In May 2016, DOJ published a Supplemental Advance Notice of Proposed Rulemaking (SANPR) on the accessibility of state and local government websites under Title II of the Americans with Disabilities Act (ADA).

On May 9, the U.S. Department of Justice (DOJ) published a Supplemental Advance Notice of Proposed Rulemaking (SANPRM) on the accessibility of state and local government websites under Title II of the Americans with Disabilities Act (ADA).  

DOJ is seeking public input on the SANPRM and will accept comments until August 8, 2016. The SANPRM is organized into 10 topic areas, and the agency asks 123 specific questions, which are listed separately in the appendix to this brief. Those submitting comments do not need to respond to every question or weigh in on every topic – comments can be given on any or all of the DOJ questions. The agency is also asking for additional information not addressed by the questions if it would be helpful in understanding the implications of imposing ADA requirements on State and local government Web sites.[1]  

Given the millions of individuals employed by State and local government entities, and the many hiring and workplace tools and resources those entities make available through the Web, the SANPRM has significant implications for the employment of people with disabilities. To facilitate and encourage comments from stakeholders committed to accessible technology in the workplace, PEAT has prepared this policy brief and overview of the proposed rule (with page references in brackets) and the issues/questions on which DOJ is seeking input and guidance.   

I. Background

II. DOJ's Request for Public Comment

III. Exceptions to Web Access Requirements

IV. Conforming Alternate Versions of Web Sites for People with Disabilities

​V. Compliance Limitations and Other Duties

VI. Additional Issues for Public Comment

Footnotes

Appendix—DOJ QUESTIONS

I.    BACKGROUND 

A.  Statutory History [p. 28658]

The Americans with Disabilities Act of 1990 (ADA) is a comprehensive civil rights law prohibiting discrimination on the basis of disability. It broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life.  Title II of the ADA protects individuals from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities.[2]   

B.  Rulemaking History [p. 28658]

DOJ is responsible for writing and enforcing the regulations that implement Title II.  The chronology of their rulemaking as it relates to Web accessibility is helpful in understanding the development of the current SANPRM: 

• 1991: DOJ issued final rules implementing Title II of the ADA in 1991 and nothing about Web accessibility was mentioned.[3] Given that the Web was then in its infancy – and State and local governments did not use it as a means of providing services or information to the public – this was not surprising. 
• 2003: By 2003, the Internet was transforming interactions between the public and governmental entities. In recognition of that fact, DOJ published Accessibility of State and Local Government Websites to People with Disabilities (which is still in use) to provide guidance on making Web sites accessible. The goal was to ensure that citizens with disabilities had equal access to the State and local government services, programs, and activities provided through those Web sites. The document says that State and local governments might be able to meet their Title II obligations by providing an “alternative accessible means” of obtaining the information and services (e.g., a staffed telephone line). However, it adds that alternative means are “unlikely to provide an equal degree of access in terms of hours of operation and the range of options and programs available.” This is even truer today, given that the content and complexity of Web sites has increased. 
• 2004 and 2008: The following year DOJ published an Advance Notice of Proposed Rulemaking to begin the process of updating the Title II rules[4]  and adopting revised standards for accessible design based in part on the ADA and Architectural Barriers Act Accessibility Guidelines. Four years later DOJ issued a Notice of Proposed Rulemaking proposing revisions to the Title II regulations so they would be consistent with those guidelines. DOJ did not include Web accessibility provisions but received numerous public comments urging the agency to issue Web accessibility rules under the ADA.  
• 2010: The final Title II rule published in 2010 did not include specific requirements for Web accessibility; however,  the DOJ guidance accompanying the final rule responded to the comments it had received with the following statement: 
  “The Department agrees that the ability to access, on an equal basis, the programs and activities offered by public entities through Internet-based Web sites is of great importance to individuals with disabilities, particularly those who are blind or who have low vision.  When the ADA was enacted in 1990, the Internet was unknown to most Americans. Today, the Internet plays a critical role in daily life for personal, civic, commercial, and business purposes. In a period of shrinking resources, public entities increasingly rely on the [W]eb as an efficient and comprehensive way to deliver services and to inform and communicate with their citizens and the general public. In light of the growing importance Web sites play in providing access to public services and to disseminating the information citizens need to participate fully in civic life, accessing the Web sites of public entities can play a significant role in fulfilling the goals of the ADA.” 

