiring public entities to make the particular content described in these categories accessible under all circumstances could be too burdensome at this time. They also want to make sure the funds are not diverted into making these items accessible when they would be better spent on accessibility of key web content and mobile apps.
There is no exception to the rule for web content only available to public entities’ employees.
Definition of “Archived Web Content”
Archived web content means web content that meets all of the following:
- Was created before the date the public entity is required to comply.
- Is retained exclusively for reference, research, or recordkeeping.
- Is not altered or updated after the date of archiving.
- Is organized and stored in a dedicated area or areas clearly identified as being archived.
Are there exceptions due to financial burden?
There are some exceptions for undue financial burdens, especially for small public entities.
If a public entity believes that a proposed action would fundamentally alter a service, program, or activity or would result in undue financial and administrative burdens, the public entity has the burden of proving that compliance would result in such an alteration or such burdens.
The decision that compliance would result in such an alteration or such burdens must be made by the head of the 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.
Entities may need to make content covered by an exception accessible upon request.
The final rule states that though public entities do not have to make excepted content accessible by the compliance deadline, they may still have to do so upon request. Here is a specific example provided in the rule:
Archived town meeting minutes from 2011 might be covered by an exception from the requirement to conform to WCAG 2.1 Level AA. However, if a person with low vision requests an accessible version, then the town would still need to address the person’s request under its existing effective communication obligations in 28 CFR 35.160.
The way that the town does this could vary based on the facts. For example, in some circumstances, providing a large-print version of the minutes might satisfy the town’s obligations, and in other circumstances it might need to provide an electronic version that conforms to the aspects of WCAG 2.1 Level AA relevant to the person’s particular access needs.
Can we just make a separate accessible website?
No. Though WCAG does sometimes all for accessible alternatives, the Department of Justice is concerned that having accessible alternatives will result in a “segregated approach and a worse experience for individuals with disabilities.” They are also worried that it will increase the maintenance burden for public entities.
For these reasons, conforming alternate versions are permissible only when it is not possible to make web content directly accessible due to technical or legal limitations.
Expected Financial Implications
The Department of Justice researched and discussed the anticipated cost of the rule. There are two different costs that they anticipate:
- Initial costs to become compliant in the first three years.
- Annually recurring costs to maintain compliance on an ongoing basis.
They anticipate the initial cost of compliance will be $16.9 billion. Annualized costs over a 10-year period are estimated at $3.3-3.5 billion.
The benefits to people with disabilities far outweigh the costs to public entities of becoming and maintaining accessibility. Annual benefits, beginning once the rule is fully implemented, in time savings and educational attainement total $5.3 billion.
The Final Rule PDF, found below, has tables showing the anticipated costs and benefits by entity type.
Implications for WordPress Developers
If you or your agency builds websites for state and local government entities and are not already delivering accessible websites, you will need to change your processes and tools to ensure compliance.
Audit Your Starter
If you have not already done so, you should perform a full accessibility audit on your starter theme and core plugin set. You likely also want to audit at least one or two recently completed websites. This will provide you with an understanding of what needs to be fixed or changed in your starter and dev/design practices to set you up for delivering accessible websites moving forward.
If you are unfamiliar with accessibility testing, see our recent article, Easy Accessibility Testing: You Don’t Have to be an Expert to Test Your Website for Accessibility, for four steps to check if a website has accessibility problems. Equalize Digital also partners with WordPress agencies, providing an accessibility team for audits, remediation, and user testing that you can bring into any project. Learn more about how we help agencies deliver accessible websites.
Add Accessibility Checker to Your Tool Set
Equalize Digital Accessibility Checker is an automated accessibility scanning plugin that helps your WordPress website become and stay accessible. It is the easiest way to start testing the websites you build for many accessibility problems – and requires only a click of a button.
When you install the Accessibility Checker plugin on your website, it dynamically scans and reports on the accessibility status in real-time as content, themes, and plugins are updated. With reports native to the WordPress admin, Accessibility Checker fits into your existing processes and offers numerous powerful features to help individuals and teams maintain accessibility standards across virtually any WordPress site.
The plugin is used by NASA, The U.S. Department of Veterans Affairs, and numerous state and local government websites.
Accessibility Can Grow Revenue
Over the next 2-3 years, we anticipate seeing an increase in public entities seeking support in auditing, remediating, and potentially completely rebuilding their websites. This is a sales opportunity that WordPress developers and agencies familiar with accessibility and WCAG conformance can leverage to grow revenue while having a positive impact on the internet as a whole.
If you haven’t yet thought about building accessibility into your website design and development process, now is the time to get started! Let’s talk about how we can help.
Implications for WordPress Plugins
As discussed above, this rule has no exceptions for third-party content or software that public entities purchase. This is an increasing trend that we see with many web accessibility laws around the world, including the ADA, Section 508, and European Accessibility Act, among others.
WordPress plugin developers should expect to see an increase in requests for accessibility fixes or features. Additionally, plugins that do not prioritize accessibility will likely see increased churn as public entities and others turn to more accessible alternatives.
If you want the biggest market for your WordPress plugin, it needs to have accessible front-end output and accessible admin interfaces. If you expect government websites to use your plugin or know that they are already part of your customer base, now is the time to get it fully accessibility audited by a trained professional and make fixes.
You should also consider investing in a VPAT, as many public entities require it in procurement.
Read the Full Text of the Final Rule
If you would like to read the text of the final rule yourself, here is the PDF from the Department of Justice.
You can obtain copies of this rule in an alternative format by calling the ADA Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY). This rule is also available on ada.gov.
