Special Episode: Chapter 2 - Real. Relevant. Required.

This episode is a reading of Chapter 2 from Real. Relevant. Required.: A Practitioner's Guide to ADA Title II Digital Accessibility for State and Local Government by Becky Rehorn. The DOJ's April 2024 final rule is 90 pages long. Most practitioners will never read it. Chapter 2 breaks down what the rule actually requires in plain language: the technical standard (WCAG 2.1 Level AA), the compliance deadlines as updated by the April 2026 Interim Final Rule, the limited exceptions, the equivalent facilitation provision, and how the rule interacts with existing obligations under Section 504 and Title VI. No legal jargon. No speculation. Just what the rule says and what it means for the people responsible for meeting it. For the next several weeks, Access Brief is sharing chapters from the book. Regular episodes return in July. The book is available now on Amazon.

Access Brief is produced by Accessible Organizations Group LLC.

Transcript

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You are listening to the Access Brief Podcast Edition of the Book Real Relevant Required. My name is Becky Rehorn. We are continuing part one Real. In chapter one, we looked at how we got here. In chapter two, what the rule actually says, we open the rule itself. The april twenty twenty four final rule is short. The Federal Register Version, including the explanatory preamble that accompanies every federal rulemaking, is roughly one hundred pages. The rule itself, the portion that actually amends the code of federal regulations and carries the force of law, is shorter than this chapter. A practitioner can read it in an afternoon. Most of the practitioners I know have not read it. That is not a criticism. Federal rules are written in a register most of us do not use in our day jobs, and the April twenty twenty four rule arrived during a period when the agency staff and consultants responsible for implementing it were already being asked to deliver more with fewer people. What I offer in this chapter is the rule in plain language, what it requires, who it covers, what it exempts, and where the edges are. Every substantive claim here is anchored to a citation in the endnotes so you can verify the source for yourself what the rule requires. Strip the rule to its core and it says three things. First, state and local government web content and mobile applications must conform to the Web Content Accessibility Guidelines version two point one level A. Level AA is the most widely adopted accessibility standard for government and private sector programs worldwide. Chapter three covers what it requires in detail. Second, the obligation runs to content the agency produces itself and to content produced by third parties on the agency's behalf. A consultant built project website is the agency's responsibility. A vendor hosted comment portal is the agency's responsibility. A mobile app developed under contract is the agency's responsibility. The agency cannot delegate the obligation by delegating the work. Third, compliance must be met by a fixed deadline. There is no phased on ramp, no partial credit scheme, and no general provision for we will comply once we finish our current IT project. The deadline arrives, and on that date, the content either conforms or it does not. That is the core of the rule. The remaining provisions are definitional, who is covered, what exemptions apply, and what counts as an acceptable alternative path to equivalent access. The rest of this chapter walks through each of those who is covered and when. The rule applies to every public entity subject to Title II of the ADA. No agency is exempt. That is a larger universe than many practitioners realize. It includes state governments, county and municipal governments, public universities and community colleges, K twelve school districts, transit agencies, water and sewer authorities, public housing authorities, and special districts of every description. What differs by population is not whether the rule applies, but when compliance is required. Agencies serving populations of 50,000 or more must comply by April 26, 2027. Agencies serving populations under 50,000 and all special district governments regardless of population must comply by April 26, 2028. These dates reflect a one year extension granted by DOJ in April 2026 through an interim final rule. The original deadlines were April 24, 2026 and April 26, 2027, respectively. The extension was an acknowledgement that DOJ had overestimated the advancement and availability of technology and underestimated the resource and staffing constraints facing covered agencies. The substantive requirements of the rule, the WCAG two point one level AA standard, the scope of coverage, the absence of a safe harbor, are unchanged. The extension is not an invitation to delay. Agencies that wait until early 2027 or early 2028 to begin will find themselves in the same compressed remediation posture the extension was designed to relieve. Chapter four addresses common points of confusion about coverage, including how population is measured and how special districts are treated under the rule. What counts as web content and mobile apps? The phrase web content and mobile apps is deliberately broad, and the breadth is where most scoping conversations get stuck. Web content, as the rule uses the term, is the full set of information and experiences delivered to users through a web browser. That includes the public facing website pages most practitioners think of first, but it also includes documents linked from those pages, PDFs, Word documents, spreadsheets, presentations, embedded video and audio, interactive maps, comment portals, online forms, surveys, registration systems, and third party platforms an agency uses to communicate with the public. If a member of the public reaches the content through a link on the agency's site, through a login the agency provides, or through a service the agency directs them to, the content is in scope. Mobile applications are treated the same way. Any application the agency makes available to the public, whether developed in-house, commissioned from a contractor, or licensed