WebAIM’s Response to ADA NPRM

In August 2023, the U.S. Department of Justice issued a Notice of Proposed Rulemaking soliciting feedback on its plans to define requirements and technical standards for making the web and mobile services, programs, and activities offered by State and local Government entities accessible to individuals with disabilities. The notice poses 67 questions regarding the implementation of new standards. Below are WebAIM’s responses to several notable questions.

Question 2: Are there refinements to the definition of “web content” the Department should consider?

WebAIM recommends the Department ensure that the definition of “web content” more specifically addresses web applications by including examples alongside the current draft examples. Given the proliferation of more complex and interactive platforms on the web today, it is important to delineate this so that Title II entities are clear about the need to ensure accessibility in these more complex systems.

Question 3: Are there technical standards or performance standards other than WCAG 2.1 that the Department should consider? For example, if WCAG 2.2 is finalized before the Department issues a final rule, should the Department consider adopting that standard?

Because WCAG 2.2 will be finalized before the rule-making is finalized, and because this minor update to WCAG addresses real barriers to users with disabilities, WebAIM recommends that the Department adopt WCAG 2.2 A/AA. In our opinion, the Department should not look beyond the widely accepted and well-known standard of WCAG.

We encourage the Department to provide guidance to entities that will help them to apply relevant WCAG standards to conventional electronic documents. The World Wide Web Consortium’s “WCAG2ICT” will greatly help to advance accessibility in these file formats. The current version incorporates WCAG 2.0; a draft is prepared for WCAG 2.2.

Question 4: What compliance costs and challenges might small public entities face in conforming with this rule?

Regarding costs broadly, WebAIM urges the Department to guide Title II entities to avoid paying costs of remediation of third-party products and services whenever possible by instead influencing and motivating vendors to provide accessible products. WebAIM fears that including initial testing and remediation costs for third-party websites tacitly endorses the practice of for-profit organizations avoiding accountability for inaccessible products. Title II entities should be provided guidance to protect themselves via purchasing contracts, requests for proposals, etc. The Department must show care in its recurring suggestion that Title II entities should accept these costs as a matter of course.

More generally, WebAIM encourages the Department to place greater emphasis on using design, development and authoring tools and procurement processes that account for accessibility from the inception of a digital project rather than placing the emphasis on remediation. Public entities can better manage costs by identifying opportunities to incorporate accessibility into the beginning of their digital projects and by requiring compliance in procurement processes. The Department can be instrumental in recognizing the need for evaluation and remediation as well as the benefits of engaging accessibility proactively and from the beginning.

Question 5: Should the Department adopt a different WCAG version or conformance level for small entities or a subset of small entities?

No, the adopted standard should be uniform for all entities. Entities should not be permitted to provide less accessible digital environments for their constituents simply because of the entity’s small size. Nothing in the draft Rule removes an entity’s ability to claim an undue burden or fundamental alteration. To this point, the Department has applied first WCAG 2.0 AA and recently WCAG 2.1 AA uniformly in enforcement activities. There is no compelling reason to change course.

Question 6: How do public entities use social media platforms and how do members of the public use content made available by public entities on social media platforms? What kinds of barriers do people with disabilities encounter when attempting to access public entities’ services via social media platforms?

Public entities engage with their various audiences to varying degrees through social media. However, where social media is used, content and posts must be made accessible to the degree the platform supports. WebAIM is concerned about the possibility of an exception for social media posts made prior to the effective date of the rule. WebAIM encourages the Department to recognize that featured posts that remain at the top of a social media feed be made accessible whether they were posted before the effective date or not. Public entities often use these posts to share important information with their various audience members. This should strike a better balance between nondiscrimination and the effort required to update posts.

Question 9: How will the proposed compliance date affect small public entities? Are there technical or budget constraints that small public entities would face in complying with this rule, such that a longer phase-in period is appropriate?

We do not see how a longer phase-in for small public entities would help. While it is true that small public entities could benefit from additional guidance and support, our experience has been that individuals with disabilities served by small public entities tend to be disproportionately marginalized due to inaccessibility of digital information and services.

Separate implementation schedules are not needed or reasonable, given that the Departments of Justice and Education have made the need for accessibility abundantly clear for over ten years. Entities of all sizes have had significant opportunities to implement this voluntarily, and none should be rewarded for failing to do so to minimize their costs.

