New Title II Regulations on Web & Mobile App Accessibility

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

For many years, the U.S. Department of Justice has taken action to ensure that public entities covered under Title II of the Americans with Disabilities Act (ADA) comply with accessibility standards related to both the physical and digital spaces. The ADA Standards for Accessible Design have existed since shortly after the ADA’s passage in 1990, containing explicit accessibility requirements for physical spaces associated with public buildings and facilities. However, the ADA did not reference digital space until recently (April 24, 2024), when its implementing regulations were amended to create a new subpart (subpart H) applicable to services, programs, and activities offered through the websites and mobile applications of public entities.

The new regulations require public entities to ensure that web content and mobile applications (i.e., apps) that the public entity “provides or makes available, directly or through contractual, licensing, or other arrangements” are readily accessible to and usable by individuals with disabilities.1Web content is defined as “the 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.”2 In other words, web content can be thought of as the elements that make up a public entity’s website, such as text, images, sounds, videos, controls, and animations. Mobile apps are defined as “software applications that are downloaded and designed to run on mobile devices” and include both native apps (those built in to the smartphone) and hybrid apps (those downloaded to your device).3

The DOJ has emphasized that “provides or makes available” is not intended to mean that a public entity’s obligations under this subpart only apply to web content that the public entity creates or owns.4 Rather, the accessibility requirements also apply to web content that is operated or furnished by third parties through a contractual, licensing, or other arrangement with the public entity. This might include, for example, a mobile application, run by a third-party vendor, that is used to pay for public parking; or a third-party website that a municipality contracts with to provide an updated list of available public housing. While many public entities expressed concern during the DOJ’s rulemaking process related to their ability to control third party web content, the DOJ has held firm that public entities may not avoid responsibility for the accessibility of web material or mobile apps created by their third-party vendors.

While the new regulations are fairly brief, they incorporate by reference the Web Content Accessibility Guidelines 2.1 (WCAG 2.1). The WCAG 2.1 sets forth extensive standards designed to ensure that web content and mobile applications are accessible to individuals with disabilities, including anyone who uses a wide variety of software or assistive technology devices to retrieve and access web content. The WCAG 2.1, which can be found here, is organized into four foundational principles – perceivable, operable, understandable, and robust – with each principle containing detailed guidance and success criteria. Information technology (IT)
specialists associated with public entities are encouraged to familiarize themselves with these guidelines promptly, as municipalities will need to “comply with both Level A and Level AA success criteria and conformance requirements as specified in the WCAG 2.1” by April 24, 2026, or April 24, 2027, depending on the size of the public entity.5

Notably, the new requirements for web and mobile app accessibility preserve certain defenses generally available under the ADA and its implementing regulations. Specifically, where a public entity can demonstrate that compliance with some aspect of the new regulations “would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens,” compliance is only required to the extent that it does not result in a fundamental alteration or undue burden.6 The regulations also contain a number of exceptions – meaning content that does not need to comply with WCAG 2.1 standards. Those exceptions largely pertain to preexisting, rarely used web material and certain content that would be particularly difficult to make accessible.

With compliance dates looming, it would be prudent for municipalities to coordinate with their administrators, web developers, and marketing teams to, among other steps, (i) develop a step-by-step plan for complying with the new accessibility rules; (ii) develop policies on website and mobile app accessibility; and (iii) identify points of contact for members of the public to report barriers to accessibility in the digital space.

This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.

1: 28 C.F.R. § 35.200.
2: Id. at § 35.104.
3: Id. 5: 28 C.F.R. § 35.200(b).
4: See 28 C.F.R. § 35 app. D. 6: Id. at § 35.204