Recently, we have seen significant movement in Federal policy on web and digital accessibility. Specifically, Title II of the Americans with Disabilities Act (ADA), which is enforced by the Department of Justice, and Section 504 of the Rehabilitation Act, as implemented by the Federal Department of Health and Human Services (HHS), now include specific accessibility requirements for websites, mobile apps, and kiosks (more on kiosks later). They both include specific standards, implementation timelines, and some notable exceptions. These two updates represent a huge step forward in protecting the civil rights of individuals who require digital accessibility.
Which Entities Does This Impact?
Title II of the ADA applies to state and local government entities. This includes state agencies, public primary and secondary schools, public higher education institutions, and public districts, authorities, boards, and commissions.
Section 504 applies to entities that receive federal funds. Under HHS, recipients include “Federally funded health and human services programs, such as hospitals, health care providers participating in CHIP and Medicaid programs, state and local human or social service agencies, and nursing homes.” The recent changes to Section 504 cover much more than the web and digital accessibility requirements that we will highlight.
Generally, the agencies that implement the ADA and Section 504 work to ensure that they closely mirror one another. That is true of these two rules, with some exceptions due to the different entities that must follow them.
Learn more about the ADA and learn more about Section 504.
What’s New?
In the digital accessibility context, a fair amount. The rules set much more specific expectations for covered entities and provide clarity regarding the types of digital products that must be accessible.
Web Accessibility Standards
Both refer to the Web Content Accessibility Guidelines 2.1, Level AA, as the required technical standards. In response to the draft ADA Title II regulations, WebAIM encouraged the Department of Justice to move to WCAG 2.2 if these standards were finalized before the final rule. Other advocates did the same for Section 504. With either a two or three-year timeline to implement, as explained below, referring to the latest standard would have positioned entities and vendors they purchase from to meet the newer standards. We are concerned that this will establish WCAG 2.1 as a default standard when a more complete standard exists. Despite the final rule, we encourage entities to establish WCAG 2.2 as their internal standard to ensure the most accessible experience for people with disabilities.
Technologies Covered
Both laws apply WCAG 2.1 to most web content, conventional electronic documents (Word, PDF, etc.), and mobile applications. Social media is also addressed. We will detail exceptions in each rule a bit further down.
Kiosks
Section 504, however, specifically includes kiosks, though it does not provide standards or guidelines about the functionality required to support people with disabilities. Title II omits a specific mention of kiosks. The Department of Justice notes that the list of technologies its rule applies to is not comprehensive and that the fact that there is no widely accepted technical standard justifies not referring to kiosks. While not addressed specifically as in Section 504, the Department notes that not including kiosks in the new Rule does not remove entities’ obligation to provide equity in access to their programs, services, and activities. This demonstrates that accessibility still must be a factor when selecting a kiosk.
Third-party Products
Both rules require that most technology an entity “provides or makes available, directly or through contractual, licensing, or other arrangements” must conform with WCAG 2.1 AA. Third-party tools, platforms, and content an entity purchases or uses fall into this category. While covered entities may not be able to directly make these products accessible, their purchase and use decisions must account for accessibility. Entities should account for this in formal and informal processes.
Conformance Timelines
The Section 504 rule sets conformance deadlines based on the entity’s number of employees. Title II sets this based on the population recorded in census data. The deadlines are:
- Section 504 sets a deadline of May 11, 2026, for entities with fifteen or more employees.
- Section 504 sets a deadline of May 11, 2027, for entities with fewer than fifteen employees.
- Title II sets an April 24, 2026, deadline for “a public entity, other than a special district government, with a total population of 50,000 or more”.
- Title II sets an April 26, 2027, deadline for “a public entity with a total population of less than 50,000 or any public entity that is a special district government”.
The Department of Justice published guidance to help small entities implement the new Title II rule, though entities of any size and those implementing the new Section 504 rule will find this valuable.
Exceptions
Each of the rules has certain exceptions that reflect some of the realities of the web. Both the Department of Justice and HHS worked to balance the needs of disabled people with the resources available to large and small entities alike. The exceptions shared by both are:
- Archived web content which must be in a part of a website that is clearly marked as an archive, and the content must truly be for archival purposes. If anyone requests an accessible version of inaccessible archived material, it’s critical to have a process to provide it under the ADA’s existing effective communication requirements.
- Preexisting conventional electronic documents created before conformance dates in each rule. This includes Word, PowerPoint, PDF, etc. Note that documents are not exempt if someone must use them to participate in a program, service, or activity.
- Content posted by a third party, unless it is in the category of “contractual, licensing, or other arrangements.” For example, if someone from the public posts a review of a service, they are not under any contractual, licensing, or other arrangements. However, if an entity pays a third party to create content for its website, they most likely are.
- Individualized, password-protected documents or otherwise secured conventional electronic documents. This is a bit of a letdown. These documents are often critical for those who access them. For example, a PDF statement of account from a city or hospital will have a payment deadline. Not making these accessible from the beginning introduces risks to individuals’ privacy and independence. While this exception exists, we encourage entities to consistently demand that vendors that provide documents like this make them accessible proactively.
- Preexisting social media posts posted before the conformance dates. Like electronic documents, these are not exempt if someone needs them to participate in a program, service, or activity.
Fortunately, some problematic exceptions found in earlier drafts didn’t make the final rules. In the draft rules, academic content behind a login in primary, secondary, and higher education was in two separate exceptions. We are pleased that the final rule no longer contains these exceptions. Both were broad and threatened over a decades’ worth of work that the Office for Civil Rights within the Department of Education had done to see that academic content is accessible from the start.
Conclusion
HHS and the Department of Justice point out that previous attempts to get covered entities to comply with web accessibility standards have not worked. The new rules clarify what covered entities must do and provide a reasonable deadline to conform with WCAG 2.1 AA.
We are also cautiously optimistic that the rules will help increase demand for accessible products from third parties to a point where accessibility is the norm in third-party products.
Meeting the deadlines may seem impossible, particularly if your entity has not begun to address accessibility in its technology. Contact us to discuss building your entity’s web and digital accessibility strategy, no matter where you are in your accessibility journey.