Regarding the specific mention of entities suggesting that they remove their websites, WebAIM believes that this is another area where the Department could provide guidance to discourage this strategy.

Question 10: How will the proposed compliance date affect people with disabilities, particularly in rural areas?

Poorly. Simply put, the proposed one-year extension for small entities means that individuals with disabilities in these areas run the risk of an additional year of difficulty accessing the resources that they need. Particularly in already underserved areas, things like accessible transportation and physical infrastructure can be very difficult to find. The Department must not perpetuate the marginalization of those with disabilities by allowing them to continue to face discrimination because of a perceived, and sometimes very real, lack of resources. If the Department properly supports smaller entities, then they should find that the expense is not as high as expected, even on a shorter timeline.

Question 11: How should the Department define “small public entity”? Should categories of small public entities other than those already delineated in this proposed rule be subject to a different WCAG 2.1 conformance level or compliance date?

WebAIM strongly urges against adding a “small public entity” exception or tiered implementation timeline.

We are particularly concerned with the definition of a “special district government.” Examples provided for this definition include some of the most essential public services such as “utility district” and “transit authority.” An entity that has “sufficient administrative and fiscal autonomy to qualify as a separate government” surely has the administrative and fiscal means to implement accessibility requirements in a timely manner. We encourage the Department to reconsider granting a longer phase-in for “special district governments”.

We strongly encourage the Department to move away from providing different target conformance levels or compliance dates based on the size of the public entity. Instead, we urge the Department to provide public entities with one implementation timeline in recognition of the Department’s long-standing and widely shared guidance about entities’ responsibilities in this space. Public entities of all sizes have repeatedly been advised of their responsibilities to provide access to services, programs, and activities from the Department of Justice and the Department of Education for over ten years. The obligation was reiterated more formally in 2022 when the Department published its Guidance on Web Accessibility, which consolidated statements and resources issued over time.

In our experience working with public entities of various sizes, while small public entities have fewer resources, they often rely more on third-party products. Greater accountability for the providers of these products would do more to improve the accessibility of the websites of smaller entities than extended timelines.

Question 13: Should the Department consider a different compliance date for the captioning of live-audio content in synchronized media or exclude some public entities from the requirement?

No, unless the Department can justify singling out the deaf and hard-of-hearing community in its Rule. The implementation deadline should be the same.

Question 14: What types of live-audio content do public entities and small public entities post? What has been the cost for providing live-audio captioning?

Public entities stream anything from press conferences to educational content to promotional events live. Human-generated captions, particularly when entities can participate in state or system-wide purchasing contracts, are in the range of $100 per hour. Automatically generated captions are widely available at no or very minimal cost, and the quality of automated captions continues to improve. WebAIM urges the department to guide public entities to provide captions that provide equivalent access, whether provided by human beings or using automatic captioning technologies.

Question 17: Are there alternatives to this (archived content) exception that the Department should consider, or additional limitations that should be placed on this exception?

We recommend that it be made abundantly clear that content used “for purposes of offering a current service, program, or activity” cannot qualify for the Archived Web Content exemption. While this language is used as an example of content that does not qualify, this should instead be clearly defined as a fourth criteria that must be met.

Question 18: Where do public entities make conventional electronic documents available to the public? Do public entities post conventional electronic documents anywhere else on the web besides their own websites?

Conventional electronic documents are posted alongside native web content on entity websites and social media channels. Conventional electronic documents are also shared via email alongside links to native web content. The reach of conventional electronic documents does not vary greatly from that of native web content. WebAIM strongly encourages the Department to treat conventional electronic documents the same way that it proposes to treat native web content rather than as a significantly different format.

Question 20: What would the impact of this (conventional electronic documents) exception be on people with disabilities? Are there alternatives to this exception that the Department should consider, or additional limitations that should be placed on this exception?

WebAIM supports the inclusion of this exception so long as it is clearly defined that this exception may apply “unless such documents are currently used by members of the public to apply for, gain access to, or participate in a public entity’s services, programs, or activities.” In other words, electronic documents that are utilized for critical public services cannot under any circumstance be classified as “preexisting conventional electronic documents”. The Department should further extend this language to include content used to provide information about or describe services, programs, or activities, rather scoping this only to “apply for, gain access to, or participate”. Access to information about services and programs is just as important as the ability to utilize those services and programs.

