Last week was a busy week at Converge. A lot of action has been happening with state and local governments. Towards the beginning of the week, however, Colorado's Office of Information Technology (OIT) dropped a bombshell by releasing an early draft of their proposed amendments to their accessibility rule. As a reminder, Colorado's HB 21-1110 and 24-1454 require Colorado public entities to meet WCAG 2.1 A/AA by July 1, 2025. That said, they also deferred to OIT to create the final rules for exactly what that implementation means. This means that the key measure is meeting OIT's rules by July 1, 2025-- even if that means something less than full WCAG conformance.
As we work with a lot of Colorado entities in addition to public and private entities around the world, we had to stop what we were doing and help our clients out by suggesting feedback on the proposed rules where those rules created substantial burdens on local governments. We also identified several places where the proposed rules may negatively impact people with disabilities in accessing government programs, services, or activities.
What Do the Amended Rules Say?
OIT's original rule was a pretty amazing compromise between the needs of people with disabilities and the needs of public entities. I've downloaded the current official version of the rule (8 CCR 1501-11) for safekeeping because it may be overridden by the new amendments. OIT's proposed amendments changed a number of elements. I've also downloaded both the strikethrough version and the clean version of the proposed changes. Some of the interesting changes are:
- The proposed rules attempt to align OIT's Accessibility Rule more closely with the ADA Title II Web Accessibility Rule. For instance, it includes some (but not all) of the controversial exceptions found in the DOJ rule.
- Unfortunately, in the process, it also excluded some of the more clever aspects of the original rule, which encouraged public entities to create a plan for accessibility conformance and which drew on important elements from Section 508 of the Rehabilitation Act.
The final mix of additions and deletions left some significant gaps that may affect both local governments and people with disabilities.
What is OIT's Rulemaking Schedule?
We were lucky; we participated in a previous rulemaking and were invited to provide "early stakeholder input" to OIT. This included participating in an online public hearing on March 20th and submitting written comments. After this, OIT will create their proposed rule next-- but they'll have to work fast because they are running on a very tight time schedule:
March 31 - proposed rules released
March 31 to April 30 - stakeholder input
Early May - public rulemaking hearing
Early May - adopt rule amendments
June 30 - rule amendments go into effect
Because June 30 is quite literally on the eve of the July 1 enforcement deadline, this timing seems dangerous. After all, if there is a big gap for public entities, a plaintiff's attorney can take advantage of that gap to sue for money damages.
What Happened at the Public Hearing?
OIT held two sessions on March 20-- one in the morning and one in the afternoon. Because our schedules were already packed, Laura and I could only attend the afternoon session. About a dozen participants made oral comments, which were generally limited to about two or three minutes. I was surprised by the comments made by our friend Curtis Chong, representing the National Federation of the Blind, because his comments were very much in line with the comments made by public entities.
Most of the speakers were concerned that OIT wanted to remove the option for public entities to comply with HB 21-1110 by creating a digital accessibility plan and showing good faith efforts towards compliance with that plan. Almost all of the speakers echoed the same concern that removing that option on the eve of the enforcement deadline hurt public entities because they all rely on that exception and removing it would set them up to immediate litigation. Curtis also mentioned that it would hurt people with disabilities because accessibility requires careful planning-- so public entities should be encouraged to do it.
What Did Converge Have to Say?
Laura and I both testified. We agreed that removing the "plan option" at the last minute was unfair to public entities. Even though that option wasn't in Title II (perhaps the reason OIT removed it), it was important because it helped public entities more clearly articulate what was beyond that plan-- and potentially constituted an undue burden.
Because Laura and I have a long history working with Section 508 of the Rehabilitation Act, we both focused our remarks on why the "best meets" option for compliance (which was also removed from this draft) was critical for governments because it gave them a practical way of buying the most accessible product accessible. I focused on this from the federal government perspective-- requiring agencies to always buy the product that "best meets" WCAG has been an effective and proven model and the federal government has tons of material for making this easier. Laura focused on the "best meets" requirement as a worldwide best practice for governments interested in improving access to their residents. It's a model that's been adopted by the World Economic Forum, the European Union, and governments around the world to achieve digital accessibility.
I also mentioned that OIT's revision to its "undue burden" provision further complicated the proposed rule. Currently, under both the Title II web rule and the current OIT accessibility rule, when a public entity cannot fully meet WCAG because doing so would constitute an undue burden, they still must conform with WCAG to the extent that doing so does not impose an undue burden. Perhaps by oversight, this language was removed from the proposed rule. I said that this meant that public entities would have no incentive to pursue accessibility at all once they realized full compliance wasn't possible. In her comments, Laura mentioned that few if any commercially available products fully met WCAG, so this means that public entities would never have to make anything accessible. In summary, this meant that the proposed rule would "create confusion, heighten legal risk, and reduce accessibility for people with disabilities."
OIT recorded the session, but here are the speaking notes that I roughly stuck with during my brief oral comments. Also, here is a copy of the longer written comments that we submitted to OIT. We also included a number of other suggestions for cleaning up or correcting the proposed draft.
What Will the Next Draft Look Like?
It's hard to say what the next draft will look like. I think that OIT will bring back the "plan option" as a means of compliance because so many presenters (even Curtis) said that they liked it-- and that removing it now would be unfair. I also think that they will include my suggestions on undue burden because it likely was just an editing oversight on their part.
As I think back about it, I think I'd like to see OIT just keep its existing rule and fold in the five exceptions that DOJ included in its Title II web accessibility rule. I previously mentioned that I don't love these exceptions-- particularly, the exception for individualized, password-protected electronic documents-- but they are the law now and it only makes sense to let Colorado entities use the same exceptions. But I would leave it at that and not do anything else to the rule.
But what about the uncertainty around undue burden? At most, I would say that the OIT rules should just include language from the ADA Title II web accessibility rule-- and OIT has done a lot of that in the current draft. For anything that goes beyond what DOJ says in its rule, however, I would suggest that OIT only offers this as technical assistance accompanying the rule. After all, anything that they get wrong would create incongruities with the same undue burden defense that public entities will use when defending an ADA compliant for the same violation.
What about exhaustion of remedies? After all, HB 21-1110 authorizes $3,500 per violation, so Colorado public entities should have the right to try to resolve the complaint first before a lawsuit can be filed. At the federal level, agencies can't usually slip in this kind of requirement if the legislature didn't authorize it-- but Colorado administrative law may be very different. While we didn't take a position on this idea in our comments, it does make sense-- if OIT is authorized to do it-- but this should be developed with more participation from the public to determine what constitutes a fair grievance process for all parties.
I've got a pretty good track record predicting what will happen with rules and legislation. But I've been wrong before. We'll see what OIT comes up with. Whatever they do, it won't take place in a vacuum and there will be a lot of people watching them.
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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