Comments on the ADA Title II Website and Mobile App Notice of Proposed Rulemaking (September 19, 2023)

September 19, 2023
Rebecca B. Bond
Chief, Disability Rights Section
Civil Rights Division
United States Department of Justice
150 M Street, NE
Washington, DC 20002

RE: RIN 1190-AA79

Dear Chief Bond:

The National Federation of the Blind appreciates the opportunity to comment on the notice of proposed rulemaking (NPRM) regarding the regulation to establish specific requirements for web and mobile apps offered by state and local governments to the public, in accordance with title II of the Americans with Disabilities Act (ADA). While we are pleased to see the Department of Justice (DOJ) publish the NPRM and are generally agreeable to the broader aspects of the proposed rule, there are specific parts of the proposed rule, namely the seven newly introduced exceptions for public entities, which give us serious cause for concern.

First and foremost, while we have specific concerns regarding each of the seven exceptions proposed in the NPRM, which we will outline in detail below, we also have an overarching concern with the introduction of any new exceptions to accessibility standards. The Americans with Disabilities Act was passed with two exceptions already included in the law: (1) undue burden and (2) fundamental alteration. Both of these longstanding exceptions are well recognized by both Americans with disabilities and by the United States legal system. They are also acknowledged in the DOJ’s Title II Website NPRM, yet the Department deemed it appropriate to introduce seven new classes of exception for entities to use in order to avoid making their web and mobile app content accessible. The introduction of these new exceptions is not only inappropriate and unnecessary but also sets a dangerous precedent for the forthcoming publication of the Title III Website NPRM. Therefore, we oppose any rule that may be published containing any of these seven exceptions.

While it may arguably be an undue burden in some circumstances to make pre-existing content accessible, the relevancy of this defense is being mitigated through the advancement of technology. We are living in an era where digital accessibility is already relatively easy to attain, and it is only getting easier. Therefore, the assumption of burden, and thus the exceptions, should not be applied to new content developed and posted after the regulation. The regulation already gives covered entities two or three years, depending on size, to come into compliance. This is more than enough time for covered entities to develop processes and procedures to ensure new content is accessible. Providing accessibility for new web content is not burdensome or costly, and covered entities should not be able to avoid providing accessibility for new content unless they can demonstrate that doing so would actually constitute an undue burden or fundamental alteration.

The proposed exceptions go far beyond the current undue burden and fundamental alteration defenses and, therefore, substantively decrease the obligations of existing law. Whereas the undue burden defense depends on both the resources of the covered entity and the difficulty and expense of accessibility, the proposed exceptions exempt broad swaths of new and existing content, regardless of how easy the content is to make accessible and regardless of the resources available to do so. The ADA’s existing defenses of undue burden and fundamental alteration are sufficient. Some existing content may properly be subject to an exception because it may arguably be presumed that it will be burdensome in most instances. However, new content should never be presumed to be burdensome to make accessible in the absence of some unusual constraint on the resources of the covered entity. The entity is in the best position to determine what those constraints are, to document them, and to respond to any assertion of liability. People with disabilities should not lose access to important government information, including new content by large entities, simply because some small entities may, for reasons unique to them, have difficulty complying. Those entities already have a defense available.

Nor is there any basis for departing from the undue burden and fundamental alteration defenses or for creating new defenses. The defenses have been workable for state and local government entities for over three decades, and there is no evidence that such entities are unable to avail themselves of those defenses. Therefore, we must again urge the Department to limit its exceptions to those that would constitute an undue burden or fundamental alteration. Those exceptions should be based on the difficulty of achieving accessibility (which is greater for preexisting content and negligible for new content) and the resources available to the covered entity (which is already addressed by the larger period for compliance given to smaller entities in the proposed rule).

Furthermore, in the NPRM the Department “strongly recommends” that public entities “provide notice to the public on how an individual who cannot use the web content or mobile app because of a disability can request other means of effective communication.” This is not enough. If there are going to be exceptions to the obligation to make content accessible, there must be a way to request access. To this end, the Department should require that whenever an entity takes advantage of an exception or defense, it provides an easily accessible, round-the-clock way for people with disabilities to request accessibility.

Exception 1: Archived Web Content

The National Federation of the Blind urges that this exception be eliminated.
While we agree with the assertion of the NPRM that the resources of entities should be focused on making content accessible moving forward, entities already have the existing exceptions of undue burden and fundamental alteration, as indicated numerous times in the proposed rule. The current defenses, unlike the proposed exception, would not permit newly-created content to be archived inaccessibly.

Question 17: Are there alternatives to this exception that the Department should consider, or additional limitations that should be placed on this exception? How would foreseeable advances in technology affect the need for this exception?

Any new content that gets added to the archive following the effective date of the proposed rule must be accessible since it will have been required to be accessible upon its creation. Exponential advancements, particularly in the fields of artificial intelligence and optical character recognition, will very likely make the “undue burden” of today the quick and easy task of tomorrow, at which point this exception will become unnecessary and should be eliminated.

Exception 2: Preexisting Conventional Electronic Documents

The National Federation of the Blind urges that this exception be eliminated.

The electronic document file formats that are covered by this exception are far too broad and, in general, are easily made accessible. There is no reason why any of the document types listed in the NPRM should not be required to be accessible. Given the existing exemptions for undue burden and fundamental alteration, this newly proposed exception is, at best, unnecessary.

Question 19: Would this “preexisting conventional electronic documents” exception reach content that is not already excepted under the proposed archived web content exception? If so, what kinds of additional content would it reach?

Yes. Covered websites often host community information sheets, flyers, proposals, and other important updates to their websites using these formats. These documents are living documents and subject to change. While it is true that the Department has proposed a limitation to safeguard access to services and programs, this raises the question of why have the preexisting documents exception at all if non-living documents will be considered archived content, and therefore fall under the archived content exception. Regardless, we see an area where the preexisting conventional documents exception, for documents that are not truly archived, could negatively impact disabled people’s ability to access crucial data because they are important for understanding covered entity programs, activities, and services, but are not “used” to access them. Thus, for example, will a description of a public park be considered subject to the exception when it is not “used” to “apply for, gain access to, or participate in” the public park program?

Question 20: What would the impact of this 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? How would foreseeable advances in technology affect the need for this exception?

As discussed in the example above, agencies may deny that descriptive and informative conventional electronic documents are “used” to access programs, services, or activities, and therefore, decline to make them accessible. Given the archiving exception in combination with existing defenses of undue burden and fundamental alteration, the preexisting electronic documents exception seems unnecessary at best and actively harmful at worst.

Exception 3: Web Content Posted by Third Parties on a Public Entity’s Website

The National Federation of the Blind urges that this exception be eliminated or restricted to content that is not related to an entity’s services, programs, or activities.

