How States Can Prepare for the Digital Accessibility Litigation Surge

In this episode of NASCIO Voices, hosts Amy Glasscock and Alex Whitaker sit down with NASCIO policy analyst Kalea Young-Gibson to discuss her article Digital Accessibility Compliance Thoughts From a Public Sector Attorney, which is based on a conversation with Max Heinz, supervising attorney with New York State Information Technology Services. The conversation covers the recently extended DOJ Title II final rule compliance deadline, explaining that while states now have more time, the urgency has not diminished — digital accessibility lawsuits have surpassed 5,000 per year and are now considered mainstream civil rights enforcement. Kalea breaks down what "reasonable effort" really means for state agencies (hint: it's context-driven, not a checklist), how states should structure vendor contracts using WCAG-tied language as a model, and why documentation is the single hardest — and most critical — thing states must get right to defend themselves in litigation. The episode closes with a lightning round featuring emoji habits, lessons from new cat ownership, and a passionate endorsement of Cook Out, North Carolina's beloved fast food chain.

Transcript

Amy Glasscock 0:04

Hi, and welcome to NASCIO Voices, where we talk all things state IT. I'm Amy Glasscock in Lexington, Kentucky.

Alex Whitaker 0:11

And I'm Alex Whitaker in Washington, D.C. Today we're talking about digital accessibility, DOJ's Title II final rule on web and mobile app accessibility, and what states should be thinking about as they continue working toward compliance.

Amy Glasscock 0:24

Our guest is our colleague, Kalea Young Gibson, policy analyst here at NASCIO. Kalea recently authored a new NASCIO article, Digital Accessibility Compliance Thoughts from a Public Sector Attorney, based on the conversation with Max Heinz, Supervising Attorney with New York State Information Technology Services. Kalea, welcome back to NASCIO Voices. Thank you for having me again.

Kalea Young-Gibson 0:44

Happy to be here.

Amy Glasscock 0:45

Yeah, we're happy to have you as always. All right, so before we get into the article itself, there has been an important update since this issue has been on everyone's radar, and I believe since we last had you on. The DOJ final rule compliance timeline was recently extended by one year for affected entities. How does that extension contextualize the discussion you had with Max Heinz or anything that came up in the article?

Kalea Young-Gibson 1:08

Yeah, so the extension itself, it gives states a lot of breathing room, but it does not reduce their risk by any means. It simply means states now have more time to build the kind of mature, well-documented accessibility processes that Attorney Heinz says are essential for litigation defense, vendor accountability, and just demonstrating good faith, compliance, and reasonable effort. At the end of that extension period, state scrutiny could also increase now that the courts would have the option to say you had an extra year to get this done, so what did you do with it? Overall, this extension it simply reinforces everything that attorney Heinz brought up of it does not replace anything.

Alex Whitaker 1:48

Got it. So essentially it's more time, but not less urgency. Absolutely. Got it. Okay. So the article notes that digital accessibility lawsuits have surged past 5,000 years, which is a huge number. What do you think that rise signals for states working towards DOJI final rule compliance?

Kalea Young-Gibson 2:04

So I think this lawsuit surge over the last year, I think it implies that digital accessibility litigation, it's not niche anymore. It's not hypothetical. It's now mainstream civil rights enforcement. And this is coming, especially at a time where shifts in the tech world, like AI and all of its many iterations, could introduce even more civil rights risk. It suggests that the plaintiff's firms, in addition, are already very active, experienced, and becoming increasingly more sophisticated when they take on these types of cases. So states should expect scrutiny, heightened scrutiny, because the DOJ final rule no longer exists in a vacuum, if that makes sense.

Alex Whitaker 2:40

Yeah, no, it it does, certainly. I think there's obviously some real-world impact for it. In the interview, Heinz pushes back on the idea that reasonable effort is a percentage or a checklist. So I'm wondering how should states reframe what progress actually looks like.

