Recently, the Department of Justice (DOJ) promulgated new rules regarding Americans with Disabilities Act (ADA) compliance for web content and mobile applications of state and local governments and special purpose districts (public entities). These new rules are designed to help ensure that people with disabilities have access to state and local governments’ services, programs, and activities that are available on those governments’ websites and mobile apps. The new rules provide clarity regarding what public entities must do to comply with the updated Web Content Accessibility Guidelines (WCAG) now required under the ADA. For those public entities which are not currently in compliance with the prior WCAG standards, these new rules will require more drastic and significant changes to attain compliance.
All state and local governments and special purpose districts are covered by the ADA under Title II. Title II also extends to third-parties that contract with public entities to provide public services. Under the new rules, public entities must ensure that their web content and mobile applications meet the technical standards contained in WCAG Version 2.1, Level AA, with limited exceptions. While public entities are not generally responsible for ensuring that truly unaffiliated third-party content complies with these standards, the same is not true when a third-party posts content due to contractual, licensing, or other arrangements with a public entity. Consequently, public entities must ensure that the following complies with the new accessibility requirements:
- Content posted to a public entity’s website or mobile app by a third-party as part of an arrangement with that public entity;
- Linked third-party content provided by the public entity directly or through an arrangement with that third-party;
- Third-party websites linked on a public entity’s website or mobile app when the public entity has a contractual, licensing, or other arrangement with the website to provide or make available content; and
- Third-party external mobile apps that a public entity provides or makes available through an arrangement with the third-party app owner, including apps used in a public entity’s election, even if the public entity does not create or own the mobile app.
For example, if a public hospital district allows the public to pay for medical bills using a third-party website, the district would be responsible for ensuring that such website complies with the new rules. Similarly, if members of the public used an external mobile app to pay for parking in a city, the city would be responsible for ensuring that the parking app complies with the new rules. However, if a county provides a link to a private hotel’s website on the county’s tourist information website, the county would only need to ensure that the link on its own website complies with the new rules, but would not be required to ensure that the hotel’s website is in compliance because the hotel website is private and not provided on behalf of the public entity due to some arrangement.
Additionally, while the new rules allow for conforming alternate versions of web content and mobile apps in limited circumstances, such alternatives are generally discouraged unless it is not feasible to make the primary content accessible. When alternate versions are used, they must meet WCAG 2.1 Level AA standards and be easily accessible, equivalent in functionality, and kept up to date with the primary version. The emphasis remains on ensuring that the primary content is accessible whenever possible.
Previously, Title II entities only needed to broadly ensure accessibility of their web content and mobile applications, with no other specific standards strictly applied under the ADA. In contrast, WCAG Version 2.1, Level AA includes many specific standards, however, it generally requires that all Title II entity web content and mobile applications adhere to its “Principles for Accessibility.” These principles require that web content and mobile applications be perceivable, operable, understandable, and robust:
- Perceivable means that information must be presented in ways that all users can perceive. For example, a city webpage would need to provide captions, descriptions for images, and not use color as the only visual means to convey information.
- Operable means that the user interface must be functional for all users. For example, a public hospital district website would need to permit users to turn off any time limits or control web content that moves, blinks, or scrolls.
- Understandable means that the information and user interface must be easy for all users to understand. For example, a police department mobile app would need to provide a mechanism to identify specific definitions of words or phrased used in an unusual way.
- Robust means that content must be robust enough that it can be interpreted reliably by a wide variety of users, including those using assistive technologies.
These principles, in addition to the specific technical standards set out in WCAG Version 2.1, Level AA, will likely require many state and local governments and special purpose districts, as well as other entities that contract with them to provide public services, to undertake overhauls of their websites and mobile applications.
State and local governments with populations of 50,000 or more will need to comply with the new rules by April 24, 2026, while state and local governments with populations of less than 50,000 and special purpose districts will need to comply by April 26, 2027, which represents a more extended timeline due to resource constraints these entities may face in implementing the new standards. The DOJ made clear in its final rule that it intends to vigorously enforce these new standards to ensure compliance and equitable access for individuals with disabilities. Historically, the DOJ consistently used its enforcement authority to address accessibility under the ADA, even in the absence of specific technical standards. While it is too soon to know to what extent the DOJ will actually enforce these new rules, the clarity provided by the new rules will likely enhance DOJ’s ability to enforce compliance.
Recommendations:
- Work with your city attorney, communications, IT, and web development teams to evaluate your city’s websites and mobile applications against the updated standards. Ogden Murphy Wallace is able to complete an initial assessment and provide a report to the City which will outline likely areas of non-compliance.
- Create timeline for budgeting and implementation of redesign of the City’s websites and mobile applications in light of the compliance deadlines outlined above.
- Evaluate all contracts and agreements with all contractors who provide public services and gain an understanding of when new requirements related to their website/mobile app compliance can be added to their agreements and when they can be notified in advance.
This summary is a broad overview of a complex topic, and it does not constitute legal advice. If you have any questions, please contact krobertson@omwlaw.com or any other member of the Ogden Murphy Wallace, P.L.L.C. Municipal Law Group.
