On January 8, our friends at the Disability Rights Section issued new guidance, State and Local Governments: First Steps Toward Complying with the Americans with Disabilities Act Title II Web and Mobile Application Accessibility Rule. Of course, this was shortly before the change of Administration and, unfortunately, I think it will be some time before we see more helpful guidance from the DOJ. Thanks to our friends at Seyfarth Shaw for spotting this one.
This post reviews the good and the bad in the guidance. While complying with the new rule is required, nothing in the new guidance document is mandatory. Instead, the document is intended as high-level guidance to help state and local governments comply with the new regulation.
As a DOJ enforcement attorney, I used to negotiate settlement agreements and expect state and local governments to figure out a way to comply with the terms. Now, as a consultant, I have to work with those governments to make it happen. I sometimes get involved with litigation to help both sides understand the practical implications of their requests and sometimes propose alternatives that are easier to meet yet provide even greater levels of accessibility. Our team has also been working a lot with Colorado entities, which face slightly different pressures under their stringent state law, Colorado's HB 21-1110. This post combines these perspectives.
I am also following the same "action steps" that DOJ uses for the structure of this post. This is NOT the order of steps that I would normally follow. More on this at the end.
Action Step 1: Learn ALL of the Laws You Need to Comply With
DOJ says that the first thing you should do is to "learn about the rule's requirements" and then links to several useful resources. For most entities, this is great advice. For Colorado entities, this can be dangerous without also understanding Colorado's nuances. For instance; individualized, password-protected documents may be exempt under the ADA regulation, but they are NOT exempt under Colorado law.
Instead, it's important for every state and local government to understand the new ADA Title II regulation AND their state law.
Action Step 2: Know Your Compliance Date But Get to Work Now!
DOJ lays out the fact that state and local governments with populations of 50,000 or more need to comply by April 24, 2026. Special district goverrments and smaller entities get an extra year.
That's great, but people, by their nature, tend to procrastinate. Unfortunately, digital accessibility is a complicated problem that will take years to resolve-- and then will take constant vigilance afterwards. In many ways, it's a harder problem than built environment and program accessibility-- concepts that state and local governments still struggle with more than thirty years after the ADA was passed.
The real reason not to procrastinate, however, is limited resources. Yes, I work in a growing field of digital accessibility, but there simply aren't enough testers or accessibility experts out there. Those resources are going to get snapped up in the next two years so it's best to start now.
Action Step 3: Create Your Team Starting with Legal, IT, and Procurement
I know that DOJ wants to give state and local governments flexibility with the teams that they choose, but simply saying, "Figure out who within your state or local government will have a role in complying with the rule" isn't helpful.
At a minimum, we've found that your internal team has to include your IT, legal, and procurement staff. Without at least these three pillars, you simply won't get the support you need to make your program succeed. You need IT because digital accessibility is ultimately an IT-driven initiative-- just like digital privacy and security. Legal has to be involved because they are the key to organizational buy-in and support. Finally, procurement needs to be involved because they are the gatekeepers of future technology.
Of course, if you can have people from other teams involved, that's great. For instance, HR can help drive training, communications can help create communication plans to ensure everyone is onboard.
Action Step 4: Train Your Staff Intelligently
DOJ next suggests training your staff. It's obvious that staff needs to be trained-- but often so do contractors, volunteers, and vendors.
Training also needs to be done intelligently and specific to job roles. For instance, DOJ recommends "training for web developers and content testers on accessible coding solutions." This is less helpful advice than it sounds because hardly any state and local governments are writing their own code. Yes, they create websites using content management systems (CMS) and prop up complex web applications, but they very rarely (if ever) write any code that affects elements like accordion controls, tab controls, etc. Instead, almost all live within the confines of the rich text editors of these CMSs and affect accessibility in alt text, color contrast, heading order, etc. These are basic concepts that can be taught easily. It is counterproductive to teach these teams accessible coding solutions like ARIA when they will likely never have a chance to use them. Instead, it's their vendors who could use that kind of information.
We tend to like starting with a three-element training program.
- General Training For All Staff. This can be a short training module that describes the needs of people with disabilities in digital technology, explains the new legal requirements, and encourages support.
- Specific Training for Content Creators and Document Authors. This should focus only on the few accessibility elements that these team members can control and outline simple (and free) tools that they can use to easily verify that they got it right.
- Procurement and New Application Training. This should review what needs to be considered when acquiring new technology or upgrading existing technology. Here we believe state and local governments need a risk-based approach to make sure that they very carefully review applications with broader exposure while enabling state and local governments more flexibility when purchasing technology that will not impact the public and their employees.
Action Step 5: Centralize Information About Your Applications
I don't think DOJ has any idea of the complexity of their Action Step 5, "Identify what web content and mobile apps your public entity has." For instance, we work with a large metropolitan city that has over 300 different domains and easily over 1,000 SaaS applications that help it with city programs ranging from library services to registering for special programs for freezing pipes. Worse yet, many state and local governments are stove-piped and don't have any centralized knowledge over any of this information.
I would venture to guess that the majority of state and local governments have uncontrolled IT systems like this. While they may not be quite as large as this example, most still lack centralized control. This problem is, first and foremost, a digital security and privacy nightmare.