While we understand that it may be difficult for public entities to control some content posted by a third party on the entity’s website, most third-party content should still be required to be accessible. To not require accessibility in this area would deprive citizens with disabilities of their right to be informed in situations such as public comments on proposed rulemakings or knowing about upcoming community events that may be posted on a public message board on the entity’s website.

Question 21: What types of third-party web content can be found on websites of public entities and, how would foreseeable advances in technology affect the need for creating an exception for this content? To what extent is this content posted by the public entities themselves, as opposed to third parties? To what extent do public entities delegate to third parties to post on their behalf? What degree of control do public entities have over content posted by third parties, and what steps can public entities take to make sure this content is accessible?

State and local governments include some third-party content on their websites. Any exception for third-party content posted on a government website should be limited to advertising and things that are not used to access government information or services. This exception, as written, is not limited to third-party content that is not “used” by the government entity. Most importantly, forums for official public comments on government actions or proposed actions should be accessible because that is the point of the comment program. See, for example, https://publicinput.com/n6303.

Question 22: What would the impact of this exception be on people with disabilities?

This exception will harm people with disabilities by denying them access to government information and services. This exception fails to limit itself to third-party content that is not used to access government information and services. Therefore, this exception would deprive residents with disabilities of the opportunity to participate in their government’s activities and decision-making by denying them access to their neighbors’ comments on government actions and proposed actions.

Exception 4: Third-party Web content Linked from a Public Entity’s Website

The National Federation of the Blind urges that this exception be eliminated.

State and local governments frequently rely on links to third-party web content to provide both information about and access to certain government services. Some of these include links necessary to access government services, such as searching for available public housing, accessing transportation, and obtaining visitor guides. If these links, all of which are accessed through the public entity’s own website, are not required to be accessible then important information will be inaccessible to people with disabilities.

Question 23: Do public entities link to third-party web content to allow members of the public to participate in or benefit from the entities’ services, programs, or activities? If so, to what extent does the third-party web content that public entities use for that purpose comply with WCAG 2.1 Level AA?

State and local governments use links to third-party web content more and more, not just to provide information about third-party services, but to provide information about or access to government services. In some instances, governments are providing their data to third parties for manipulation and the data is then hosted by the third party. For example, a review of just three (one large, one medium, and one small) government websites showed links to weather services; Wikipedia for information about the demographics, history, and other information about the jurisdiction; map services such as ArcGIS to portray a wide variety of information about the jurisdiction (e.g., maps of government properties, zoning areas, city council districts, polling place locations, crimes, environmental hazards); third-party search functions for government camp programs; third-party systems for payment of fines; third-party systems for reserving and paying for public parking (e.g., ParkMobile); third-party applications for government rebates; a third-party website through which to search for pets to adopt through the city’s animal shelter; a third-party website through which to search for available public housing; a for-profit service to bid on surplus government property; non-profit and for-profit entities that provide tours, tourist information, or advocacy on issues to improve the government; private transportation providers; entities that run the school lottery program; visitors guides; and local tourism bureaus, just to name a few. In short, governments are relying more and more on third parties to provide government information and services. Without accessibility of these third-party links, important government information will be unavailable to people with disabilities.

In addition, educational institutions often provide links to third-party content as study and discussion materials for classes. Whether mandatory or supplemental, such links are important for students’ education, and students with disabilities must have equal access.

Question 24: What would the impact of this exception be on people with disabilities and how would foreseeable advances in technology affect the need for this exception?

This exception’s limitation for content “the public entity uses . . . to allow members of the public to participate in . . . the public entity’s services, programs, or activities” may result in confusion and corresponding litigation. The limitation on the exception for links that the government “uses . . . to allow members of the public to participate in or benefit from the public entity’s services, programs, or activities” is too narrow, as it would appear to allow inaccessibility of a variety of data that state and local governments offer through third parties like ArcGIS, but that are not necessary to access another particular program of the covered entity. For example, third party maps of crime data provided and linked by the government should be available to residents with disabilities, not merely to those without disabilities. When it is the government’s data, made available by the government for government purposes, the distinction between accessibility and inaccessibility should not depend on whether the information is hosted on or linked from the government website.

This exception may also further encourage use of third-party services and information even more than currently, thus making less and less government website content accessible.

Government entities have long been aware that their web content, including any third-party content and links that they actually use, has to be accessible. As a result, a substantial amount of such content is already being made accessible and can easily be made accessible. There is no need for further technological advancements in order for third-party content to be made accessible.
In the context of educational institutions using linked third-party content as reading or discussion materials for courses, exempting such third-party content would exclude students with disabilities from important, even mandatory, educational content. The exemption might even encourage educational institutions to use more linked third-party content than they do now, in order to escape accessibility obligations. It should be made clear that including third-party content as course materials is “using” the content for access to the public institution’s programs and does not qualify for the exception.

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? If so, should this exception expire after a certain time, and how would this exception impact persons with disabilities?

We support the Department’s position on this issue in that there should be no exception for external mobile apps.

Exception 5: Course Content on a Public Entity’s Password-Protected or Otherwise Secured Website for Admitted Students Enrolled in a Specific Course Offered by a Public Postsecondary Institution

The National Federation of the Blind urges that this exception be eliminated, particularly as it relates to content posted after the effective date of the rule.

In the NPRM the Department posits that “within two years following implementation, virtually all postsecondary courses will have been remediated.” This assumption is based on SIPP data on the number of students with disabilities. SIPP data shows a higher prevalence of disability than other sources. Additionally, that data does not address the percentage of students with relevant disabilities who attend college, which is lower still. Real-world experience demonstrates that course content is not remediated over time based on the enrollment of students with disabilities – schools already have these obligations to make course content accessible when students enroll. So if course content were going to become accessible over time, it would have happened already, but it has not. Fewer students with disabilities enroll and course content is not static, so making a course’s content accessible once does not mean it stays accessible the next semester. This rule needs to require all new content to be accessible and, once a course’s content is made accessible, it must be required to remain accessible, even when content is added or changed.

This exception, and the similar exception for password-protected course content at an elementary or secondary school, are unequivocally the most egregious of the new exceptions offered by the proposed rule. Many colleges and universities already have policies requiring new digital content to be accessible from the beginning, subject only to the existing ADA defenses of undue burden and fundamental alteration. This is because they have learned from past experience that trying to comply with their effective communication obligations under the Americans with Disabilities Act after the fact on an ad hoc basis is costly and simply does not work. This exception would exclude blind and print disabled students from postsecondary education and undermine expectations by both students and public postsecondary institutions about what accessibility requires.

Question 27: How difficult would it be for public postsecondary institutions to comply with this rule in the absence of this exception?