Question 25: What types of external mobile apps, if any, do public entities use to offer their services, programs, and activities to members of the public, and how accessible are these apps? While the Department has not proposed an exception to the requirements proposed in § 35.200 for public entities’ use of external mobile apps, should the Department propose such an exception?

WebAIM discourages the Department from creating an exception for external mobile apps. Public entities rely on external mobile apps for several services, from paying for parking, as mentioned in the draft Rule, to purchasing fares for public transit. Similar to conventional electronic documents, when mobile apps provide services, programs, or activities, they must be accessible and align with a single timeline and technical standard for conformance.

Questions 27-44 regarding exceptions for password-protected content

WebAIM will respond more generally to questions 27-44 regarding the proposed exceptions for educational material in primary, secondary, and post-secondary educational institutions that is in a password-protected environment.

WebAIM cannot urge the Department any more strongly to remove these exceptions entirely. Particularly in higher education, the Department of Education has informed institutions, schools, and districts for over ten years that they are responsible for providing accessible educational materials. Yet, inaccessibility in this content is still common. The Department states, “This will ensure that course content becomes more accessible to all students over time.” There is no evidence to support this assertion. While the proposed Rule indeed does mandate that course content be made accessible on demand and under specific circumstances, this may as well be a request for voluntary compliance across the academic environment. Elsewhere in the draft, the Department notes that “Voluntary Compliance with Technical Standards for Web Accessibility Has Been Insufficient in Providing Access” (from Section 3 D 4). And repeatedly, the draft refers to the Department’s longstanding interpretation that “the ADA applies to all services, programs, and activities of covered entities, including when they are offered via the web.” However, with this exception, the Department proposes removing this obligation for content critical to the very mission of education institutions. The impact of this exception on students with disabilities and accommodations services units across the country will be detrimental relative to the possible gains made without it.

The exception places additional emphasis on reactive accommodation while also proposing shorter timeframes for responding to requests to make educational materials accessible. The shorter timeline required for an accommodation also places more strain on units that are frequently underfunded and under-resourced as it is. Students with disabilities, even when an institution meets the stated timelines, still face a delay in their learning.

A reactionary model is not sustainable, equitable, or just. It reinforces the need for students to self-identify and endure ongoing losses of privacy and independence in addition to delaying learning opportunities and forcing them to compress more work into a shorter timeframe in order to catch up with their non-disabled peers. WebAIM hopes that this exception is removed in full so that students might begin to see meaningful, widespread improvement to accessibility in all digital learning materials.

The draft Rule notes that “Although a professor may load all their course content on the password-protected website at one time, they may also stagger the release of particular content to their students at various points in time during the term.“ This kind of staggered approach is a perfect example of a viable approach to creating accessible content from the beginning of every course. The Department misses an opportunity to use this approach to provide accessible materials proactively and broadly by putting this model into context here.

In primary and secondary settings, our objections and reasoning also follow when we consider parents with disabilities. We also recognize the critical need for educational institutions at all levels to continue to provide reasonable accommodations and effective communication as set forth elsewhere in the ADA and other legislation. We assert, however, that reactively making learning content accessible should not fall into the category of a reasonable accommodation when authoring tools and learning management systems afford instructors and instructional designers many opportunities to create accessible content from the start.

Question 45: What kinds of individualized, conventional electronic documents do public entities make available and how are they made available (e.g., on websites or mobile apps)? How difficult would it be to make such documents accessible?

The example provided for this exception illustrates the problem with this proposed exception: “For example, if a person with a disability requests access to an inaccessible bill from a county hospital, the hospital may need to extend the payment deadline and waive any late fees if the hospital does not provide the bill in an accessible format in sufficient time for the person to review the bill before payment is due.”

This example places a significant burden on the individual with a disability: Identifying the inaccessible document in question and its purpose, contacting the bill provider to request an accessible bill, and contacting the hospital to negotiate a change in deadline or waiving of late fees. Anyone who has ever worked through a billing issue with a healthcare provider can appreciate how difficult it can be to navigate this process a single time. Placing this burden on the individual who has already been disadvantaged by inaccessibility as a common, repeated, and government-approved interaction is untenable.

