Comments on DOJ proposal to apply the ADA to the Web

Helping Families. Supporting Communities. Empowering Individuals.

The Department of Justice has asked for comments on their proposal to apply the ADA to the web. The following responses are based on our experience developing and implementing the Illinois Information Technology Accessibility Act (IITAA) in the State of Illinois. The IITAA is a State law requiring State entities to ensure that websites and other information technology is accessible to people with disabilities. Our experience includes the development of the law in cooperation with a wide range of stakeholders, the creation of technical standards based on WCAG and Section 508, and the ongoing provision of training and technical assistance to organizations and developers creating accessible since the law went into effect in 2007.

1. Should the Department adopt the WCAG 2.0 "Level AA Success Criteria" as its standard for website accessibility for entities covered by titles II and III of the ADA?

The Department should adopt the updated Section 508 standards when they are finalized. These standards are based on WCAG 2.0 Level A and Level AA Success Criteria (Conformance Level AA). Experience with current Section 508 standards, which are based on WCAG 1.0 Conformance Level A, has shown that Level A is not adequate to ensure functional accessibility; Level AAA is too difficult to implement, and even the W3C states "it is not recommended that Level AAA conformance be required as a general policy."

2. Should the Department adopt the section 508 standards instead of the WCAG guidelines? Is there a difference in compliance burdens and costs between the two standards?

The Department should adopt the updated Section 508 standards when they are finalized (not the current Section 508 standards). The updated Section 508 standards will be effectively equivalent to WCAG 2.0 Level AA, so the compliance burden and cost will be comparable. However, it will be more cost effective for organization that also must comply with Section 508 (because they are, or sell their products to, Federal agencies) to have a single set of standards to read, interpret, and work with.

3. How should the Department address the ongoing changes to WCAG and section 508 standards? Should covered entities be given the option to comply with the latest requirements?

The Department should reference the updated Section 508 standards rather than replicate them, and covered entities should be required to comply with the standards that are current at the time the time that they develop (or substantially modify) a web site/web application. This way, requirements under the ADA will stay the consistent with requirements under Section 508, and there will be no danger of ADA requirements being out-of-date/out-of-sync even for a short period of time.

4. Given the ever-changing nature of many websites, should the Department adopt performance standards instead of any set of specific technical standards for website accessibility?

The Department should adopt the updated Section 508 "Functional Performance Criteria" as companion/alternate means of demonstrating compliance. Covered entities should be given the option of documenting technical compliance with the technical success criteria/techniques or demonstrating functional compliance with the functional performance criteria. This dual approach allows for new and innovative approaches that achieve the desired end results (the functional performance criteria), even if no specific success criteria/techniques have yet been documented.

5. Should the Department adopt any specific parameters regarding its proposed coverage limitations?

The limitations of scope proposed, particularly the exclusion of web sites/content for "personal, noncommercial use" and the limitation to "legally established business entities," are appropriate and reasonable. Any such definition will have gray areas and edge cases that are difficult to categorize; the emphasis should be placed on establishing a common sense definition that works in the majority of situations.

6. What resources and services are available to public accommodations and public entities to make their websites accessible? What is the ability of covered entities to make their websites accessible with in-house staff? What technical assistance should the Department make available to public entities and public accommodations to assist them with complying with this rule?

More information resources than can be listed here are available online -- Prominent resources include the World Wide Web Consortium Web Accessibility Initiative, Section508.gov, WebAIM, the Illinois Center for Information Technology Accessibility, and the Illinois Department of Human Services IITAA site (along with many others). However, the ability of covered entities to make effective use of these resources to make their websites accessible will vary drastically, ranging to both extremes. Additional technical assistance resources could be useful, but should not replicate or displace the resources that currently exist; one resource that doesn't currently exist but would be particularly useful would be a repository of accessible code snippets/widgets.

7. Are there distinct or specialized features used on websites that render compliance with accessibility requirements difficult or impossible?

There are technologies, coding techniques, code libraries, tools, and media types that can make accessibility difficult or impossible to achieve. However, in most cases, there are other technologies, techniques, libraries, tool, and media types that can achieve the same or similar functionality while also being accessible. Often, difficulties and challenges are due to selecting a technology/technique/library/tool/etc. first and subsequently attempting to address accessibility; it is much more effective to consider accessibility when making the selection of technology/technique/library/tool/etc. The Department should encourage -- or at least point out the importance of -- considering accessibility when selecting technology/technique/etc.

8. To what extent can accessible alternatives still be provided? Might viable accessible alternatives still exist for simple, non-dynamic websites?

Experience has shown that the use of alternative, accessible versions is rarely effective or efficient. The use of such alternatives should be discouraged, but allowed, as they may be necessary to allow use of new technologies that aren't yet accessibility supported.