Fortunately, the new DOJ regulation can be the hero of the day. With at least one large client, we worked with their IT department to use the new DOJ regulation-- and its clear April 2026 deadline-- Â as an excuse for the highest levels of the organization to demand that every department or agency identify their web applications. The IT department also slipped in a few privacy and security questions and is now using our accessibility efforts as a starting point for avoiding other kinds of disasters down the road.
Action Steps 6 and 7: CAREFULLY Think About Exceptions and Whether You Want to Use Them
DOJ next suggests that you "refresh your understanding of the rule’s exceptions" and "determine which of your web content and mobile apps need to comply with WCAG 2.1 under the rule." DOJ then goes on to list the exceptions for archived web content, preexisting documents, and all of the other exceptions in Section 35.201 of the DOJ rule.
Again, these exceptions may not be available to you under state law. For instance, they aren't available under Colorado law.
Also, we believe that being more accessible is always better-- and that if it isn't that difficult to be accessible, why not try to achieve accessibility? For instance, personalized records like utility bills or medical records won't have to be made accessible under the DOJ rule if they are behind a password-protected login. But these documents also follow a template and could be made accessible once-- and then all documents made with that template will automatically be accessible. This requires an understanding of how PDF documents are made. And this means engaging with PDF vendors, comparing costs, and learning about their capabilities. Thanks to the ADA Title II update and Colorado's state law, vendors are developing newer, easier, and better ways to make accessible content. This means a lot more can be made accessible than before, so you should check with PDF accessibility vendors throughout this process.
Action Step 8: Do Basic Use Case Testing and Identify Barriers and Workarounds
DOJ suggests that you next need to "determine what accessibility fixes are needed." It then goes on to remind state and local governments they need to comply with WCAG 2.1 A/AA.
The unfortunate reality is that full WCAG 2.1 A/AA compliance is an unrealistic pipe dream. Most websites are large, and content is constantly being added and updated, which makes it difficult to guarantee full compliance. Even if the CMS and underlying application were fully accessible, the constant churn and multiple content authors will always be a hard-to-manage variable that introduces inaccessible content. The bigger problem, however, is that few CMS and web applications are accessible at all.
A full WCAG 2.1 A/AA audit is a difficult and expensive process. A basic web application can cost tens of thousands of dollars to test fully. Requiring this level of rigor for state and local governments simply isn't logical because many WCAG violations won't affect the user's ability to access the underlying programs, services, or activities.
A better approach is to perform use case testing based on the way that web applications are implemented on a government's website. This should identify barriers that actually affect users and should classify barriers that are vendor-specific as opposed to the barriers that are introduced by content creators. If your experience is anything like our experience evaluating hundreds of applications, you'll find that almost all of the really difficult barriers are due to vendors. Use case testing is quick and far less expensive. Usually, it shouldn't take a qualified expert more than three hours per application.
Action Step 9: Get Vendors to Fix Their Applications and Keep Good Records of Your Progress
DOJ next suggests that you "prioritize which content to fix first." Instead, I think that prioritization should happen before use case testing and should be based on the importance of the underlying program, service, or activity. It could also be based on the level of web traffic.
Instead, once you have the results of your use case testing, the next step should be reaching out to your vendors and asking them what their plans are for eliminating the barriers. Even if you're a tiny local government, you may be surprised by your vendor's willingness to remove barriers because they have likely received similar requests from dozens of other customers. You may also want to make sure to talk to your legal counsel ahead of time; they may want to request a non-disclosure agreement from the vendor, and you may want to let your attorney oversee the communications to help avoid liability.
Action Step 10: Revise Your Procurement Policies
DOJ's next advises, "identify any relevant contracts with vendors and figure out if they can produce accessible content for you, or if you need to make any changes." It then goes on to suggest requiring vendors to document the accessibility of their products, provide warranties, and test applications.
At a high level, this makes sense but could be more helpful. We think that a more instructive approach is to create a risk matrix that requires higher levels of proof (e.g., accessibility demonstrations, third-party testing, etc) based on the level of exposure of the application. While warranties and documentation can be useful, they may be difficult or impossible to enforce. We've also found that vendors are often willing to make unrealistic promises when they don't understand what accessibility entails and there is a potentially large sale on the line.
Instead, state and local governments need clear procurement processes that focus attention where it matters most. They also need to spell out reliable evidence (and not just vendor assurances) that should be collected when they are making high-impact IT acquisitions. Plus, for higher-risk acquisitions, they also need to create clear processes for identifying the needed documentation and who keeps that documentation. We've found that starting with a smart risk matrix is the only way to make this possible.
Action Step 11: Create policies
DOJ recommends creating policies on web and mobile app accessibility. That seems like good advice. DOJ goes further by providing a few examples and links to resources.
Announcement: Upcoming Workshop on Web Accessibility
Having worked with dozens of state and local governments on digital accessibility, our thinking in this area has evolved based on the practical needs and day-to-day challenges that they face balancing the need for ADA Title II web accessibility compliance with other concerns.
At the outset of this post, I mentioned that the "action steps" of the DOJ’s guidance are NOT the order I would normally follow. The order I would follow will be forthcoming. In a few months, we will be releasing a highly-detailed workshop on what state and local governments can do to achieve web accessibility. It will be designed to give state and local governments everything that they need to start a low-cost, highly-effective digital accessibility plan.
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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