On April 8 2024, the United States Attorney General signed a final rule providing requirements for digital accessibility under Title II of the Americans with Disabilities Act (ADA). This is a historic and significant event in the global timeline of digital accessibility. For the first time since the ADA was enacted in 1990, technical requirements exist for applying the ADA to web content and mobile apps. This post summarizes the rule’s requirements and limitations, and some thoughts on its impact on the world of accessibility.

The rule in a nutshell

The rule applies to organizations in the U.S. that are covered under Title II of the ADA. That includes services, programs and activities provided by state and local governments, which also covers public schools and universities.

Covered organizations must ensure that all their web content and mobile apps not subject to the rule’s exceptions conform to the W3C Web Content Accessibility Guidelines (WCAG) 2.1 at Level AA. This must happen within two years of the rule’s official publication date (which is still to be defined at the time of writing), or within three years for smaller organizations.

The rule includes several exceptions where the technical requirements do not apply. These exceptions relate mainly to specific formats of content that were already published before the rule’s publication date:

• archived web content;
• pre-existing digital documents;
• pre-existing social media posts made by the covered organization.

Exceptions also include:

• password-protected personal documents;
• content posted voluntarily by a third party (e.g. comments on a web page or in an online discussion forum). This exception does not apply to content or functionality provided by a third party that was commissioned or contracted by a covered organization.

For more information, the Department of Justice (DoJ) has published:

• Fact Sheet summarizing the rule requirements and the reasons for publishing the rule.
• Version of the rule that was signed by the Attorney General (PDF format). (This won’t be the final official published version but we can assume it will be equivalent.) This document provides the text of the rule along with definitions that are referenced in the rule, including specific definitions of exempted content. It also contains a lengthy commentary from the DoJ on how the text of the final rule was confirmed, including considerations of feedback on the version that was made available for public review in the Notice of Proposed Rulemaking (NPRM) of mid 2023.
• YouTube video in American Sign Language of the announcement of the rule.

TPGi’s observations

From a first read of the rule and supporting comments, here are a few observations of significance.

WCAG 2.1 Level AA is the requirement, not WCAG 2.2

The final rule references version 2.1 of WCAG, even though the latest version of WCAG is 2.2. This means that ADA technical requirements are already out of step with WCAG. The DoJ justified this decision based on the level of familiarity expected to exist for WCAG 2.1 and its supporting educational resources, compared to the more recently published WCAG 2.2. The Department did note that nothing in the rule discourages covered organizations from conforming to WCAG 2.2.

The DoJ made clear that rules established by the Office of the Federal Register mean any regulation that incorporates a standard by reference (such as WCAG) must name a specific version of the standard. Unfortunately, rules cannot reference “the latest version” of a standard, whatever that may be – making future-proofing challenging. If the DoJ wants the rule to reference a newer version of WCAG, the rule must be revised. As we saw with Section 508, the process of updating a technical rule can take many years, with the risk of a growing gap between legal requirements and current best practice.

Full conformance may not always be necessary

While WCAG 2.1 Level AA is the standard required, the rule also provides scope for digital resources that don’t conform to the standard in specific and minor ways, so long as it can be shown that these issues do not affect people with disabilities when accessing and using the resource. There is also provision for specific situations where a covered organization can meet requirements by providing a conforming alternative version of content or functionality that cannot be made accessible.

Education exceptions were removed

The final rule changed noticeably from the 2023 NPRM made available for public review. In particular, exceptions referencing specific types of digital content used for educational purposes were removed. There have also been clarifications over which third-party content is covered by the rule, limiting the definition of content that is exempted. This indicates that the DoJ took careful notice of requests for the rule to reduce the number of exceptions and to provide greater clarity on requirements.

Summary

We’re very grateful to the DoJ for the work that went into drafting this rule, and we’re glad to see it finally published. The rule should help make it easier for organizations to understand how to make their web content and mobile apps accessible to people with disabilities, and to meet their obligations under Title II of the ADA. In turn, this will help to reduce barriers to access in the digital world for people with disabilities.

The final rule may not be perfect, but it should provide some welcome clarity that the ADA applies to web content and mobile apps, reducing the courts’ reliance on case precedent. And it should lead to renewed efforts to improve web and mobile accessibility in the United States — and beyond. The next step is to increase efforts to ensure the DoJ turns its digital accessibility rulemaking efforts to address businesses and other organizations covered by Title III of the ADA.

Image credit: FEMA/Bill Koplitz.