9. Are the proposed effective dates for the regulations reasonable or should the Department adopt shorter or longer periods for compliance?

As proposed, the Department should set an effective date of six months after the publication of the final rule for "newly created or completely redesigned" web sites/applications and for portions of sites/applications that are substantially modified after the effective date. We would caution against requiring pre-existing sites/applications to comply unless they are substantially modified after the effective date. (See reasoning in response to Question 10.)

10. The Department seeks comment regarding whether such a requirement would cause some businesses to remove older material rather than change the content into an accessible format. Should the Department adopt a safe harbor for such content so long as it is not updated or modified?

Many web sites have thousands (and some millions) of existing pages that would need to be made accessible. The cost of remediating this many pages would prohibitive in many cases, leaving entities no choice other than to remove older pages, sites, and applications. When the State of Illinois considered this issue in regard to the Illinois Information Technology Accessibility Act (IITAA), requiring compliance ONLY of newly created and substantially modified pages/sites/applications was the only approach deemed achievable and fiscally possible. If the Department attempts to apply accessibility requirements retroactively, it should expect substantial resistance from the MANY organizations that currently have web sites of more than a few hundred pages.

11. Should the Department take an incremental approach in adopting accessibility regulations applicable to websites and adopt a different effective date for covered entities based on certain criteria?

The Department should not take an incremental or categorical approach, but should apply requirements only to websites/content that is newly created or substantially modified after the effective date.

12. What data source do you recommend to assist the Department in estimating the number of public accommodations and State and local governments to be covered by any website accessibility regulations adopted by the Department under the ADA?

[No answer.]

13. What are the annual costs generally associated with creating, maintaining, operating, and updating a website? What additional costs are associated with creating and maintaining an accessible website?

The cost of creating, maintaining, operating, and updating a website varies drastically from organization to organization, based primarily on the complexity of the site content and the level of skill of the resources used to create the site. The primary difference in cost between and accessible and non-accessible site is due to the learning curve â€" with a development team that already knows how to address accessibility, there is little or no difference in cost between developing/maintaining an accessible and a non-accessible site. The cost of training a development team can vary dramatically, depending on the level of skill already possessed by the developers.

14. What are the benefits that can be anticipated from action by the Department to amend the ADA regulations to address website accessibility?

The primary tangible benefit to covered entities is the reduction in risk and potential cost of legal action regarding accessibility. Because there is inconsistency in current court rulings on the matter, almost any organization faces at least the risk and cost of litigation if a complaint were raised. Additionally, because the cost of changing software rises exponentially with time, addressing accessibility early in the development cycle is significantly more cost-effective than addressing it retroactively when a complaint is lodged. There are also minor improvements in cost-effectiveness that may come accompany the more flexible and reusable coding techniques that are often used in addressing accessibility (e.g., the separation of content and formatting through the use of Cascading Style Sheets, etc).

15. What, if any, are the likely or potential unintended consequences (positive or negative) of website accessibility requirements?

Where accessibility requires significant additional time and/or cost -- such as when providing captioning and/or audio description for multimedia -- it is very likely that many covered entities will choose to reduce or eliminate their use of these technologies. Until more reliable automated techniques exist for providing captioning and audio description, the requirement of these features will limit the use of the related features/technologies. It may be appropriate to consider alternative requirements in these cases, such as the option of providing accessible alternatives on demand (within a reasonable timeframe) -- it is not an ideal solution, but may be necessary until more automated techniques are available.

16. Are there any other effective and reasonably feasible alternatives to making the websites of public accommodations accessible that the Department should consider?

Providing a single, natively accessible website/application is typically the most effective approach to accessibility. The provision of accessible alternatives may be a necessary option to allow for new technologies and/or special cases. The allowance for accessibility on-demand (within a reasonable timeframe) may be appropriate for manual effort-intensive tasks such as captioning and audio description.

17. The Department seeks input regarding the impact the measures being contemplated by the Department with regard to Web accessibility will have on small entities if adopted by the Department.

The limitation of requirements to websites/content created or substantially modified after the effective date will help to minimize the impact on small organizations with limited resources for web development.

18. Are there alternatives that the Department can adopt, which were not previously discussed in response to Questions 11 or 16, that will alleviate the burden on small entities?

[No answer.]

19. Are there additional issues or information not addressed by the Department´s questions that are important for the Department to consider?

The biggest barrier organizations often face in addressing accessibility is the lack of the desire/directive/will to do so. Many of the developers we work with are willing and even eager to address accessibility, but have difficulty getting management to support doing so. Clarification that the ADA does apply to websites would be a great help to many of the developers facing this frustrating dilemma, and would undoubtedly have tremendous impact on the overall accessibility of the web.