That same year, DOJ published an Advance Notice of Proposed Rulemaking (ANPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. In it, DOJ announced it was considering revising the regulations implementing Title II and Title II to establish requirements for Web accessibility. In response, the agency received approximately 400 public comments addressing issues relevant to both titles.  

• 2015: In the fall of 2015, DOJ announced that it had decided to pursue separate rulemakings for Title II and Title III addressing Web accessibility.[5]    
• 2016: After considering the comments the agency received in response to its 2010 ANPRM, DOJ refined its proposal and issued the current SANPRM focusing on the accessibility of Web information and services of State and local government entities and seeking public comment on specific issues and questions.

Most importantly, despite the lack of updated regulations, DOJ’s current stated position is that the ADA covers Internet access: 

[DOJ] has taken the position that title II covers Internet Web site access. Public entities that choose to provide services through web-based applications (e.g., renewing library books or driver’s licenses) or that communicate with their constituents or provide information through the Internet must ensure that individuals with disabilities have equal access to such services or information, unless doing so would result in an undue financial and administrative burden or a fundamental alteration in the nature of the programs, services, or activities being offered.  * * * The Department has enforced the ADA in the area of website accessibility on a case-by-case basis under existing rules consistent with the guidance noted above, and will continue to do so until the issue is addressed in a final regulation.[6]  [emphasis added]

C.  The Need for DOJ Action 

1.  Use of Web Sites by State and Local Governments is Growing [p. 28659] 

State and local governments are increasingly using the Internet to disseminate information and offer services, programs, and activities to the public. Many of them use the Web to promote employment opportunities, with job applications, training opportunities, and other work-related information and tools being provided online. However, many individuals with disabilities are often denied effective and meaningful access to these employment opportunities and services, programs, and activities because of inaccessible Web sites. This is creating a growing “digital divide"–where citizens with disabilities are prevented from having the same opportunities as those without disabilities in securing employment and accessing the services, programs, and activities of their State and local governments. 

2.  Barriers to Web Accessibility [p. 28660] 

Millions of people in the U.S. have disabilities and/or functional limitations that affect their use of the Web. Some people use assistive technology devices or software to enable them to navigate Web sites or access information contained on those sites (e.g., individuals who do not have use of their hands may use speech recognition software instead of a mouse to navigate a Web site). But many Web sites don’t incorporate or activate features that enable users with disabilities to access all of the Web site’s information, even when using assistive technology.  

For example, individuals who are deaf cannot to access information in Web videos if there are no captions. Those with low vision may be unable to read Web sites that do not allow text to be resized or provide sufficient contrast. People with limited manual dexterity or vision disabilities who use assistive technology that enables them to interact with Web sites cannot access sites that do not support keyboard alternatives for mouse commands. And many individuals often encounter difficulty using portions of Web sites that require timed responses from users but do not provide an option indicating that they need more time to respond. 

These kinds of barriers greatly impede the ability of many individuals with disabilities to access employment opportunities and other State and local services, programs, and activities. In many instances, removing Web site barriers is neither difficult nor costly.  