Public postsecondary institutions are already complying with this rule in the absence of any exception. Postsecondary institutions are already aware that they cannot effectively comply with their effective communication obligations under the ADA on an ad hoc basis when students with disabilities show up, but they need to make their digital offerings “born accessible.” Therefore, many, if not most, colleges and universities already have policies requiring new digital content to be accessible from the beginning and needing only the existing ADA defenses of undue burden and fundamental alteration. See, e.g.:

• California State University - https://calstate.policystat.com/policy/9798168/latest/;
• University of Pennsylvania - https://accessibility.web-resources.upenn.edu/overview-accessibility-penn/standards;
• University of Chicago - https://its.uchicago.edu/digital-accessibility-policy/;
• Ohio State University - https://accessibility.osu.edu/policy;
• University of South Carolina - http://www.sc.edu/policies/ppm/it500.pdf;
• University of California - http://policy.ucop.edu/doc/7000611;
• University of North Carolina - https://policies.unc.edu/TDClient/2833/Portal/KB/ArticleDet?ID=131329;
• University of Illinois Urbana Champaign - https://cam.illinois.edu/policies/hr-86/;
• University of Wisconsin - https://policy.wisc.edu/library/UW-519;
• Michigan State University - https://webaccess.msu.edu/policy#note2;
• Iowa State University - https://www.policy.iastate.edu/policy/digital_accessibility;
• University of Minnesota - https://policy.umn.edu/it/webaccess;
• Texas State University - https://doit.txst.edu/accessibility/ada-statement/web-policies.html;
• University of Colorado Boulder - https://www.colorado.edu/policies/digital-accessibility;
• University of Missouri - https://www.umsystem.edu/ums/rules/collected_rules/equal_employment_educational_opportunity/ch600/600.090-digital-accessibility-policy;
• SUNY Broome Community College - https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwj1lMPw3OGAAxWsElkFHX54DNUQFnoECBAQAQ&url=https%3A%2F%2Fwww2.sunybroome.edu%2Fpp%2Fwp-content%2Fuploads%2Fsites%2F47%2F2021%2F09%2FIT9002-Web-Accessibility-Policy.pdf&usg=AOvVaw1zSrTE5xjlcsxTK2zGa8jG&opi=89978449;
• George Washington University - https://compliance.gwu.edu/web-and-digital-content-accessibility-policy.

In fact, the Departments of Education and Justice and private advocates and courts have required exactly that without imposing any password-protection exceptions for over a decade. See, e.g.:

• Atlantic Cape Community College - https://www.nfb.org/images/nfb/documents/pdf/higher-ed-toolkit/atlantic_cape_consent_decree_.pdf;
• Wichita State University - https://www.nfb.org/images/nfb/documents/pdf/higher-ed-toolkit/wichita-state-agreement.pdf;
• Southern Oregon University - https://nfb.org/images/nfb/documents/pdf/higher-ed-toolkit/sou-agreement.pdf;
• Florida State University - https://www.nfb.org/images/nfb/documents/pdf/fsu%20settlement%20agreement.pdf
• University of Montana - https://www.nfb.org/images/nfb/documents/pdf/agreement_university_of_montana_march_10_2014.pdf;
• Los Angeles Community College - https://nfb.org/about-us/press-room/federal-court-rules-favor-blind-students;
• South Carolina Technical College System - https://www2.ed.gov/about/offices/list/ocr/docs/investigations/11116002-b.pdf;
• Louisiana Tech University - https://archive.ada.gov/louisiana-tech.htm;
• Mt. Hood Community College - https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10142224-b.pdf;
• Youngstown State University and University of Cincinnati: https://www2.ed.gov/documents/press-releases/youngstown-state-university-agreement.pdf, and https://www2.ed.gov/documents/press-releases/university-cincinnati-agreement.pdf;
• Miami University of Ohio - https://archive.ada.gov/miami_university_cd.html;
• University of North Carolina System - https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/11196908-b.pdf;
• University of Nevada Las Vegas - https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10226004-b.pdf;
• University of California Berkeley - https://www.justice.gov/opa/press-release/file/1553291/download;
• City University of New York - https://www.justice.gov/d9/press-releases/attachments/2023/04/12/cuny_vca_0.pdf.

This proposed exception, which, notably, exempts new content from accessibility even though new content is easily born accessible, is based on misguided assumptions about the difficulty of accessibility and the use of Learning Management Systems (LMS) by colleges and universities that are simply untrue and have not been true for years. LMS are now ubiquitous among postsecondary institutions, large and small. Exempting them from accessibility exempts postsecondary education virtually in its entirety. Moreover, accessibility of new content is easy, and quick, and can be done as a matter of course. This exception will be a step back into the dark ages of accessibility, will reduce the current ADA obligation, and will encourage postsecondary institutions to go backwards and start creating inaccessible content when they weren’t previously.

Question 28: What would the impact of this exception be on people with disabilities?

This proposed exception would exclude blind and print disabled students from postsecondary education, effectively swallowing the rule for the most important aspect of postsecondary education – the education. Moreover, it would undermine long-settled expectations, both by students with disabilities and their colleges and universities, about what accessibility requires. Since the COVID-19 pandemic, the vast majority of public colleges and universities offer their course materials through learning management systems, which are password-protected mechanisms for sharing information among students in a particular course. They are not moving away from online learning, but toward incorporating it more and more in their classroom teaching. So password-protected course content and collaboration is the norm and will remain the norm.

This exception allowing new course content to be inaccessible if it is only available to students will be a barrier to every single student with a relevant disability. Instead of being able to assume new course content is born accessible, they will be relegated to after-the-fact accessibility, which is more difficult, more time consuming, and less effective. Such after-the-fact accessibility policies have been demonstrated to be ineffective time after time in the past. They routinely leave students with disabilities without course materials on a timely basis, with no effective way to collaborate with their peers, and with, at best, awkward work-around solutions that are only partially effective. In addition, schools are more likely to find remediation of new content to be more difficult than it would have been to make it accessible in the first place, leading to increased reliance on the undue burden exception of the existing regulation.

Moreover, the exception, itself, discriminates against students with disabilities by only requiring materials to be made accessible by the first day of class. In most classes, reading assignments are expected to be completed before the first day of class so that the first day of class can be productive. Nondisabled students have access to their LMS materials long before the first day of classes. Like in decades past, this exception will relegate students with disabilities to inferior second-class status.

Question 29: How do public postsecondary institutions communicate general information and course-specific information to their students?

Public postsecondary institutions rely on password-protected Learning Management Systems to communicate course-specific information to students. These LMS also may include email announcements that are sent to addresses managed and set up by the postsecondary institution. Students who enroll in postsecondary education are given credentials to set up student email inboxes that are password protected as well. These learning management systems are used via a web browser or mobile application, and it is vital for the student’s overall success while studying at the postsecondary institution they are made accessible. In addition, public postsecondary institutions use password-protected portals to provide students, faculty, staff, and parents with access to financial information and other campus information (e.g., student centers, advisors).