Public entities share individualized, conventional electronic documents through websites, mobile apps, and email. As with any other technology, the relative ease or difficulty of making the content accessible varies significantly based on the tool chosen for the job. Many times, these documents are generated by a third-party platform, and other times, they are created directly using authoring tools. Regardless of the tool being used, accessibility improvement typically comes in response to customer pressure, which is often a result of legal requirements.

The question of how difficult it would be to make such documents accessible implicitly suggests that they should have been made natively accessible in the first place–either through creating a natively accessible document or by choosing a more suitable format–and encourages remediation as a primary accessibility technique.  Any requirement that focuses on remediation as an acceptable solution reduces incentive for natively accessible products. Focusing less on remediation as a technique for creating accessible documents will reduce the workload significantly. WebAIM encourages the Department to remove this exception entirely and instead focus efforts on preparing and guiding public entities to account for accessibility before an individualized, conventional electronic document is prepared.

Question 47: What would the impact of this exception be on people with disabilities?

WebAIM believes that the largest impact will be ongoing discrimination, potentially resulting in people with disabilities continuing to be forced to delay responding to critical communications from public entities.

Question 48: Which provisions of this rule, including any exceptions (e.g., the exceptions for individualized, password-protected conventional electronic documents and content posted by a third party), should apply to mobile apps?

We do not see any logical connection between electronic documents and mobile apps. In fact, the roles that they fill couldn’t be more different. Any proposed exceptions for electronic documents and mobile apps should be completely independent.

Question 49: Would allowing conforming alternate versions due to technical or legal limitations result in individuals with disabilities receiving unequal access to a public entity’s services, programs, and activities?

WebAIM agrees with the Department that conforming alternate versions should be allowed for the reason specified — “only where it is not possible to make websites and web content directly accessible due to technical limitations.” WebAIM also shares the Department’s “concerns about user experience, segregation of users with disabilities, unequal access to information, and maintenance burdens”. “Separate but equal” has rarely proven itself to be true in digital environments. 45.4% of screen reader users report that they “seldom” or “never” utilize text-only or screen reader versions of web content, and the rate of use of these alternative versions is decreasing over time.

However, one of the benefits of web-based content is that it can be delivered in multiple versions simultaneously. The Web Content Accessibility Guidelines includes a clear definition of conforming alternate versions. This is the only definition that should be used.

WebAIM would like for the Department to clarify its reference to limitations when web content is copyright protected, particularly in academic and other contexts when fair use is permissible. Public entities frequently cite copyright concerns as they deliberate making content accessible, and making a clear statement as to the legitimacy of that concern will be quite helpful.

With respect to measuring conformance, WebAIM submits the following considerations:

• The notice states, “An additional challenge to specifying what it means to comply with a technical standard for web accessibility is that, unlike the physical accessibility required by the ADA Standards, which can be objectively and reliably assessed with one set of tools, different automated testing tools may provide different assessments of the same website’s accessibility.” This is true. However, this also makes it seem as if entities are at a point where the nuances of accessibility testing are the biggest challenge. Data suggests otherwise. Lack of alternative text remains one of the most common accessibility issues on the web yet testing tools have nearly uniformly reported this as an issue for decades. Suggesting that the issue of how various permutations of operating systems, browsers, assistive technologies, etc. hampers our efforts to evaluate accessibility complicates the conversation given the current state of digital accessibility.
• The notice states, “Another approach the Department is considering is whether an entity could demonstrate compliance with this part by affirmatively establishing and following certain robust policies and practices for accessibility feedback, testing, and remediation.” WebAIM suggests that this also connects to the maturity model reference made elsewhere. Affording public entities an opportunity to assess their internal accessibility program to identify and close gaps in their technology strategy provides them with critical insight for planning and organizational policy.
• The notice states, “The Department has several concerns about whether allowing organizations to demonstrate compliance with this rule through their organizational maturity will achieve the goals of this rulemaking.” WebAIM suggests that this organizational view is critical to the long-term and scalable success of a public entity’s digital accessibility efforts. Organizations must begin to acknowledge that barriers to access are the result of gaps in systems and processes. Encouraging this kind of self-assessment is critical.