Seyfarth Synopsis: The Department of Transportation says that an airline’s provision of an accessible alternative website violates the Air Carrier Access Act (ACAA), so are such websites an acceptable means of providing access under the ADA?

In response to the onslaught of website accessibility lawsuits against public accommodations covered by Title III of the ADA, some website accessibility consulting companies have been promoting solutions that involve the use of an alternative version of a business’ primary website that conforms to the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA).  The alternative version is typically accessed through a link on the website and, unlike the bare bones “text-only” websites of the past, looks very much like the non-accessible website. While not cheap, this solution is appealing to many businesses because it requires no coding changes to the primary website, no substantial commitment of internal company resources because it is implemented by the third party consultant, and can be implemented fairly quickly to provide immediate access for users with disabilities.

In a recent consent order against airline SAS, the Department of Transportation (DOT) made clear that these alternative websites do not meet the Air Carrier Access Act (“ACAA”) requirement that all airlines make all web pages on their primary websites accessible by December 12, 2016.  The DOT said SAS violated the ACAA’s website rules when it when it “created a separate Web site for individuals with disabilities instead of ensuring that its primary Web site met the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA standard.”   To avoid an enforcement action, SAS entered into a consent order which requires SAS to pay $100,000 in immediate penalties, and other $100,000 in penalties if it later violates the Consent Order.

The airline had engaged a well-known website accessibility consulting company to create an “assistive version” of its primary website which had a separate url from the airline’s primary website url, and could be accessed from a link on the top right of the primary website homepage.  The airline stated that it had in good faith employed this solution to meet the compliance deadline while it was building a new global primary website that would be (and is now) accessible.  It also argued that it met the undue burden exception to the website rule, which, when met, allows use of an alternate conforming website.  DOT responded that the ACAA permits air carriers to use a WCAG Level AA conforming alternate version only when conforming the primary web page to all WCAG 2.0 AA success criteria would constitute an undue burden or fundamentally alter the information or functionality provided by the primary webpage, and that SAS could not meet either exception.  The DOT cited the ACAA’s explanation for its prohibition on separate accessible websites, as “likely [to] perpetuate the problem of unequal access as carriers allot fewer resources than needed over time to properly maintain the secondary site.”  However, the Consent Order did not state that the alternative website failed to comply with the WCAG 2.0 AA in any way.  The DOT also rejected SAS’s argument that it was only using the alternative website to meet the deadline while its entirely new accessible primary website was under development.  We assume that SAS, like many other businesses, did not want to spend money remediating an old website that would soon be retired.

The DOT Consent Order raises the obvious question of whether an alternative accessible version of an inaccessible website can be used to provide access under Title III of the ADA.  We do not think the DOT Consent Order is dispositive because, unlike the ACAA which explicitly says the primary websites of airline carriers must comply with WCAG 2.0 AA, the ADA does not specify any accessibility standard for public accommodations websites.  In fact, the Department of Justice (DOJ) which is responsible for enforcing the ADA recently stated in a letter to Congress that “absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication.”  That said, the Consent Order certainly raises concerns about the use of alternative accessible websites, and public accommodations should carefully examine their options before signing up for this type of solution.

Seyfarth Synopsis: California will soon have a new law requiring WCAG 2.0 AA compliance for state agencies’ websites by 2019.

On October 14, 2017 California Governor Jerry Brown signed into law AB 434, which will create a new Government Code section 11546.7 and require, beginning July 1, 2019, state agencies and state entities to post on their website home pages a certification that the website complies with the Web Content Accessibility Guidelines 2.0 Level AA, or a subsequent version, and Section 508 of the Rehabilitation Act.

State agencies have been required, since January 1, 2017 by virtue of 2016 legislation, to comply with Section 508 in developing, procuring, maintaining, or using electronic or information technology “to improve accessibility of existing technology, and therefore increase the successful employment of individuals with disabilities, particularly blind and visually impaired and deaf and hard-of-hearing persons.” That statute, Government Code 7405, also requires entities that contract with state or local entities for the provision of electronic or information technology or related services to respond to and resolve any complaints regarding accessibility that are brought to the entity’s attention.

The new Government Code section 11546.7 will also require the State’s Director of Technology to create a standard form for each state agency or entity’s chief information officer to use in determining whether its respective website complies with the accessibility standards.

With this legislation, California joins state and municipal entities in other parts of the country that have similar web accessibility requirements for governmental entities and contractors.  This legislation fills a small part of a void the federal Department of Justice has decided for the time being not to fill, when it put its pending regulations that would set an accessibility standard for state and local (as well as private entity) websites on the inactive list.

Edited by: Minh N. Vu.