3.  Compliance with Voluntary Accessibility Standards has been Insufficient in Providing Access [p. 28660] 

The Internet as it is known today did not exist when Congress enacted the ADA and, as pointed out above, neither the original law nor DOJ’s ADA regulations specifically address access to Web sites. However, Congress contemplated that DOJ would apply the ADA in a manner that evolved over time and delegated authority to the U.S. Attorney General to promulgate regulations to carry out the Act’s broad mandate.[7] Consistent with this approach, DOJ stated in the preamble to the 1991 ADA regulations that they should be interpreted to keep pace with developing technologies.[8] The Title II regulation says that it applies to all services, programs, and activities provided or made available by public entities[9] and, as discussed above, DOJ affirmed the application of the ADA to public entity Web sites in its publication Accessibility of State and Local Government Websites to People with Disabilities. 

Despite the clear application of the ADA to State and local government Web sites, technical Web standards under the ADA would give public entities specific guidance on how to make those Web sites accessible.  The ADA’s Title II regulation currently provides such guidance on physical structures, i.e., the ADA Standards for Accessible Design, which provide technical requirements on how to make physical environments accessible.  Similar clarifying guidance for public entities on Web standards is also needed. 

Voluntary standards and structures have been developed for the Internet through collaborative global efforts.  In the area of accessibility, the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C) created the Web Content Accessibility Guidelines (WCAG).  These guidelines cover a wide range of recommendations for making Web content more accessible for everyone.  

Voluntary standards can be sufficient in certain contexts, particularly where economic incentives align with the standards’ goals.  However, reliance on voluntary compliance with Web site accessibility guidelines has not resulted in equal access for persons with disabilities.   

Despite DOJ’s clearly stated position that Title II of the ADA requires all services, programs, and activities of public entities, including those available on Web sites, to be accessible – and the availability of voluntary Web accessibility standards – individuals with disabilities continue to struggle to obtain access to State and local government Web sites.  As a result, DOJ has addressed Web access in their many settlement agreements with State and local entities.  Other Federal agencies are also taking enforcement action against public entities regarding the lack of access for persons with disabilities to their Web sites.[10]   

DOJ believes that adopting Web accessibility standards will provide clarity to public entities regarding how to make accessible the services, programs, and activities they offer the public online and would provide individuals with disabilities consistent and predictable access.   Because Web sites can be accessed at any time, State and local government services, programs, and activities are available to the public at their convenience.  Accessible “alternative means” for obtaining access to services, programs, and activities offered on Web sites, such as a staffed telephone line, would need to afford individuals with disabilities equivalent access (i.e., 24 hours a day/7 days a week).  

As indicated in their 2003 guidance, DOJ has questioned whether alternative means can provide an equal degree of access.  As Web sites have become more interconnected, dynamic, and content-rich, it has become more difficult – if not impossible – for public entities to replicate by alternative means the easy access to services, programs, and activities offered on the Web.  Individuals with disabilities—like other members of the public—should be able to equally engage with these services, programs, and activities directly through the Web.  Opportunities for such engagement, however, require that Web content be accessible to individuals with disabilities.  

II.      DOJ’S REQUEST FOR PUBLIC COMMENT

In the SANPRM, DOJ identifies 123 questions, organized into 10 specific topics, on which they would like comments: (1) The meaning of “Web content”; (2) Access requirements; (3) Time-frames for compliance; (4) Captions for live audio content in synchronized media; (5) Equivalent facilitation; (6) Alternative requirements for certain categories of covered entities; (7) Exceptions to web access requirements; (8) Alternate versions of Web sites; (9) Compliance limitations; and (10) Additional issues.  Each of these is discussed and analyzed in more detail below.

A.  The Meaning of Web Content  [p. 28662, Question 1]

DOJ is considering including all content that State and local government entities make available to the public on their Web sites and Web pages, regardless of whether it is viewed on desktop computers, notebook computers, smart phones, or other mobile devices.  

