NACo Analysis: U.S. Department of Justice Final Rule on Web Accessibility for State and Local Governments

Key Highlights of the Final Rule

• Counties will be required to comply with the Final Rule’s web accessibility technical standards within a 2-3 year timeline
• Goal of the Final Rule is to promote accessibility of online government services and resources in concert with the Americans with Disabilities Act (ADA)
• Covered content includes all text, video, audio, website layout and design, future social media posts, and documents hosted on the county’s website
• Limited exceptions include third party content, archived documents, and pre-existing social media

DOJ defines web content as content provided or made available, directly or through contractual, licensing, or other arrangements, that is readily accessible to and usable by individuals with disabilities. This includes text, images, sounds, videos, controls, animations and conventional electronic documents.

Web content covered under the Final Rule includes:

• County information on a website and/or mobile application(s)
• Services offered on a website and/or mobile application(s)
• Social media posts on third-party platforms
• Third-party tools and resources hosted on a county’s website
• County services offered through a third party platform

The Web Content Accessibility Guidelines (WCAG) 2.1, published in June 2018, will be the basis for compliance. The WCAG 2.1 Level AA Success criteria and conformance requirements will be mandatory for compliance.

The following content is exempt from compliance:

• Archived web content that:
  • Was created before the date the required compliance date
  • Reproduces paper documents created before the required compliance date
  • Reproduces the contents of other physical media created before the required compliance date
  • Is retained exclusively for reference, research or recordkeeping
  • Is not altered or updated after the date of archiving
  • Is organized and stored in a dedicated area or areas clearly identified as being archived

A county is still obligated to make archived content accessible on a case-by-case basis in relation to existing Title II obligations.

Example: If an individual requests an accessible copy of a partial recording of a commissioners’ meeting, the county would be required to provide an accessible format.

• Pre-existing conventional electronic documents (unless such documents are currently used to apply for, gain access to or participate in the county’s services, programs or activities)

  Conventional electronic documents are digital documents that are about a specific individual, their property or their account and that are password protected or otherwise secure.

  Example: Many utilities may offer password account access to individual utility bills. Public hospitals may also offer a virtual platform where healthcare providers can send conventional electronic documents of test results to patients.

  These documents are excepted from compliance to the extent that such compliance would be overly burdensome. The need can be better addressed through existing Title II obligations, including to make accessible by request such documents by the individual who needs them.

• Content posted by a third party, (unless the third party is posting due to contractual, licensing or other arrangements with the county)

  Third party content can include or link to many different types of content created by someone other than the public entity, some of which is posted by or on behalf of public entities and some of which is not.

  Content posted by third parties on a county’s website can be accepted if it does not pertain to any affiliation, or contractual or licensed arrangement, with the county.

  Example: Courts receive a high volume of document submissions annually, often by third parties unaffiliated with the county. Such documents do not need to be accessible upon submission as a requirement; however, counties must still meet existing Title II obligations.

• Conventional electronic documents about a specific individual, their property or their account (and that are password-protected or otherwise secured)

  Conventional electronic documents are web content or content in mobile apps that are in the following electronic file formats:

  • Portable document formats (“PDF”)
  • Word processor file formats
  • Presentation file formats
  • Spreadsheet file formats

  Example: If a county moves all files to a new Content Management System, without editing files uploaded prior to the compliance date in the above formats, they would still be considered excepted.

  If edits were made to the documents, or if they are considered actively a part of a county’s activities, programs or services, they would be considered covered by the rule.

• Pre-existing social media posts, which include any social media posts that were posted by the county before the effective compliance date imposed by the Final Rule.

  Example: The county hosts a parade every year, and past social media posts include photographs from the parade and other then-current information. The county would not be required to retroactively make these posts accessible.

  Social media posts going forward after the date of compliance will be required to use the full suite of accessibility resources. The public entity will be required to make accessible all social media posts to the greatest extent possible provided by the medium.

Please Note: This may not preclude a county from needing to make accessible any piece of content if requested by a specific individual to comply with the entity’s existing obligations under other regulatory provisions implementing Title II of the ADA.

To begin the implementation process to comply with the Final Rule, NACo encourages county officials and staff to:

• Survey all departments and create an internal asset map of existing and new services offered online directly, or through contractual or licensing arrangements, to the public
• Add language to proposed contracts, bids and products specifications referencing required adherence to the WCAG 2.1 Level AA standard
• Review existing assets and audit for compliance to accessibility – develop a strategy for improving accessibility in the near term and assess cost to the county
• Develop an inventory of all public-facing applications and services and test them for compliance
• Consider resource development and staff training devoted to the new accessibility guidelines
• Start checking your compliance level now

Disclaimer: The FAQs listed below were developed by NACo staff and are not included in the Final Rule or provided by the U.S. Department of Justice.