Question 32: On average, how much content and what type of content do password-protected course websites of postsecondary institutions contain? Is there content posted by students or parents? Should content posted by students or parents be required to be accessible and, if so, how long would it take a public postsecondary institution to make it accessible?

Virtually all postsecondary course content, class materials, reading materials, exams, and collaboration opportunities are now on password-protected websites. Third-party content, such as discussions, is posted by other students and is an important part of the educational experience. Such third-party content is clearly being used by the school to offer education and, therefore, should not be subject to any exception. Schools should be required to insist that posters make their posts accessible and can do so by limiting posts to text and by providing any tools necessary to do so and by remediating any inaccessible posts in a timely manner upon request.

Question 33: How long would it take to make course content available on a public entity’s password-protected or otherwise secured website for a particular course accessible, and does this vary based on the type of course? Do students need access to course content before the first day of class? How much delay in accessing online course content can a student reasonably overcome in order to have an equal opportunity to succeed in a course, and does the answer change depending on the point in the academic term that the delay occurs?

It should not take any time to make new course content accessible because it should be accessible from the beginning. In the absence of this exception, content would be born accessible and would not need to involve the waste of time and energy for remediation that this exception requires. Students with disabilities should not have to bear the burden of a postsecondary institution’s decision to delay accessibility. Students with disabilities should be entitled to accessible password-protected course materials at the same time they are made available to nondisabled students, including before the first day of class.

Most inaccessible documents, such as word processing, PDF, and presentation formats, can be made accessible easily and quickly–in minutes–using standard accessibility tools available through Microsoft, Adobe, Google, and others. Therefore, no delay should generally be permitted. Generally, even when a student joins a class after it begins, the materials available for the course should be accessible by the time of the next class meeting. Rather than imposing a generic five-day time limit, such a class-meeting-based time limit would ensure that a student did not miss the materials for more than the number of classes she missed by enrolling late. Thus a student enrolling after the first class of a course that meets twice a week would be able to catch up by the second class, just as her nondisabled classmates can. At the same time, a class that only meets once a week would have seven days to provide the accessible materials. For unconventional, scanned, or extremely lengthy documents, the postsecondary institution already has the undue burden defense to address any inability to prepare the accessible materials that quickly and does not need an inflexible, likely unworkable, time period.

Question 34: To what extent do public postsecondary institutions use or offer students mobile apps to enable access to password-protected course content? Should the Department apply the same exceptions and limitations to the exceptions under proposed § 35.201(e) and (e)(1)-(2), respectively, to mobile apps?

Mobile apps are currently ingrained in the college and university curricula. For example, the three most popular LMS – Canvas, Blackboard, and Moodle – all offer apps. These apps should be required to be accessible, just as their web-based platforms are required to be accessible, and the content on the apps should not be subject to any exception for password protection.

Question 35: Should the Department consider an alternative approach, such as requiring that all newly posted course content be made accessible on an expedited time frame, while adopting a later compliance date for remediating existing content?

Yes. The Department should implement a different approach, recognizing that new content can easily be born accessible or made accessible. Requiring it to be accessible from the beginning is the only way to allow students with disabilities a chance at equal access to education. Therefore, there should be no exception for content that is being posted for the first time to a particular password-protected course or that has been altered before being reposted to a password-protected course. Public postsecondary institutions should have an additional six months to remediate existing content on their password-protected course sites. In the meantime, they should be required to remediate existing content whenever a student with a known relevant disability enrolls in the course. Remediation of existing content upon enrollment of a student with a relevant disability should be accomplished either (1) by the time materials are made available to nondisabled students, for a student with a disability who enrolls in the class during regular enrollment, or (2) by the time of the next class meeting, for a student with a disability who enrolls after regular enrollment.

Exception 6: Class or Course Content on a Public Entity’s Password-Protected or Otherwise Secured Website for Students Enrolled, or Parents of Students Enrolled, in a Specific Class or Course at a Public Elementary or Secondary School

The National Federation of the Blind urges that this exception be eliminated.

As with the previous exception, this exception for password-protected content at a public elementary or secondary school is wholly inappropriate and unnecessary. Public elementary and secondary schools are already complying, for the most part, with the existing rules regarding accessibility. This proposed exception will exclude blind and print disabled students from elementary and postsecondary education, and it will set accessible education for students with disabilities back by decades. This and the previous exception are, in no uncertain terms, a step in the wrong direction in the public education of American students with disabilities.

Additionally, this proposed exception will exclude blind parents and guardians of children enrolled in public elementary and secondary schools from meaningfully participating in their children’s educations – effectively stripping them of their right to parent. A major benefit to the creation of password-protected websites in the public school environment is permitting and encouraging parents to be active participants in their children’s education while preserving student and family privacy. These sites facilitate communication with educators, allow parents to understand what and how their children are learning, and alert parents to potential concerns in the areas of attendance, behavior, and academic performance. Additionally, in recent years, these sites have become important tools to share with parents warnings about the health, safety, and welfare of students in public school buildings, from infections to allergies to violence.

This proposed exception also negatively affects blind educators. Public schools use password-protected sites to enable their educators and other staff members to perform their jobs. However, because of the inaccessible websites their employers required them to use, many blind educators have been forced to leave teaching altogether.

If left in the final rule, this proposed exception will result in blind children, blind parents, and blind educators being excluded from participation in and being denied the benefits of services, programs, and activities of a public entity.

Question 36: How difficult would it be for public elementary and secondary schools to comply with this rule in the absence of this exception?

Public elementary and secondary schools have already been complying with this rule, without this exception, for years. This exception will be the exception that swallows the rule. Even for schools that don’t currently use learning management systems, this exception will encourage them to do so in order to circumvent accessibility, leaving students with disabilities out of their education. If anything, this exception is even worse in the elementary and secondary school context than in the postsecondary education context, because it will harm virtually every blind or print disabled student in the country and inhibit their access to the most basic education. All for no reason. Making new documents accessible is neither difficult nor expensive. Remediating them afterward is more difficult, but that is what this exception encourages schools to do. Most importantly, the delay inherent in unnecessarily remediating new inaccessible content will harm students with disabilities.

Question 37: What would the impact of this exception be on people with disabilities?

This proposed exception would exclude blind and print disabled students from elementary and secondary education, effectively swallowing the rule and denying public education to students with disabilities. Moreover, it would undermine long-settled expectations, both by students with disabilities and their schools, about what accessibility requires. Elementary and secondary schools, especially in middle and high school, are moving more and more into hosting their educational materials online as part of the curriculum, especially since the COVID-19
pandemic. So password-protected course content and collaboration in elementary and secondary school is becoming more and more common. See, for example, Fairfax County Public Schools (https://www.fcps.edu/academics), which has an online system of student records (SIS) for parents for all grades and for students in middle and high schools, as well as a mobile app, and a learning management system (Schoology) for students and parents in all grades, as well as a mobile app. Even small districts, such as Caroline County, Maryland (https://www.carolineschools.org/page/powerschool), offer password-protected portals to share information with parents and students.