Kalea Young-Gibson 2:54

And so I think this was one of the most enlightening pieces of the conversation for me. Reasonable effort really becomes more attainable when you stop thinking of it in quantitative terms, right? There's no magic number or percentage of any criteria that makes a state agency or agency, quote unquote, safe. Reasonable effort is about context, which is also what judges tend to look at. So the kinds of questions that come up, can people with disabilities actually use your services? Is the site itself complex? What types of accessibility barriers are people encountering? What is the state's remediation process, or does the state even have a centralized remediation process of any sort? How strong is the state's governance? The answers to those questions are where reasonable effort is determined, not by a number.

Amy Glasscock 3:43

All right. So I think that kind of leads us into the discussion of vendors and the vendor section of the article. So New York uses uniform contract terms tied to WCAG, WCAG. What contract element should states prioritize to strengthen vendor accountability and reduce risk?

Kalea Young-Gibson 4:00

Yeah, so New York's approach that Attorney Heinz laid out is a very great mature model. It includes uniform contract terms that are directly tied to WCAG and the web content accessibility guidelines and level AA, I think 2.1 is what is referenced directly in the DOJ final rule. So it includes that. There are clear expectations for monitoring, and there is what I think is the most important explicit language that the vendor is responsible for meeting and maintaining digital accessibility standards. The key elements that states should prioritize to should prioritize, excuse me, are those WCAG conformance requirements, documentation expectations, testing rights, again, remediation timelines, and consequences for noncompliance, especially when trying to manage that vendor-state relationship. It might sound like it's scary, but we're not trying to scare anyone off. Uniformity this way, it's just crucial because it creates predictability, consistency, and it minimizes surprises for the state, the citizens using the service, and the third parties of vendors themselves.

Alex Whitaker 5:04

Got it. So the article also makes clear that remediation timelines and enforcement approaches really can vary widely. So when timelines are so ambiguous, how do states plan?

Kalea Young-Gibson 5:14

Yeah, so the enforcement timelines, they are intentionally flexible because judges, again, as we kind of mentioned before, they have a very wide latitude and they have a lot of discretion that they can apply to these cases. Some cases may move quickly, others may follow patterns that are set by past consent decrees, for example, but states cannot control that variability. They can control their readiness. The best strategy is to assume scrutiny will come, assume it may be very high levels of scrutiny, and prepare accordingly. Document everything, build up your governance, and make sure that leadership especially understands the landscape before a complaint even arrives.

Alex Whitaker 5:51

So that brings us to Heinz's closing advice in the article, which was very concrete. Uh, you know, and I think this is true for a lot of things in state government, but it is document everything, get legal involved early, and be proactive. Um, which one of these do you think that states really struggle the most with and why?

Kalea Young-Gibson 6:07

Yeah, so not only was that advice concrete, I think it is also deceptively simple, but incredibly incredibly powerful. So document everything, like you said, involve legal early, be proactive, and train broadly. But just gathering and speaking with state AOs, what I've learned is that the hardest one for states is definitely that documentation piece. States do a lot of good work. And when you're so busy and the final rule just got extended recently. So prior to that, you're still thinking that deadline is coming up this year. It's easy to do that good work and forget to write it down. But if it isn't written down, it doesn't exist in the realm of litigation. So building a culture of documentation, policies, test results, remediation logs, vendor communications, tracking your key performance indicators through things like state dashboards. That is one of the strongest defenses a state can have.

Amy Glasscock 6:59

All right, Kalea. Thank you so much for that overview and talking with us about everything. And of course, we will link to this publication in our show notes. But you know you're not getting out of here. Yeah, you know you're not getting out of here without a few questions in our lightning round. Are you ready?

Kalea Young-Gibson 7:17

I sure am. All right, Kalea. What phone emoji would you say that you use most on your phone?

Speaker 7:22

So I think like most zillennials, it's between the sobbing face, which to us it means crying, laughing. We're not like actually bawling our eyes out, or the skull, which means I'm dead, which translates to what ROFL used to be. So definitely those two. Because I laugh a lot. I'm a very goofy person, so yeah.

