By Michael W. Lewis

May 2, 2024

Under Title II of the Americans with Disabilities Act (“ADA”), no qualified individual with a disability shall be excluded from participation in, or denied the benefits of, the services, programs, or activities of a State or local government entity. The Department of Justice (“Department”) has consistently provided that the nondiscrimination requirements of Title II apply to all services, programs, and activities of public entities, including those provided via the web and mobile applications.

Public entities are increasingly providing the public access to government services through their web content and mobile apps, including applying for State benefits, renewing State-issued identification, and paying fines, all of which provide added convenience and reduce the need to wait in line or be placed on hold. However, State and local government entities’ web- and mobile app-based services tend to have shortcomings that result in unequal access for individuals with disabilities.

Earlier this month, the Department issued its final rule, which establishes specific requirements and technical standards for making services, programs, and activities offered by State and local government entities accessible to the public through the web and mobile applications. In this rule, the Department establishes technical standards for web content and 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. The Department has adopted the Web Content Accessibility Guidelines (“WCAG”), published in 2018, as the technical standard for web content and mobile app accessibility under Title II of the ADA, and will require that public entities comply with the WCAG 2.1 Level AA success criteria and conformance requirements.

The rule also provides for five specific exceptions from compliance with the required technical standards: (1) archived web content; (2) preexisting conventional electronic documents, unless currently used to apply for, gain access to, or participate in the public entity’s 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 that are password-protected or otherwise secured; and (5) preexisting social media posts. If one of these exceptions applies, the public entity’s web content or content in mobile apps would not need to comply with the rule’s technical standard. The Department developed 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, and may divert important resources from making accessible key web content and mobile apps that public entities provide or make available.

It is critical to ensure that individuals with disabilities can access important web content and mobile apps quickly, easily, and equally, and the Department’s rule helps to make this possible. By allowing individuals with disabilities to engage more fully with their governments, accessible web content and mobile apps also promote the equal enjoyment of fundamental constitutional rights, such as rights concerning speech, assembly, association, petitioning, voting, and due process of law. The Department believes, through the reinforcement of public comment, that the requirements provided in this rule are necessary to ensure “equality of opportunity, full participation, independent living, and economic self-sufficiency” for individuals with disabilities, as outlined in the ADA.

A public entity, other than a special district government, with a total population of 50,000 or more shall begin complying with this rule beginning two years after the date of publication in the Federal Register. A public entity with a total population of less than 50,000, or any public entity that is a special district government, shall begin to comply with this rule beginning three years after publication in the Federal Register.

Should you have any questions regarding the new ADA requirements, please do not hesitate to contact William Zee or any of the attorneys in the Appel, Yost & Zee Education Law Group.