This exception allowing new course content to be inaccessible if it is only available to students will be a barrier to every single student with a relevant disability. Instead of being able to assume new course content is born accessible, they will be relegated to after-the-fact accessibility, which is more difficult, more time consuming, and less effective. Such after-the-fact accessibility policies have been demonstrated to be ineffective time after time in the past. They routinely leave students with disabilities without course materials on a timely basis, with no effective way to collaborate with their peers, and with, at best, awkward work-around solutions that are only partially effective. In addition, schools are more likely to find remediation of new content to be more difficult than it would have been to make it accessible in the first place, leading to increased reliance on the undue burden exception of the existing regulation.

In addition, the exception will muddy the waters and be unenforceable. Because students with disabilities must exhaust IDEA administrative remedies before pursuing ADA enforcement, there will be no way for students to timely demand access to inaccessible course materials.
Further, this will harm parents with print disabilities – leaving them out of their children’s education unless they find a way to notify the right people at their child’s school of their disabilities and need for accessibility. There is generally no mechanism for doing so. And, for new content, there should be no need to self-identify as having a disability. In addition, this exception will result in delays in getting accessible materials to parents with disabilities. Although the Department apparently assumes, incorrectly, that some amount of educational delay is acceptable for students, notices to parents often require immediate action, such as permission slips for events and notices involving misbehavior or dangers at school.

Question 38: How do elementary and secondary schools communicate general information and class- or course-specific information to students and parents?

It is done also via a learning management system maintained by the educational institution as described in Question 29, but the only difference is that parents are included along with the students.

Question 39: The proposed exception and its limitations are confined to content on a password-protected or otherwise secured website for students enrolled, or parents of students enrolled, in a specific class or course. Do public elementary or secondary schools combine and make available content for all students in a particular grade or certain classes (e.g., all 10th-graders in a school taking chemistry in the same semester) using a single password-protected website and, if so, should such content be included in the exception?

In situations where public schools place an entire grade’s curriculum in a password-protected portal, such content should not be subject to any exception. This should be treated as information provided to the entire student body, not a specific course.

Question 40: Do elementary and secondary schools have a system allowing a parent with a disability to provide notice of their need for accessible class or course content?

Most public elementary and secondary schools appear to have no mechanism for a parent to request accommodations at all, and particularly not for access to their portals and learning management systems. The opening pages of those portals/LMS ask only for the login information and provide no information on accessibility or means to request accommodation. The closest option is to follow the link for technical support, which generally has no information about accessibility.

Question 41: On average, how much content and what type of content do password-protected websites of public elementary or secondary school courses contain? Is there content posted by students or parents? Should content posted by students or parents be required to be accessible and, if so, how long would it take a public elementary or secondary school to make it accessible?

Many LMS allow, and even encourage, parents and students to post content and collaborate. Some already have tools for posters to make their content accessible (See, e.g., https://uc.powerschool-docs.com/en/schoology/latest/accessibility-checker). Moreover, most content posted by students and parents is in the form of text only, which is generally accessible without any additional intervention. In order for students with disabilities to have equal access to the learning taking place in these LMS, such content should be required to be accessible. Accessibility can be accomplished by limiting student/parent content to text-based content that is born accessible. Alternatively, schools could require posters to make their content accessible and provide tools for doing so. Or schools could take the responsibility for making posted content accessible prior to posting.

Question 42: How long would it take to make class or course content available on a public entity’s password-protected or otherwise secured website for the particular class or course accessible, and does this vary based on the type of course? Do parents and students need access to class or course content before the first day of class? How much delay in accessing online class or course content can a student reasonably overcome in order to have an equal opportunity to succeed in a course, and does the answer change depending on the point in the academic term that the delay occurs?

It should not take any time to make new course content accessible because it should be accessible from the beginning. In the absence of this exception, content would be born accessible and would not need to involve the waste of time and energy for remediation that this exception requires. Students with disabilities should not have to bear the burden of a public school’s decision to delay accessibility. Students with disabilities should be entitled to accessible password-protected course materials at the same time they are made available to nondisabled students, including before the first day of class.

Most inaccessible documents, such as word processing, PDF, and presentation formats, can be made accessible easily and quickly–in minutes–using standard accessibility tools available through Microsoft, Adobe, Google, and others. Therefore, no delay should generally be permitted. Generally, even when a student joins a class after it begins, the materials available for the course should be accessible by the time of the next class meeting. Rather than imposing a generic time limit, such a class-meeting-based time limit would ensure that a student did not miss the materials for more than the number of classes she missed by enrolling late. Thus, a student enrolling after the first class of a course that meets twice a week would be able to catch up by the second class, just as her nondisabled classmates can. This is particularly essential for elementary school classes, where classes are by grade, rather than by course title (e.g., all 2nd graders). For these students, delay of accessible materials should not be more than one day.

For unconventional, scanned, or extremely lengthy documents, the school already has the undue burden defense to address any inability to prepare the accessible materials that quickly and does not need an inflexible, likely unworkable, time period.

Question 43: To what extent do public elementary or secondary schools use or offer students or parents mobile apps to enable access to password-protected class or course content? Should the Department apply the same exceptions and limitations to the exceptions under proposed § 35.201(f) and (f)(1)-(4), respectively, to mobile apps?

Most learning management systems offer apps, and more and more students are using their mobile devices to access course materials and complete assignments. Therefore, course content offered through mobile apps should be required to be accessible, without any exception for password-protected content.

Question 44: Should the Department consider an alternative approach, such as requiring that all newly posted course content be made accessible on an expedited timeframe, while adopting a later compliance date for remediating existing content?

Yes. The Department should implement a different approach, recognizing that new content can easily be born accessible or made accessible. Requiring it to be accessible from the beginning is the only way to allow students with disabilities a chance to eventually have equal access to education. Therefore, there should be no exception for content being posted for the first time to a particular password-protected course or content which has been altered before being reposted to a password-protected course. Public elementary and secondary schools should have an additional six months to remediate existing content on their password-protected course sites. In the meantime, they should be required to remediate existing content whenever a student with a known relevant disability enrolls in the course. Remediation of preexisting content upon enrollment of a student with a relevant disability should be accomplished either (1) by the time materials are made available to nondisabled students, for a student with a disability who enrolls in the class during regular enrollment, or (2) by the time of the next class meeting, for a student with a disability who enrolls after regular enrollment.

Exception 7: Conventional Electronic Documents that are About a Specific Individual, Their Property, or Their Account and that are Password-Protected or Otherwise Secured

The National Federation of the Blind urges that this exception be eliminated.