The Web Content Accessibility Guidelines (WCAG 2.0) defines Web content as “information and sensory experience to be communicated to the user by means of a user agent, including code or markup that defines the content’s structure, presentation, and interactions.”[11]   DOJ is considering a definition that is based on the WCAG 2.0 definition but slightly less technical so it could be more easily understood: “Information or sensory experience—including the encoding that defines the structure, presentation, and interactions—that is communicated to the user by a Web browser or other software.  Examples of Web content include text, images, sounds, videos, controls, and animations.” This definition attempts to describe the different types of information and experiences available on the Web and would include the encoding (i.e., programming code) used to create the structure, presentation, or interactions on Web pages, ranging from static Web pages (e.g., Web pages with only textual information) to dynamic Web pages (e.g., those with live Web chats).  

The definition would not include Web browsers or other software that retrieves and interprets the programming code and displays it as a Web site or Web page.  It also would not include other software, such as plug-ins, that help to retrieve and display information and experiences that are available on Web sites/pages of public entities. For example, when a person clicks on a PDF document or link, Adobe Reader (which is “plug-in” software) will open the PDF document either within the Web browser or directly in Adobe Reader, depending on the Web browser’s settings. Similarly, other popular plug-ins, such as Adobe Flash Player, Apple QuickTime Player, and Microsoft Windows Media Player allow users to play audio, video, and animations. The fact that a plug-in is required to open the PDF document, audio file, or video file is not always apparent. 

B.  Access Requirements for Web Sites and Web 

1.  Standards for Web Access [p. 28662, Question 2] 

DOJ is considering proposing WCAG 2.0 Level AA as the accessibility standard that would apply to all State and local government Web sites and Web content. 

The World Wide Web Consortium (W3C®) is the principal international organization involved in developing protocols and guidelines for the Web, including a variety of technical standards and guidance on privacy, internationalization of technology, and accessibility.  As discussed above, the organization’s Web Accessibility Initiative developed the Web Content Accessibility Guidelines (WCAG) to help Web developers create content that is accessible to individuals with disabilities. WCAG 2.0, the most recent version, was published in December 2008 and it has become the internationally recognized benchmark for Web accessibility. Designed to be “technology neutral” (meaning it does not rely on the use of specific Web technologies), it accommodates the constantly evolving Web environment, is usable with current and future Web technologies, and allows Web developers flexibility and potential for innovation.  

For a Web page to conform to WCAG 2.0, it must satisfy all of the “success criteria” under one of the three levels of conformance: A, AA, or AAA. The conformance levels indicate a measure of accessibility: (1) Level A, the minimum level, contains criteria for basic Web accessibility; (2) Level AA, the intermediate level of conformance, includes all of the Level A criteria and enhanced criteria providing more comprehensive Web accessibility; and (3) Level AAA, the maximum level of conformance, includes all criteria in Levels A and AA, plus additional criteria that can provide a more enriched user experience.[12]   

Based on independent research and its review of previous public comments, DOJ is considering proposing WCAG 2.0 Level AA as the technical standard for State and local government Web sites because it includes criteria that provide more comprehensive Web accessibility to individuals with disabilities—including those with visual, auditory, physical, speech, cognitive, developmental, learning, and neurological disabilities. In addition, Level AA conformance is widely used, making it generally feasible for Web developers to implement.[13]   

Note that while WCAG 2.0 provides that for “Level AA conformance, the Web page [must] satisf[y] all the Level A and Level AA Success Criteria,” individual Success Criteria in WCAG 2.0 are labeled only as Level A or Level AA. See Conformance Requirements, Web Content Accessibility Guidelines 2.0. A person reviewing individual requirements in WCAG 2.0, accordingly, may not understand that both Level A and Level AA Success Criteria must be met in order to attain Level AA. Therefore, for clarity, DOJ is considering that any specific regulatory text it proposes regarding compliance with WCAG 2.0 Level AA should provide that covered entities must comply with both Level A and Level AA Success Criteria and Conformance Requirements specified in WCAG 2.0.   

2.  Timeframe for Compliance [p. 28684, Questions 3-4] 

DOJ is considering making the rule effective two years after it is published in final form.

