Can ADA Title II Local Government Accessibility Be Efficient? A Response to Richard Hunt

Are the new DOJ regulations realistic?

This past April, the federal Department of Justice finally finalized its long awaited rules for Title II web and mobile app accessibility. These regulations apply to state and local government agencies including relatively small entities like public libraries, school districts, local courts and police departments. (We put together a summary of the new Title II rules here that covers all of the details you need to know to get into compliance).

Richard Hunt, a prominent defense attorney and ADA litigation expert, wrote a detailed blog post on the regulations expressing skepticism that many entities can successfully comply with the rules as written. You can read Hunt’s full post here but we will attempt to summarize a few of the key points:

• The ADA’s rules for physical accommodations are intended to have modest implementation costs and be “readily achievable.” Hunt argues that digital accessibility exceeds that burden.
• Digital technology acts as a force multiplier for smaller municipalities and agencies and allows them to provide more services than they could manually. The new regulations would increase the costs of providing these services; as a result, some Title II entities would scale back their digital services. This would be an example of equal accommodations resulting in less access for everyone.
• The technical standard of WCAG 2.1 Level AA is impossible to meet at scale. As proof, we can look no further than the federal government, which has consistently failed to meet this standard.
• The DOJ’s assumptions about the cost of implementation are unrealistic and do not take into account the market impacts of having 87,000 Title II entities all trying to source and hire the same experts for accessibility remediation within the 3-year deadline for compliance.

Pick a town, any town

Hunt’s assumptions about how local government bodies will attempt to conform with the new regulations may very well be true. Government digital and IT offices have not developed a reputation for high quality and cost effective services delivery. And there is certainly going to be a gap in resources and sophistication between larger Title II entities like state governments and agencies and smaller municipalities (or sub-municipality entities). But as a starting point, we thought it would be helpful to pick a nearby town and inventory their digital footprint. For simplicity we’ll set aside the school district which is managed independently and focus on websites and services managed by the town itself.

Digital budgets

The DOJ regulations estimate that costs of up to 1% of an entity’s budget would not be burdensome to comply with these regulations. Of course that’s a cap; entities would ideally prefer to spend much less than that. They also estimate ongoing compliance costs of $10,000 per year for small towns. Our unnamed town is not that small but should give us a sense of magnitude for the numbers involved.

This town has a 2024 proposed budget of approximately $83 million. We reviewed the line items to try to get a sense of how much of that goes to digital services, which we defined as public-facing websites and software. Based on the published budget, that lands us somewhere in the range of $245K - $290K. Of that, approximately $80K is earmarked for a new website redesign, which suggests that the annual maintenance budget would usually be lower. In other words, our town does not even come closer to spending 1% of its budget on digital. Hunt is correct than any expectation that the town spend $830K on digital accessibility remediation would represent a very steep increase in its digital budget.

Digital footprint

What are our unnamed town’s citizens getting for this investment? We reviewed the town’s websites and tried to capture all of the digital services that the municipality or its agencies are providing or linking to.

• Municipal website including a significant number of PDFs
• Library website
• Library catalog and account management service
• Text message notifications service
• Municipal legal code website
• Property tax payment system
• Personal vital records request service
• Tax assessment records lookup service

Now our town may or may not be typical but the interesting thing here is that the vast majority of these services are hosted by third party providers.

Municipal website accessibility

The major exceptions here are the municipal and library websites. Building and maintaining a local government website is a bit more complicated and expensive than your typical website. There are legal requirements and potentially customizations beyond what a typical informational site would need to provide. So it’s not surprising that many municipalities hire vendors that specialize in local government websites; many even use custom CMS platforms that are tailored to government requirements.

One would hope that these vendors and platforms specializing in local government would have accessibility capabilities given that it’s a critical requirements for Title II entities. In practice, the municipal websites I’ve seen don’t fill me with confidence; our example town’s vendor even has an overlay on its own site. As with any website that was not designed or developed with accessibility in mind, testing and remediation for accessibility can be an expensive proposition at scale. But municipalities may choose to weigh these costs against the cost of starting fresh.

Our example town has already budgeted for a website redesign. If ADA compliance is on the town’s radar, any RFP or procurement process should include WCAG 2.1 Level AA conformance as a baseline requirement. The contractual terms should also hold the vendor accountable to accessibility conformance claims that it makes. It may be wise to invest in content accessibility training for the teams that write and author webpages but the net additional cost of accessibility on a new build should be zero. There may be other costs associated with monitoring the site for accessibility and preventing accessibility decay but these should not be very large for a typical municipal website.

Third party services

Beyond the websites themselves, most of the town’s digital footprint consists of third party services. This isn’t terribly surprising. Services like property records, legal code maintenance, and vital records are pretty typical use cases for local government. There’s no reason for any given municipality to develop its own custom solutions in these areas and many buy off-the-shelf from software-as-a-service providers. In fact, in most cases our town links out to services that are even hosted on the providers’ own domains.

Use of third party services puts our local governments in a tricky spot. The town is (and should be) responsible for the accessibility of the products that it relies on to provide government services. But again, any responsible procurement process should stipulate WCAG 2.1 Level AA conformance as a requirement when subscribing for the services.

And while these services may or may not conform to ADA Title II requirements currently, there are obvious economies of scale. Especially where the town merely links to a hosted cloud service (without maintaining its own on-premises copy of the service), the service provider should be able to remediate one and done. Depending on the costs and timelines associated with that remediation, the town may incur liability. But the providers have a strong incentive to resolve any accessibility issues. Once they do, they automatically resolve these issues for all of the local governments that subscribe to their service. And again, in theory the town should incur no individual costs.

The major exception we found is the library catalog system which is not hosted on a provider domain. It wasn’t obvious to us whether it was custom-built or purchased off-the-shelf. But even here, the software service is operated jointly with a consortium of dozens of other local library services. Whatever the costs of accessibility conformance may be, they should be achievable at scale with relatively low cost to each subscribing entity.

Document accessibility

There is one area we found that may be more burdensome to remediate is PDF documents. Like many government offices, our example town shares a significant amount of information in the form of PDFs. The good news for our town is that local governments are not required to remediate legacy documents that were already available online prior to the new rules going into effect. They will need to pull out PDFs that are still in use such as application forms and remediate. Going forward, the town should train teams to tag new documents for accessibility (as well as to provide remediate versions of existing documents upon request). Or alternatively they could hire a vendor to remediate documents as needed. Either way, while there are some non-scalable costs associated with documents, they should not be excessive.

Local Government Accessibility Scales

The challenges Hunt cites are all real and there may very well be less burdensome ways of requiring local governments to provide equal accommodations. It’s also true that entities that develop their own technology or procure custom solutions will have to devote greater attention and resources to ensuring those solutions are accessible. But overall the force multiplier effects that allow municipalities to acquire technologies punch above their weight digitally also apply to accessibility. Making government focused digital products and services more accessible can bring thousands of entities into compliance with the ADA at once and free up local governments to create efficient policies and plans to empower their staff to maintain that status over time.