In accordance with current law, many of the documents covered by this exception are already made accessible by state and local governments. The introduction of this exception by the proposed rule would encourage those same public entities to utilize this easy way out of making the individualized documents accessible.

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? How do people with disabilities currently access such documents?

State and local governments often make individual property tax, pet license, utility, and other bills available online through password-protected websites, such as Arlington County, Virginia’s system at https://capp.arlingtonva.us/_/. In addition, governments provide vehicle registration information, parking and moving violation information, and other information online. Some of these systems use HTML formats. Others use conventional electronic documents such as PDF. It would not be difficult to make the vast majority of these simple text documents accessible from the beginning as a matter of course. Pursuant to current law, many of these documents are already accessible, so people with print disabilities access them using access technology. For those that are not accessible, people with disabilities must rely on third parties to read their documents, attempt to request accessible formats, or pursue legal action.

Question 46: Do public entities have adequate systems for receiving notification that an individual with a disability requires access to an individualized, password-protected conventional electronic document? What kinds of burdens do these notification systems place on individuals with disabilities and how easy are these systems to access? Should the Department consider requiring a particular system for notification or a particular process or timeline that entities must follow when they are on notice that an individual with a disability requires access to such a document?

State and local government entities generally provide no means for a resident to notify them of the need for accessible documents, either on the login pages of their password-protected portals or elsewhere. The most they generally provide is a contact person from whom to request accommodations for meetings or hearings. If this ill-advised exception were to remain in place, it is essential that there be a clear and accessible mechanism, on the front page of the portal and throughout the online system, to request accessible versions of the provided documents. Moreover, because these are often bills and other time-sensitive matters, it is essential that state and local governments be required to provide accessible format documents quickly and in advance of any deadline for the documents. In addition, once a request is made, the public entity should provide a means such that no further individualized requests from that person with a disability are required and all future notices or documents sent to that individual are automatically delivered in an accessible format. The Social Security Administration, Internal Revenue Service, and several state benefits agencies have demonstrated examples of such an opt-in approach to default accessible formats.

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

This exception would be a step backward for people with disabilities. Just when they are beginning to make progress and government bills and other information is finally available in formats that are easily made accessible, this exception would reverse course and allow those easy formats to be inaccessible.

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?

This rule should apply equally to mobile apps. As more and more entities turn to mobile apps to provide their information and services, it is important that accessibility keep up. Mobile apps offer greater flexibility and better formatting for the plethora of devices people use instead of computers. Mobile apps also often offer different features and benefits than websites. For example, the Washington Metropolitan Area Transit Authority offers a SmarTrip app that provides benefits not available through its website (See, e.g., https://www.wmata.com/fares/MobilePay/). Colorado’s app also offers features not available through the website https://mycolorado.state.co.us/.

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?

Use of conforming alternate versions should be limited to those few situations where accessibility is not possible. However, one example given by the Department–copyright–is not such a situation, as the Chafee Amendment and Fair Use Doctrine to the United States Copyright laws make it possible to make copyrighted material accessible (https://webaim.org/articles/laws/usa/chafee).

General Questions

Question 1: The Department’s definition of “conventional electronic documents” consists of an exhaustive list of specific file types. Should the Department instead craft a more flexible definition that generally describes the types of documents that are covered or otherwise change the proposed definition, such as by including other file types (e.g., images or movies), or removing some of the listed file types?

We fundamentally disagree that any file type should be granted a categorical exception. For example, the regulation cites word processing, presentation, and spreadsheet documents as a candidate for a categorical exception. This is inconceivable and inappropriate. Each of these file types can, and frequently are, made accessible with relative ease. Substituting a functional definition is equally as inappropriate. Given the existing exemptions for undue burden and fundamental alteration, this newly proposed exception is wholly unnecessary.

Question 2: Are there refinements to the definition of “web content” the Department should consider? Consider, for example, WCAG 2.1’s definition of “web content” as “information and sensory experience to be communicated to the user by means of a user agent, including code or markup that defines the content’s structure, presentation, and interactions.”

While we understand the desire to make the definition more understandable to the general public, we discourage any effort to create an alternative definition regarding digital accessibility in the regulation. We believe a possible solution to this would be to maintain the WCAG 2.1 definition of “web content” within the rule itself and use the Department’s proposed definition for future technical assistance documents. This solution would ensure harmony between the WCAG 2.1 definition and the official Department definition in the rule, while allowing for a more approachable definition in documentation about the requirements set forth in the rule.

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? If so, what is a reasonable time frame for State and local compliance with WCAG 2.2 and why? Is there any other standard that the Department should consider, especially in light of the rapid pace at which technology changes?

Yes, if WCAG 2.2 is finalized prior to the publication of the Department’s final rule, it should be used. WCAG 2.2 will add a number of new success criteria, such as accessible authentication. Additionally, the Department should institute a process to update the rules to the current version of WCAG, for example every five years, and potentially evaluate if there are any other rules that should be adopted.

Question 4: What compliance costs and challenges might small public entities face in conforming with this rule? How accessible are small public entities’ web content and mobile apps currently? Do small public entities have internal staff to modify their web content and mobile apps, or do they use outside consulting staff to modify and maintain their web content and mobile apps? If small public entities have recently (for example, in the past three years) modified their web content or mobile apps to make them accessible, what costs were associated with those changes?

Tools exist to make the cost of website accessibility negligible. Furthermore, even very small entities will have to make updates to keep up with modern technological advances. If accessibility is integrated during those updates rather than as an afterthought, the cost is made even more insignificant.

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

No. The WCAG AA standard is commonly accepted, regardless of the site’s complexity or business size. Decreasing the level of conformance would negatively impact accessibility overall.

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 regularly use social media to communicate announcements and policy, advocate positions, and advertise programs and events. Additionally, public agencies and officials use social media for constituent engagement, building awareness around initiatives, and crisis communications. Public entities also engage with other public entities, otherwise known as “boosting” each other’s content.
Barriers that disabled people encounter include, but are not limited to:

• Generally, blind and disabled people use social media and do engage with content. However, platforms are not regulated for accessibility and are constantly changing with updates. Therefore, accessing the platforms themselves can be a major barrier.
• When people can engage with a public entity’s social media, inaccessible content is often shared from the public entity accounts. For example, public statements are posted as an image with no alt text or link to a statement. A second example is advertising of public events with an inaccessible flyer and no alt text.
• Entities may post videos that are inaccessible. For example, videos with only music as audio and text on the screen, and no transcript or description.

Lack of alt text (image descriptions) is a major issue on social media. Images are highly engaging generally; however, many public entities lack substantial image descriptions. For example, either there is no alt text, or the alt text is more of a file name and does not describe what is in the picture or what the picture is meant to communicate.