Amy Glasscock 7:43

So so there's like the laughing crying emoji, and then there's the sad crying emoji. So which one is it?

Kalea Young-Gibson 7:49

Uh the sad one. The sad one. Because like I laugh. Sometimes, like when I really get to laughing, like, I won't stop. I will end up like sobbing, crying, depending on what it is. So that one is definitely more me.

Amy Glasscock 8:02

Okay, okay, gotcha. All right. So, second question. You are a relatively new cat mom, but you know, I I think you are killing it. What has pet ownership taught you about yourself that you didn't know?

Kalea Young-Gibson 8:13

I love Dream and Fade more than almost anything in this on this earth. Uh, they are so precious. I think I learned that I'm more patient than I give myself credit for. Because like cats are not dogs. You can't train them in the ways that you can a dog. You have to be willing to constantly redirect and reinforce the behaviors you do want. And that can be very time-consuming and sometimes frustrating. But like they're literal babies, and you know, they can take their time. And in fact, I want them too, because that's also how you continue to build that bond with your animal that lasts a lifetime. So definitely that at least with pets, I'm more patient than I think I am. I haven't decided that about people yet.

Amy Glasscock 8:53

Yeah. Well, it helps and you love them a lot. Yes.

Alex Whitaker 8:58

Uh, all right, Kalea. You live in North Carolina. What is your favorite North Carolina food?

Kalea Young-Gibson 9:02

So, born in South Carolina, live in North Carolina now, Carolina native, a Cookout tray with a Cheerwine float or caramel cheesecake milkshake. I actually had one last night. Uh Cookout is it, yes, it's food, but it's also not food. It's a vibe. It's a Carolina experience.

Amy Glasscock 9:18

Is this like the fast food cookout? Yes.

Kalea Young-Gibson 9:21

I didn't pick the specific food because it's the entire restaurant. And cherwine is North Carolina's soda, so definitely with the cher wine float. And they also have over 180 milkshake flavors in general.

Amy Glasscock 9:33

Oh my gosh.

Alex Whitaker 9:34

Yeah, so like oh, it's it's too many. I'm saying

Kalea Young-Gibson 9:37

listen, come for a week, try a different one every day, and listen, yeah, cook out our record.

Amy Glasscock 9:43

We actually have those here in Kentucky, and I've never been. So we're gonna have to uh download about this offline.

Kalea Young-Gibson 9:49

Yes, yes. No, please go. Yes.

Amy Glasscock 9:53

Okay, all right, good to know.

Kalea Young-Gibson 9:55

So, yes, and also just one last thing, a big shout out and thank you to Max Heinz of New York. This conversation was so enlightening as states continue to wonder how are how is the lead the legal perspective of this gonna shake out? Him dedicating that time to speak with me and go on record with that helps not only myself, but all of our state members. So thank you so much, Max.

Amy Glasscock 10:16

Absolutely. I don't know where we would be without our state experts that are willing to collaborate with NASCIO. And we learn so much from you. Absolutely. Yeah.

Alex Whitaker 10:23

All right. Well, Kalea, thank you so much. That is all the time we have, but we really appreciate your time and for always keeping us updated on accessibility issues and deadlines and all things associated.

Kalea Young-Gibson 10:34

Of course. I feel like this is my second home now. Thanks for always having me. I appreciate it.

Amy Glasscock 10:38

Yeah, well, you have a special guest bedroom here at the NASCIO Voices Club. Yay! So you're always welcome. Thanks again for listening to NASCIO Voices. NASCIO Voices is a production of the National Association of State Chief Information Officers, or NASCIO. Learn more at NASCIO.org.

Alex Whitaker 10:55

And did you know that NASCIO has a new website? The new website makes it easier to connect, learn, and engage with the NASCIO community. Check it out.

Amy Glasscock 11:02

We'll be back in two weeks. Hope you're having a great summer.