By: ADA Title III Editorial Board

Seyfarth Synopsis: Final Rule Setting WCAG 2.0 AA as the Federal Agency Website Standard Published in Federal Register, Triggering Compliance Deadline of January 18, 2018.

Last week we reported that the Access Board announced a final rule, under the authority of Section 508 of the Rehabilitation Act, requiring the websites and electronic content of federal agencies to conform to WCAG 2.0 AA within one year of the date the rule is published in the Federal Register.  This final rule was published in the Federal Register yesterday, January 18, 2017, making the effective date of the final rule March 20, 2017; and requiring compliance with the new rule setting WCAG 2.0 AA as the standard for federal government websites by January 18, 2018.

Seyfarth Synopsis: New Affordable Care Act and Medicaid Regulations will require covered entities providing health care programs and services have accessible electronic information technology, including accessible websites.

While we continue to wait for new regulations for the websites of state and local governments, federal agencies and public accommodations, two new regulations from the Department of Health and Human Services (HHS) strongly suggest that health care provider websites must conform to the Web Content Accessibility Guidelines (WCAG) 2.0 AA to meet their non-discrimination obligations.

Effective July 18, 2016, a new “Meaningful Access” rule interpreting the Affordable Care Act’s (ACA) Section 1557 Anti-Discrimination requirements will require providers of health care programs and services that receive federal financial assistance comply with new requirements for effective communication (EIT) (including accessible electronic information technology), and physical accessibility.  Because most health care providers do receive federal funds through Medicare reimbursements, this rule has broad coverage.  Effective July 1, 2017, new Medicaid rules will require managed care programs to have (EIT) that complies with “modern accessibility standards,” and impose other effective-communication requirements such as large print and other alternative formats.

Section 1557 of the ACA requires covered entities to ensure that health programs and services provided through EIT be accessible to individuals with disabilities unless doing so would result in undue financial and administrative burdens (in which case the entity must provide the information in an equally accessible alternative format) or a fundamental alteration in the nature of the health program or activity.   HHS did not specify a website accessibility standard in the new rule.   However, the agency said that compliance with accessibility requirements would be “difficult” for covered entities that do not adhere “to standards such as the WCAG 2.0 AA standards or the Section 508 standards,” and “encourages compliance” with these standards. Moreover, recipients of federal funding and State-based Marketplaces” must ensure that their health programs and activities provided through websites comply with the requirements of Title II of the ADA — requirements that are the subject of a pending rulemaking at the Department of Justice.  The Rule also requires providers to give “primary consideration” to the patient or customer’s auxiliary aid or service for communication.

The new Medicaid Rule will require that entities providing managed care programs provide information in a format that is “readily accessible”, which it defines to mean “electronic information and services which comply with modern accessibility standards such as section 508 guidelines, section 504 of the Rehabilitation Act, and W3C’s Web Content Accessibility Guidelines (WCAG) 2.0 AA and successor versions.”  The agency intends this definition to be more clear, reflect technology advances, and align with the requirements of Section 504, and recommends entities consult the latest section 508 guidelines or WCAG 2.0 AA.

While both rules make reference to the Section 508 standards for accessible websites which has been the standard for federal agency sites for many years, all indicators point to WCAG 2.0 AA as the standard to use when working to improve the accessibility of a website.  The federal government has issued a proposed rule to replace the existing Section 508 standards with WCAG 2.0 AA.  Most experts we deal with consider the Section 508 standards outdated.  WCAG 2.0 AA was developed by a private consortium of experts called the Worldwide Web Consortium (W3C), and is the website access “standard” in all U.S. Department of Justice (DOJ) settlement agreements. It is also the legal standard for all airline websites covered by the Air Carrier Access Act.  Moreover, DOJ has indicated in its Supplemental Advanced Notice of Proposed Rulemaking for state and local government websites that WCAG 2.0 AA should be the legal standard for such websites.

Seyfarth Synopsis:  If you would rather not read the 30-page small print Federal Register notice, this summary will provide you with what you need to know about the Justice Department’s most recent official pronouncement on web accessibility.

As we reported, last week DOJ issued a lengthy Supplemental ANPRM (SANPRM) for state and local government websites, which some commentators have decried as a “do-over.”  This unusual move was a surprise, to be sure, but we do not view it as a complete setback.  The SANPRM appears to be DOJ’s attempt to preview its position on key issues and obtain public comment.  As such, the SANPRM has very serious implications that go far beyond the realm of state and local governments.  The rules that DOJ ultimately issues in the state and local government website rulemaking will likely provide the framework for the proposed rule for public accommodations websites — currently slated for 2018.   Accordingly, public accommodations and the organizations that represent them need to submit comments in response to the SANPRM before the comment period closes on August 8, 2016.