Question 7: How do public entities use mobile apps to make information and services available to the public? What kinds of barriers do people with disabilities encounter when attempting to access public entities’ services, programs, and activities via mobile apps? Are there any accessibility features unique to mobile apps that the Department should be aware of?

Please refer to our answer to Question 23. Many of the services described there apply equally to mobile apps, and in some cases the app is the only (or preferred) method to access the services or information. If the app is not accessible, it creates a barrier to the corresponding information or service. Mobile apps are uniquely able to provide time-sensitive, location-based services directly to the user such as emergency alerts, school closure information, public transportation delays, etc.. If that information is not made accessible, people with disabilities may miss important instructions that could impact our safety.

Question 8: Is WCAG 2.1 Level AA the appropriate accessibility standard for mobile apps? Should the Department instead adopt another accessibility standard or alternative for mobile apps, such as the requirements from section 508 discussed above?

WCAG 2.1 AA is the appropriate accessibility standard. If WCAG 2.2 has been published in time to incorporate it into the final regulation, then we would support its inclusion.

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

The proposed compliance date negatively affects people with disabilities to the extent that each day without adequate enforcement is a day when disabled people are being discriminated against on the basis of our disabilities. Disabled people who live in rural communities are more likely to live in counties with small population sizes, and so will be discriminated against for longer, with less access to alternative services, and possibly with disproportionately more adverse outcomes as a result.

Question 50: What should be considered sufficient evidence to support an allegation of noncompliance with a technical standard for purposes of enforcement action? For example, if web content or a mobile app is noncompliant according to one testing methodology, or using one configuration of assistive technology, hardware, and software, is that sufficient?

We believe that the major operating systems, browsers, and screen-reading software should be tested in conjunction with one another. We appreciate that testing with every imaginable hardware and software solution is unreasonable. Regardless, testing with Voiceover on MacOS and IOS using Safari, JAWS and NVDA on Windows using Edge, Chrome, and Firefox, and Talkback on Android using Chrome should be sufficient for the vast majority of users. If an agency finds that its website works best with one system over another, it can clearly state as much, but cannot rely on blind people having access to that configuration and must continue to make improvements to the website as soon as possible. Websites that are not accessible with JAWS or NVDA on Windows or Voiceover on MacOS will absolutely fall short of compliance standards, as virtually all screen-reader users use at least one of these tools on their computers.

Question 51: In evaluating compliance, do you think a public entity’s policies and practices related to web and mobile app accessibility (e.g., accessibility feedback, testing, remediation) should be considered and, if so, how? For example, should consideration be given to an entity’s effectively working processes for accepting and addressing feedback about accessibility problems; using automated testing, manual testing, or testing by people with relevant disabilities to identify accessibility problems; and remediating any accessibility problems identified within a reasonable period of time according to the entity’s policies, and if so, how? How would such an approach impact people with disabilities?

No. An entity’s website must comply with the final rule. If it does not comply, then it will be considered in violation, which means the entity will be open to litigation. The purpose of the regulation must be to define the standard needed to achieve compliance. Any ideas or strategies detailing best practices must be relegated to technical guidance documents and do not have any place within the final rule.
Question 52: If you think a public entity’s policies and practices for receiving feedback on web and mobile app accessibility should be considered in assessing compliance, what specific policies and practices for feedback would be effective?
While an entity’s policies for assessing feedback should not be considered in a determination of that entity’s compliance, feedback should still be taken to address any accessibility issues that may be unknown to the entity. Feedback should be taken by webform submission and by phone. An efficient internal process should be in place so that feedback is immediately processed, forwarded to the accessibility team, and remediated.

Question 53: If you think a public entity’s web and mobile app accessibility testing policies and practices should be considered in assessing compliance, what specific testing policies and practices would be effective? For example, how often should websites and mobile apps undergo testing, and what methods should be used for testing? If manual testing is required, how often should this testing be conducted, by whom, and what methods should be used? Should the Department require public entities’ websites and mobile apps to be tested in consultation with individuals with disabilities or members of disability organizations, and, if so, how?

Please refer to our answer to Question 51 above. We reiterate that there is a significant difference between defining a standard for compliance and providing advice on best practices. The final rule is where the Department should establish the standard that must be met in order for an entity’s website or mobile app to be considered compliant.

Question 54: If you think a public entity’s web and mobile app accessibility remediation policies and practices should be considered in assessing compliance, what specific remediation policies and practices would be effective? Should instances of nonconformance that have a more serious impact on usability—because of the nature of the nonconformance (i.e., whether it entirely prevents access or makes access more difficult), the importance of the content, or otherwise—be remediated in a shorter period of time, while other instances of nonconformance are remediated in a longer period of time? How should these categories of nonconformance be defined and what time frames should be used, if any?
Please refer to our answers to Questions 51 and 53 above.

Question 55: Should a public entity be considered in compliance with this part if the entity remediates web and mobile app accessibility errors within a certain period of time after the entity learns of nonconformance through accessibility testing or feedback? If so, what time frame for remediation is reasonable? How would allowing public entities a certain amount of time to remediate instances of nonconformance identified through testing or feedback impact people with disabilities?

The National Federation of the Blind unequivocally objects to the concept of notice and cure. We define notice and cure as any instance where an entity is in violation of the law, but is considered to be in compliance until they are notified, at which point the entity is given a predetermined amount of time to resolve the issue before it is penalized.

Question 56: Should compliance with this rule be assessed differently for web content that existed on the public entity’s website on the compliance date than for web content that is added after the compliance date? For example, might it be appropriate to allow some additional time for remediation of content that is added to a public entity’s website after the compliance date, if the public entity identifies nonconformance within a certain period of time after the content is added, and, if so, what should the remediation time frame be? How would allowing public entities a certain amount of time to remediate instances of nonconformance identified in content added after the compliance date impact people with disabilities?

Web content must be accessible to disabled people at the same time it becomes accessible to our non-disabled peers. Any deviation to this timeliness is discrimination on its face.

Question 57: What policies and practices for testing and remediating web and mobile app accessibility barriers are public entities or others currently using and what types of testing and remediation policies and practices are feasible (or infeasible)? What types of costs are associated with these testing and remediation policies?

A quality testing and remediation framework should involve both automated (using code analysis tools, contrast checker, etc.) and manual testing (testing with a screen reader by a trained individual, low-vision testing, testing with other input methods, etc.). Testing at all stages of the process, along with security, functionality, etc. will help to make sure that found issues can be remediated efficiently. Testing in this manner will also keep costs down.

Question 58: In evaluating compliance, do you think a public entity’s organizational maturity related to web and mobile app accessibility should be considered and, if so, how? For example, what categories of accessibility should be measured? How should maturity in each category be assessed or demonstrated (i.e., what should the levels of organizational maturity be and what should an entity be required to do to attain each level)? What indicators of organizational maturity criteria would be feasible for public entities to attain? How would an approach that assesses organizational maturity for purposes of demonstrating compliance impact people with disabilities? Would such an approach be useful for public entities?

