DOJ Pulls Advance Rulemakings for State and Local Government Accessibility

Since 2010 states and local governments have been waiting for the Department of Justice (DOJ) to issue regulations requiring them to increase website, equipment and furniture, and 9-1-1 accessibility for persons with disabilities. The wait is over; the regulations are no longer in the works (for now).

Title II of the Americans with Disabilities Act (ADA) prohibits states and local governments from discriminating on the basis of disability in “all services, programs, and activities provided to the public.”

In 2010 DOJ issued three Advance Notices of Proposed Rulemaking indicating its desire to issue regulations regarding accessibility of state and local government websites and non-fixed equipment and furniture and use of Next Generation 9-1-1. While DOJ has been silent on the latter two issues since 2010, in 2016 it issued a supplemental advance notice regarding website accessibility

As of December 26, 2016, DOJ has withdrawn all four Advance Notices of Proposed Rulemaking while it evaluates whether promulgating regulations is “necessary and appropriate.” 

Advance Notices of Proposed Rulemaking do not contain actual proposed rules. Instead, federal agencies ask the public to respond to a series of specific questions. Sometimes the discussion surrounding the questions explicitly states the content, or at least the direction, of the rule the agency intends to propose.

The 2016 supplemental advance notice regarding website accessibility laid out the web accessibility standard DOJ was contemplating adopting:  Web Content Accessibility Guidelines 2.0 level AA (except for live video captioning) to be effectuated within two years of promulgating the final rule. The advance notice on equipment and furniture sought comments on medical equipment and furniture, exercise equipment and furniture, golf carts, nursing home beds, and electronic and information technology. The advance notice regarding 9-1-1 call-centers sought comments on requiring call centers to shift from “analog telecommunications technology to new Internet-Protocol (IP)-enabled Next Generation 9-1-1 services (NG 9-1-1) that will provide voice and data (such as text, pictures, and video) capabilities.”

DOJ cited the same “necessary and appropriate” language when explaining why it was withdrawing all of the Advance Notices of Proposed Rulemaking. With the 9-1-1 advance notice it was more explicit—since 2010, adoption of NG 9-1-1 has increased.

DOJ offered a long list of caveats about the withdrawals basically stating it can and may change its mind at any time. Presumably, DOJ still takes the position that all three of these categories are covered by the ADA; DOJ is simply not planning on issuing regulations explaining the implications of that coverage—at least at this time. 

On October 7, 2016, through the State and Local Legal Center (SLLC), the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the National Association of Government Web Professionals (NAGW), and the National Association of Telecommunication Officers submitted to DOJ comments on the website accessibility supplemental advance notice explaining how state and local governments would be impacted.