For over a decade, DOJ has provided technical assistance materials and engaged in enforcement efforts specifically addressing Web accessibility. While not all covered public entities have adopted WCAG 2.0 Level AA, there is some degree of familiarity with the WCAG standards. Since this may help mitigate the time needed for compliance, DOJ is considering a two-year implementation timeframe for most entities in an effort to balance the importance of accessibility for individuals with disabilities with the resource challenges faced by State and local governments. Public entities will need to ensure that the Web sites and Web content they make available to members of the public comply with WCAG 2.0[14]  unless they can demonstrate that compliance would result in a fundamental alteration in the nature of a service, program, or activity or undue financial and administrative burdens. The one exception in this timeframe is discussed in the next section.

3.  Captions for Live Audio Content in Synchronized Media [p. 28665, Questions 5-7] 

DOJ is considering making the requirements for captioning live-audio content in synchronized media effective three years from the publication of the final rule. 

WCAG 2.0[15]  requires synchronized captions for all live-audio content in synchronized media so that people who are deaf or hard of hearing can watch real-time presentations. Captions provide the part of the content available via the audio track, including dialogue, identification of who is speaking, and notation of sound effects and other audio.[16] Because of the lack of mature technologies for providing real-time captions for live events presented on the Web, DOJ recognizes that providing this may be technically difficult to implement and may create additional costs and burdens for public entities. However, the agency also recognizes that technologies used to provide this are improving and that covered entities are increasingly providing live Webcasts of public hearings and committee meetings, the majority of which are not accessible to individuals with disabilities. In order for individuals with disabilities to participate in civic life more fully, State and local governments need to provide real-time captions for events and activities broadcast on the Web.  

Information gathered from previous public comments and independent research suggests that public entities may need more time to make this type of Web content accessible. Accordingly, DOJ is considering the following compliance schedule and seeking public input on how it should frame those proposed requirements: Effective three years from the publication of this final rule, a public entity shall ensure that live-audio content in synchronized media it makes available to members of the public complies with Level AA Success Criteria and Conformance Requirements specified in 2008 WCAG 2.0, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. 

4.  Equivalent Facilitation [p. 28666, Questions 8-9] 

DOJ is considering including a provision that addresses the “equivalent facilitation” principle.

DOJ recognizes that State and local governments should be permitted to use designs, products, or technologies as alternatives to those prescribed for any Web accessibility requirements as long as these alternatives result in substantially equivalent or greater accessibility and usability.  The purpose of allowing for “equivalent facilitation” is to encourage flexibility and innovation while still ensuring access. The ADA Standards for Accessible Design contain a similar equivalent facilitation provision and DOJ is considering including a provision that addresses this principle as it applies to Web accessibility. 

C.  Alternative Requirements for Specified Entities 

DOJ is asking for public comments on alternate conformance levels, compliance date requirements, and other methods that would minimize any significant economic impact on small public entities and special districts.  

1.  Small Public Entities [p. 28666, Questions 10-16]

DOJ is interested in receiving comments on whether small public entities[17] should (1) have an additional year (i.e., three years total) or other expanded timeframe to comply with the specific Web requirements DOJ proposes; (2) use WCAG 2.0 Level A, instead of AA; and (3) be defined using certain population thresholds or other criteria.  In addition, DOJ is asking whether there is a certain subset of very small public entities (e.g., entities with populations below 500) for which compliance with even Level A would be too burdensome and the agency should consider deferring compliance with WCAG 2.0 altogether at this time for those entities. 

2.  Special Districts [p. 28667, Questions 17-19]

DOJ is also interested in comments on how it should frame the Web access requirements for special district governments.[18] DOJ is considering whether special district governments should be required to meet a lower conformance standard (i.e., WCAG 2.0 Level A) and be given three years for compliance or another extended compliance date. 

III.    EXCEPTIONS TO WEB ACCESS REQUIREMENTS [p. 28668]

DOJ is considering the following exceptions to Web access requirements:  (1) archived Web content; (2) certain preexisting conventional electronic documents; (3) third-party Web content linked from a public entity’s Web site; and (4) certain Web content posted by third parties on a public entity’s Web site.

