May 3, 2016

DOJ Restarts ADA Title II Web Accessibility Rulemaking

From: The National Law Review

Teresa L. Jakubowski

On April 29, 2016, the U.S. Department of Justice announced that it has withdrawn its Notice of Proposed Rulemaking (NPRM) under Title II of the Americans with Disabilities Act (ADA) to address accessibility requirements for web information and services of state and local government entities. The proposed rulemaking had been undergoing review at the Office of Information and Regulatory Affairs, a part of the Office of Management and Budget, pursuant to Executive Order 12866 since July 2014. Instead, the Department is issuing a Supplemental Advance Notice of Proposed Rulemaking (SANPRM) seeking additional public comment. Public comments will be accepted for 90 days from the date the SANPRM is published in the Federal Register, which has not occurred to date.

The Department’s decision to withdraw its Title II NPRM is significant in that the Department had indicated in its most recent semiannual regulatory agenda issued on November 19, 2015, that it anticipated issuing the NPRM in January 2016. The Department’s Title III NPRM is not anticipated until FY 2018. Additionally, notwithstanding the fact that it has not yet issued final regulations or standards to address a covered entity’s obligations to make its website accessible under the ADA, the Department has entered into several settlement agreements under both Titles II and III of the ADA requiring entities to make their websites and mobile apps accessible. The Department also has taken the position in litigation that entities are required to make their websites accessible even though to date it has not issued regulations or standards addressing website accessibility. In the absence of such regulations or standards, entities subject to Titles II and III of the ADA have been eagerly awaiting issuance of the Title II NPRM to provide guidance on several key issues, particularly in light of the increasing litigation and/or threats of litigation by private parties.

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