from a vendor, and branded as the agency's own, must meet the same WCAG 2.1AA standard. That broad definition of web content has two practical consequences worth highlighting. The first is that PDFs are in scope, and PDFs are frequently where the largest compliance gap resides. An agency can redesign its website and still be noncompliant if the documents linked from that website, environmental assessments, meeting minutes, budget documents, public notices have not been remediated. The purpose of analysis of State Department of Transportation public involvement plans discussed in chapter 5 illustrates the scale of this gap. Chapter 5 treats the PDF problem in detail. The second is that third-party platforms are in scope when they are used to deliver agency services or information. If an agency uses a third-party survey tool to collect public comment, a third-party video platform to host public hearings, or a third party payment processor to accept utility payments. The accessibility of those platforms is the agency's responsibility, not the vendors. The rule does not care where the content is hosted. It cares whether the public can access it. The exceptions The rule includes five narrow exceptions. All of them are narrower than they first appear, and none of them should be treated as default safe harbors. Archived web content. Content that is reproduced exactly as it was originally published, retained exclusively for reference, research or record keeping not used beyond those purposes and clearly identified as archived is exempt. The four elements are conjunctive. A document is archived only if it meets all of them. A PDF buried three clicks deep on an agency site is not archived. It is simply old. Preexisting conventional electronic documents. Documents published to a website or mobile app before the agency's compliance date are exempt unless they are currently being used to apply for, gain access to, or participate in the agency's programs or activities. The exemption sunsets on contact with current service delivery. The moment a preexisting document is actively used, it loses its exempt status and must be remediated. Third party content not posted by or on behalf of the agency. Content posted by members of the public, for example, a comment left on a municipal social media account by a resident, is not the agency's responsibility to remediate. Content posted by the agency or by a contractor operating under the agency's direction is the agency's responsibility even if it lives on a third party platform. Individualized, password protected documents. Content created for a specific individual and protected behind authentication, a student's individualized education program, for example, or a parent's view of their child's school records is exempt in limited circumstances. The exemption is narrow and does not extend to password protected content generally. Preexisting social media posts. Posts an agency made on social media platforms before the compliance date are exempt. Posts made on or after the compliance date are not. Each of these exceptions will draw scoping questions from readers who want to apply them more broadly than the rule allows. The analytic discipline is the same in every case. Read the exception narrowly, document the basis on which you are claiming it, and remember that the exception exists to address a specific limited problem, not to reduce the total universe of work. Equivalent facilitation. The rule permits an agency to use a method or material not specified in WCAG 2.1AA if the alternative provides substantially equivalent or greater accessibility. This provision, often called equivalent facilitation, is important and limited in equal measure. Equivalent facilitation is important because accessibility is a field that continues to evolve. The rule does not freeze practice at the 2018 publication of WCAG 2.1. It allows for practices and technologies that achieve the same or better outcomes. An agency that adopts WCAG 2.2, for example, is generally considered to meet the 2.1 requirement because 2.2 adds to 2.1 rather than replacing it. The provision is also limited. Equivalent is a high bar and the burden of demonstrating equivalence falls on the agency claiming it. An agency that builds a conforming alternate version of a website, a separate parallel version intended for users of assistive technology is generally not meeting the equivalent facilitation standard. Separate is not equal, and the rule reflects that principle. In practice, equivalent facilitation is used most successfully as a forward looking provision, a way to adopt emerging best practice, rather than as a workaround for declining to meet the specified standard. The rule in one paragraph If a public entity subject to Title II produces or commissions web content or a mobile app that members of the public are expected to access, that content must conform to WTAG two point one level AA by the agency's compliance deadline. A small number of narrow exceptions apply. Alternative methods may be used if they achieve equivalent or greater accessibility. Responsibility for compliance cannot be transferred to a contractor, a vendor, or a third party platform. With the rule itself covered, the next chapter translates WCAG two point one level double A, the standard the rule points to, into language a practitioner can work with four key takeaways in chapter two. Number one, the rule requires three things conform to WCAG two point one level AA, cover all content produced by or on behalf of the agency, and meet the deadline. Number two, PDFs are in scope and are frequently the largest compliance gap. A redesigned website with inaccessible documents is still noncompliant. three, third party platforms are in scope when used to deliver agency services. The agency cannot transfer the compliance obligation to a vendor. four, the five exceptions are narrow. Treat each one as a limited carve out, not a general safe harbor. That's it for chapter two. Thank you for listening. In the next episode, chapter three, WCAG two point one level AA in practice, we take the standard the rule points to and translate it into language a practitioner can work with. As always, keep moving forward.