A.  Archived Web Content [p. 28668, Questions 20-21]

Many State and local government Web sites include archived Web content containing information that is outdated, not necessary, or replicated elsewhere. DOJ believes providing an exception from the Web access requirements may be appropriate for “archived Web content,” defined as content that is (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. 

Under the proposal DOJ is considering, archived Web content would need to meet all three prongs of the definition to be exempt from the Web access requirements of any proposed rule. Note that despite any exception DOJ might propose, individual requests for access to these archived documents would still need to be addressed on a case-by-case basis. This is to ensure that people with disabilities receive the benefits and services of the public entity’s archived Web content through other effective means.  

B.  Preexisting Conventional Electronic Documents [p. 28669, Question 22]

DOJ is considering excepting from any Web access rule preexisting conventional electronic documents.

DOJ’s research indicates that most public entity Web sites contain large numbers of electronic documents (e.g., Microsoft Word documents, pdfs, spreadsheets) for use by the public in either an electronic form or as printed output and that are not suitable to be archived. Because of the substantial number of these documents on State and local government Web sites, and the difficulty in remediating complex types of information and data to make them accessible after-the-fact, the agency is considering exempting “conventional electronic documents.” This means that documents available on the entity’s Web site before the determined compliance date would not be required to comply with the Web access standards unless such documents are to be used by members of the public to apply for, gain access to, or participate in a public entity’s services, programs, or activities. For example, a public entity would need to make an application for a business license accessible and also need to make accessible any other materials needed to obtain the license, complete the application, and understand the process for applying. DOJ believes that under such a proposal it would be sufficient if the same materials are available in an accessible format on the public entity’s Web site.

C.  Third-Party Web Content [p.  28669]

DOJ is considering certain limited exceptions related to third-party content, although public entities would still be responsible for ensuring that the platforms they provide for posting any third-party Web content comply with the final Web access rule.

1.  Linked Third-Party Web Content [p. 28570, Question 23]

Many State and local government Web sites include links to other Web sites that contain information or resources offered by third parties with whom they are not affiliated. Typically, the public entity has no responsibility for the Web content or the operation of the third party’s Web site. DOJ is considering proposing that third-party Web content linked from the public entity’s Web site not be required to comply with the Web access standards unless 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.

2.  Posted Third-Party Web Content [p. 28670, Questions 24-32]

DOJ is considering generally excepting Web content posted by third parties on public entities’ Web sites from compliance with the WCAG 2.0 Level AA standards.  However, the agency is also considering requiring Web content posted by a third party to comply with WCAG 2.0 Level AA if it is essential for engaging in civic participation. The reason for the exception would be that public entities do not have total control over the volume or substance of content posted by a third party on its Web site. To the extent that any content is reviewed by public entities before it is posted, such review often is limited to automated pre-screening to prevent fraud, abusive language, or spamming and they may lack the practical capacity to make such material accessible. However, there are times when access to content posted by third parties may be so essential for civic participation that the public entity should be required to make the Web content accessible.  

DOJ notes that Web content created by a third party that a public entity decides to post itself would still be subject to WCAG 2.0 Level AA. In addition, if DOJ were to except Web content posted by third parties as above, such an exception would provide public entities with a greater ability to direct their resources toward ensuring that the Web content the public entities themselves make available to the public is accessible. 

3.  Third-Party Filings in Certain Administrative Proceedings [p. 28671, Questions 33-36]

DOJ is considering including third-party filings in judicial and quasi-judicial administrative proceedings within the exception for third-party content posted on a public entity’s Web site. While access to third-party filings in judicial and quasi-judicial administrative proceedings would seem to fit within the category of information essential to engage in civic participation, DOJ is considering including these types of filings within the exception for third-party content posted on a public entity’s Web site. If they are included, individual requests for access to these excepted documents would still need to be addressed on a case-by-case basis in order to ensure that individuals with disabilities are able to receive the benefits or services of the public entity’s records through other effective means. Because of the nature of legal proceedings, it is imperative that individuals with disabilities be provided timely access to the documents to which they request access so that they can take part in the legal process in a manner equal to that afforded to others. 

