Almost a year after announcing the rulemaking process for the ADA II digital accessibility regulations, on July 25, 2023, the Department of Justice issued a notice of proposed rulemaking. It will soon be posted on the Federal Register website for review and public comment.
According to the announcement, this would help people with disabilities know what their rights are and help state and local governments understand what they must do to comply with the ADA and ensure that their services are accessible to people with disabilities.
After years of litigation, controversial court decisions, corporate and congressional appeals and petitions, the stalled rulemaking process will begin again in 2017.
The history behind the accessibility rules for online materials
The Americans with Disabilities Act (ADA) was signed into law in 1990. At the time, the Internet was a new idea, and no one knew how to integrate it into our daily lives. Thus, the ADA does not specifically mention digital accessibility.
Despite this, the Department of Justice (DOJ) has ruled that websites are "public accommodations," meaning they are covered by the ADA.
In 2003, the DOJ published a notice on the accessibility of state and local government websites for people with disabilities. This meant that government websites should be accessible to people with disabilities without being "rules".
Around 2010, the number of lawsuits regarding digital accessibility began to increase. In recent years, they have risen sharply, with 3,255 digital accessibility lawsuits filed in 2022. Congress and private organizations have filed numerous petitions with the DOJ for clear regulations on websites and digital information. The DOJ has occasionally issued statements supporting the idea that the ADA covers digital accessibility, but no regulations have ever been issued. Companies still don't know how to make websites and digital documents accessible.
In 2010, the Obama administration tried to restart the digital accessibility rulemaking process, but the Trump administration canceled them in 2017. This year, the Defense Department of the Biden administration issued guidance in March and has now taken the next step to announce a digital accessibility process. Organizations should welcome the new rules.
For their part, organizations, businesses, and members of Congress have been demanding clear rules on digital accessibility for years. The large number of lawsuits on this matter (more than 13,000 in the last five years) shows how organizations have failed and do not know how to properly deal with digital accessibility.
Issuing clear rules and policies that define what digital accessibility should look like makes it easier for organizations to comply. The lack of clear direction means that many organizations do not address digital accessibility properly or not at all.
If the regulations are in place, there is no reason not to make websites and digital content available to everyone. What happens next? The Notice of Proposed Rulemaking (NPRM) is now officially published and will soon be available on the Federal Register website. The DOJ is accepting public comments on what the digital accessibility rules should look like. There is usually enough public and detailed comment from interested stakeholders. In this case, the stakeholders include several disability groups. The purpose of the comments provided is to ensure that these regulations meet the needs of people with various disabilities. Public comments must be received no later than 60 days after publication of the rule.
If the regulations are adopted and promulgated, Title III regulations for private entities will likely follow, perhaps as quickly as the current Title II regulations go into effect.
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