We normally don’t write long blog posts but the lengthy SANPRM — containing no fewer than 123 questions for public comment — warrants an exception.  Below is a high level summary of the key issues, with some of our preliminary commentary:

  • Scope of Regulation. DOJ is considering broadening the scope of the future rule from websites to “Web content.”  This expansion could potentially cover web content that a covered entity places on websites that it does not own or control (g. advertising), and could have far reaching implications.
  • Accessibility Standard. DOJ believes that WCAG 2.0 AA should be the standard for Web content, as we’ve predicted.
  • Compliance Period. DOJ is considering giving public entities “two years after the publication of a final rule to make their Web sites and Web content accessible in conformance with WCAG 2.0 Level AA, unless compliance with the requirements would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.”  This begs the question of why DOJ’s enforcement attorneys have been demanding that businesses and state local governments make their websites comply with WCAG 2.0 AA right now.  The two-year proposal is a shift away from DOJ’s initial, 2010, ANPRM position where it contemplated different compliance dates for existing web pages versus new webpages or websites.  The SANPRM also notes DOJ is considering a longer three-year compliance period for captioning of live audio content.
  • Consultants. DOJ wants to know if there is a shortage of consultants who can bring Web content into conformance with the proposed WCAG 2.0 AA standard.  Rather than rely on anecdotal comments, we suggest that DOJ canvas the field of such consultants and interview them to see if they are actually qualified.  DOJ will likely learn that there are very few truly experienced digital accessibility consulting firms – certainly not enough to assist the thousands of state and local governments, let alone the millions of public accommodations that will most certainly need guidance.
  • Less Demanding Standard for Small Entities. DOJ is considering whether “small public entities” or “special district governments” should have a different compliance timetable or be subject to a less demanding standard such as WCAG 2.0 A, as opposed to AA.  This approach could set the precedent for small businesses in a future proposed rule applicable to public accommodations.
  • Possible Exemptions. DOJ is considering exempting the following Web content from compliance with the proposed WCAG 2.0 AA standard:
    • Archived Web Content. To be considered “archived Web content,” the content would have to be (1) maintained exclusively for reference, research, or recordkeeping; (2) not altered or updated after the date of archiving; and (3) organized and stored in a dedicated area or areas clearly identified as being archived.  Covered entities would still have to provide accessible versions of this content if someone asks for it.
    • Conventional Electronic Files (g. PDFs, Word documents, Excel spreadsheets, and PPT presentations) that existed on a Web site before the compliance date of any proposed rule.
    • Third-party Web Content Linked from the Public Entity’s Website. Note, however, there would be no exception for linked Web content if the public entity “uses the third-party Web site or Web content to allow members of the public to participate in or benefit from the public entity’s services, programs, or activities.”  For example, if the state parking enforcement authority contracts with a third party to process parking ticket payments on a third party site, that site would also need to conform to WCAG 2.0 AA.
    • Third Party Content. A public entity would not have to make content that is posted on its website by third parties conform with the proposed standard, unless the information is essential for engaging in civic participation or if the Web site owner has chosen to include the third party content on the Web site.  This proposal strikes us as highly ambiguous.  Would YouTube have to provide captioning for every video posted by third parties because it has chosen to invite such third parties to post the videos?  Would allowing people to post be considered an affirmative choice by the website owner triggering the compliance obligation?  What if a website owner needs to include key third party content on its site but the vendor but the vendor won’t agree to make it accessible?  Would the website owner be barred from including this third party content on its website, even if no vendor will provides it?
  • Social Media Platforms. DOJ considers social media platforms such as Facebook, YouTube, Twitter, and LinkedIn to be covered by Title III of the ADA and proposes to not address the use of these platforms by state and local governments (subject to Title II) in this rule.  However, DOJ says that any information provided by public entities on those social media platforms must also be available in some alternative way if the platforms are not accessible.
  • Web content of Educational Institutions. DOJ is considering requiring educational institutions to make all content available to the public (as opposed to exclusively for students) on their Web sites conform to WCAG 2.0 AA.   Universities should be gearing up to fight this proposition vigorously because their websites tend to be vast repositories of information (some of which may never be accessed or viewed), including thousands of videos, that would have to be made to conform to WCAG 2.0 AA.  DOJ said that content relevant to a particular student or parent must be made accessible on demand “in a timely manner.”
  • Conforming Alternate Versions of Web Pages and Web Content. DOJ may permit the use of conforming alternate versions of a Web page and/or Web content (1) when it is not possible to make Web content directly accessible due to technical or legal limitations; or (2) when used to provide access to conventional electronic documents.
  • Undue Burden and Fundamental Alteration Defenses. DOJ is considering the use of these defenses as grounds to not make Web content conform to WCAG 2.0 AA, but (1) the burden of proving defense would remain on the public entity; (2) the decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity; and (3) the decision must be documented with a written statement of the reasons for reaching that conclusion.  Moreover, the public entity still has to take any other action that would not result in such an alteration or such burdens.  Moreover, the public entity still has to provide access in some alternative fashion unless doing so would also result in a fundamental alteration in the nature of a service, program, or activity or undue financial and administrative burdens.
  • Does Compliance with WCAG 2.0 AA Satisfy a Public Entity’s ADA Obligations? Not entirely.  DOJ says that a public entity would not be required to go beyond this standard even if a person with a disability is unable to access the Web content.  However, the public entity would still have to utilize an alternative method of providing the individual with a disability equal access to the information, service, program, or activity on its Web site unless the public entity can demonstrate that alternative methods of access would result in a fundamental alteration in the nature of the service, program, or activity or undue financial and administrative burdens.
  • Measuring Compliance with WCAG 2.0 AA: DOJ is seeking public comment on how compliance with WCAG 2.0 Level AA should be assessed or measured, particularly for minor or temporary noncompliance.  Should the measurement be based on the percentage of Web content that is accessible, or some minimum threshold of compliance?  The DOJ also wants to know if there are circumstances where Web accessibility errors may not be significant barriers to accessing the information or functions of a Web site.  We strongly believe that the regulations must contain a clear statement that temporary noncompliance is not a violation of the ADA.  Websites change all the time and there are bound to be bugs and issues that come up.  And, guidance on how compliance with the standard will be measured given the dynamic nature of websites is essential.
  • Coverage of Mobile Apps.  DOJ asks whether its rule should cover mobile apps and which standard should be used. DOJ specifically called out WCAG 2.0, the User Agent Accessibility Guidelines 2.0, the Authoring Tools Accessibility Guidelines 2.0, or ANSI/Human Factors Engineering of Software Interfaces 200 as possible accessibility requirements for mobile apps.