No. The purpose of the regulation must be accessibility and compliance to an established standard, not organizational maturity. Additionally, compliance must not be confused with guidance. Please refer to our answers to Questions 51 and 53 above.

Question 59: If you think a public entity’s organizational maturity should be considered in assessing compliance, what level of organizational maturity would be effective? For example, if an organizational maturity model has ten categories, should an entity be required to attain the highest level of maturity in all ten? Should an entity be required to sustain a particular level of organizational maturity for a certain length of time?

Please refer to our answer to Question 58 above.

Question 60: Should a public entity be considered in compliance with this part if the entity increases its level of organizational maturity by a certain amount within a certain period of time? If so, what time frame for improvement is reasonable, and how much should organizational maturity be required to improve? How would an entity demonstrate this improvement? How would allowing public entities a certain amount of time to develop organizational maturity with respect to accessibility impact people with disabilities? Would requiring public entities to improve their organizational maturity over time be effective?

Please refer to our answer to Question 58 above.

Question 62: Should the Department address the different level of impact that different instances of nonconformance with a technical standard might have on the ability of people with disabilities to access the services, programs, and activities that a public entity offers via the web or a mobile app? If so, how?

The goal of this regulation should be to ensure that web content communicates as effectively with people with disabilities as it does with nondisabled people. Some elements of a website may be non-communicative or non-substantive and may not interfere with access to and use of the website. The Department should address the different level of impact that different types of nonconformance have by limiting compliance obligations to website elements that are communicative and substantive and that affect an individual with a disability’s ability to access the same information, engage in the same interactions, and enjoy the same programs, services and activities as people without disabilities with substantially the same timeliness, privacy, and ease of use.

Question 63: Should the Department consider limiting public entities’ compliance obligations if nonconformance with a technical standard does not prevent a person with disabilities from accessing the services, programs, and activities that a public entity offers via the web or a mobile app? Should the Department consider limiting public entities’ compliance obligations if nonconformance with a technical standard does not prevent a person with disabilities from accessing the same information, engaging in the same interactions, and enjoying the same programs, services, and activities as people without relevant disabilities, within similar time frames and with substantially equivalent ease of use? Should the Department consider limiting public entities’ compliance obligations if members of the public with disabilities who are seeking information or services from a public entity have access to and use of information and services that is comparable to that provided to members of the public who are not individuals with disabilities? How would these limitations impact people with disabilities?

Because the goal of the regulation should be effective communication, and not technical compliance with WCAG 2.1 Level AA, liability should be limited to those elements of a website that are communicative and substantive, i.e., those that affect an individual’s ability to access the same information, engage in the same interactions, and enjoy the same programs, services, and activities as people without disabilities with substantially the same timeliness, privacy, and ease of use. This would allow some technical noncompliance and limit liability to those website elements that actually affect communication and use of the website. Limiting the obligation merely to those elements that “prevent” a person with a disability from accessing the programs, services, or activities of the local government would allow too much inaccessibility and force people with disabilities to use awkward, substandard workarounds to gain access but would prohibit liability as long as those workarounds, no matter how difficult, delaying, and unequal, provide some access to the underlying program.

Question 64: Should the Department adopt percentages of web or mobile app content that need to be accessible or other similar means of measuring compliance? Is there a minimum threshold below 100 percent that is an acceptable level of compliance? If the Department sets a threshold for compliance, how would one determine whether a website or mobile app meets that threshold?

A percentage is not a good metric of accessibility for several reasons. A percentage will not reflect the impact of the identified barriers on the effectiveness of the website's accessibility. A website might have very few errors, but one of them may be the "PAY" button, making the entire website essentially unusable. On the other hand, a website may have a lot of technical errors that are non-substantive.

Question 65: When assessing compliance, should all instances of nonconformance be treated equally? Should nonconformance with certain WCAG 2.1 success criteria, or nonconformance in more frequently accessed content or more important core content, be given more weight when determining whether a website or mobile app meets a particular threshold for compliance?

The overarching goal of this regulation should be to ensure that web content communicates as effectively with people with disabilities as it does with nondisabled people. Additionally, it should be to ensure that the means to access that content for people with disabilities provides the same timeliness, privacy, and ease of use as it does for nondisabled people. While conformance with WCAG 2.1 success criteria is a well-defined means to achieve both of these goals, it should not be the goal itself. Placing greater emphasis on those elements that are “more frequently accessed” would allow too much inaccessibility in lesser used, but equally important, areas of an entity’s website and force people with disabilities to use awkward, substandard workarounds to gain access to areas that nondisabled people can access with ease.

Question 66: How should the Department address isolated or temporary noncompliance with a technical standard and under what circumstances should noncompliance be considered isolated or temporary? How should the Department address noncompliance that is a result of technical difficulties, maintenance, updates, or repairs?

An isolated noncompliance would be an issue that is not indicative of the rest of the site: a single unlabeled field in a large form or group of forms or an individual graphic missing alt text in a number of them. A single page on a site of one thousand pages with issues could be considered isolated, whereas one page out of a site with five pages would likely not be considered isolated. A temporary noncompliance would be one that was recently introduced via an update and was promptly fixed.

Question 67: Are there any local, State, Federal, international, or other laws or policies that provide a framework for measuring, evaluating, defining, or demonstrating compliance with web or mobile app accessibility requirements that the Department should consider adopting?

WCAG is both the domestic and international standard for comprehensive digital accessibility, and we support using WCAG 2.1 AA (or WCAG 2.2 if it is published before the final rule) as the accessibility standard for this rule.

The broader aspects of the NPRM that we are agreeable to are the compliance timeline for small (less than fifty thousand residents) and large (greater than fifty thousand residents) public entities, and the establishment of the Web Content Accessibility Guidelines (WCAG) 2.1 as the accessibility standard.

Regarding the adoption of WCAG 2.1 as the accessibility standard, we are pleased with this requirement. WCAG 2.1 is the current industry standard for digital accessibility, therefore it is reasonable and appropriate for the DOJ to establish it as the required accessibility standard for web and mobile applications. We would like to make one suggestion, which is to require public entities to continue to meet WCAG standards as they evolve beyond version 2.1. For example, if WCAG 2.2 is published before the publication of the Department’s final rule, then we would support its inclusion as the current accessibility standard. Technology changes from day to day. It would make sense for public entities to change with it in order to meet the standard of what is deemed accessible both now and in the future.

The National Federation of the Blind again appreciates the opportunity to comment on the ADA Title II Website Accessibility NPRM, and we look forward to a more accessible future going forward. If there are any further questions, or if we can be of assistance in any way, please do not hesitate to contact us.

Sincerely,
Mark A. Riccobono, President
National Federation of the Blind

 

The above information is from our National office.