As you can see, there are a many issues requiring public comment in the SANPRM.  State and local governments, persons with disabilities, digital accessibility experts, vendors of third-party content  and public accommodations all need to engage in this process and provide their input.  If you have questions about the SANPRM or how to get involved in making comments, feel free to contact us or your favorite Seyfarth attorney.

Seyfarth Synopsis:  In what has been deemed the first of its kind, Netflix has entered into an agreement with the American Council of the Blind, the Massachusetts-based Bay State Council of the Blind, and a blind individual, to add “audio descriptions” to many of the programs offered on its video streaming and DVD rental service.

“Audio description”  is narration added to the soundtrack of a video that describes important visual details that cannot be understood by viewers who are blind from the main soundtrack alone.  Under the agreement, by December 31, 2016, Netflix will provide audio description for many popular titles in its streaming and disc rental libraries, as well as “Netflix Original” shows such as Orange is the New Black and House of Cards.  If Netflix does not control the audio description rights to a title, it will “make commercially reasonable efforts to secure and offer audio description.”  Adding audio descriptions to soundtracks describing what is happening visually on the screen can be more challenging that adding closed captioning for the deaf.  Closed captioning translates the words and sounds on soundtrack into captions and requires little to no interpretation.  Audio descriptions, on the other hand, require a description of what is going on visually and can be a much more subjective exercise.

Netflix will also make its website and mobile application accessible to individuals who are blind and use screen-reading software to access its site and app.  Like most settlement agreements and consent decrees concerning website accessibility, this agreement  adopts the Web Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA) as the accessibility standard.  However, the agreement does not use WCAG 2.0 AA as the accessibility standard for mobile applications.  Instead, the agreement adopts the British Broadcasting Corporation’s Mobile Accessibility Standards and Guidelines version 1.0 (“BBC Standard”) as the accessible standard for the mobile application.  The use of the BBC Standard is unusual and departs from the Department of Justice’s practice of using the WCAG 2.0 AA as the accessibility standard for mobile applications.

Responding to the concerns of disability rights advocates is not new for Netflix.  As we reported previously, back in 2012 Netflix entered into a consent decree with the National Association of the Deaf which brought suit under Title III of the ADA because Netflix allegedly did not providing adequate closed captioning on its video streaming service.  As a result of that  decree, 100% of Netflix’s US-based On-demand Streaming Content is now captioned or subtitled.  It appears that when approached by disability rights advocates this time around, Netflix decided to work with them rather than litigate. The agreement is part of a continuing trend in which businesses are voluntarily taking action to make their websites and mobile applications more accessible.

Edited by Kristina Launey.