4.  Third-Party Social Media Platforms [p. 28672, Questions 37-38]

Public entities are increasingly using third-party platforms, including social media platforms, to host public forums or to provide information about their services, programs, and activities stead of or in addition to hosting such forums and information on their own Web sites. At this time, DOJ is considering deferring proposing a specific technical accessibility standard that would apply to public entities’ use of third-party social media platforms until DOJ issues a rulemaking for public accommodations and Web site accessibility under Title III of the ADA.  

For purposes of this possible deferral, the term “social media platforms” means Web sites of third parties whose primary purpose is to enable users to create and share content in order to participate in social networking (i.e., the creation and maintenance of personal and business relationships online through Web sites such as Facebook, YouTube, Twitter, and LinkedIn). The only social media platforms that DOJ is aware of are public accommodations covered by Title III; thus, DOJ believes it may be appropriate to defer addressing social media platforms for this Title II rulemaking until it issues a proposed Title III Web accessibility regulation. 

Public entities would continue to have obligations under Title II to provide persons with disabilities access to these online services, programs, or activities. For example, if a public entity publishes information about an upcoming event on a third-party social media Web site, it must ensure that the same information about the event is also available to individuals with disabilities elsewhere, such as on the public entity’s accessible Web site. Likewise, if a public entity solicits public feedback on an issue via a social media platform, the public entity must provide an alternative way to invite and receive feedback from person with disabilities on that topic. 

D.  Password-Protected Web Content of Public Educational Institutions [p. 28672, Questions 39-47] 

All services, programs, or activities available to the public on the Web sites of public educational institutions would be required to comply with the technical standards DOJ adopts. However, DOJ is considering a proposal to except content available on password-protected Web sites for specific classes unless and until a student enrolls in that particular class or course and, because of a disability, would be unable to access the posted content.
 
In addition to the information available to the public on the Web sites of public educational institutions, the Web sites of many schools, colleges, and universities also make certain services, programs, and activities available to a discrete and targeted audience of individuals (e.g., students taking particular classes or courses). This information is often provided using a Learning Management System (LMS) or similar platform that can provide secure online access and allow the exchange of educational and administrative information in real time.  For example, faculty and staff can create and collect assignments, post grades, provide real-time feedback, and share subject-specific resources. Parents can track their children’s attendance, assignments, individualized education programs (IEPs), grades, and upcoming class events.  To access the information available on these platforms, students—and sometimes parents—generally must obtain password or login credentials from the educational institution. 

DOJ is therefore considering proposing a provision that would require that the educational platforms that public educational institutions use be readily accessible. However, because access to password-protected class or course Web content is limited to a discrete population, which may not always include a person with a disability, DOJ is also considering a provision that would not require the content on password-protected class pages to be made accessible unless and until a student with a disability enrolls in such a class or course.  

The exception under consideration by DOJ is not intended to apply to password-protected content for classes or courses, that are made available to the general public without enrolling at a particular educational institution and that generally only require perfunctory, if any, registration or payment to participate in the classes or courses, including those offered exclusively online (e.g., many Massive Open Online Courses (MOOCs)). Access to the content on these password-protected Web sites is not confined to a discrete student population within an educational institution, but is instead widely available to the general public—sometimes without limits as to enrollment. Accordingly, any individual, including one with a disability, may enroll or participate at almost any time.  Under these circumstances, it is DOJ’s position that the public entity should make such class or course content accessible from the outset of the class or course regardless of whether a student with a disability is known to be participating in the class or course because a student with a disability, like any other student, may enroll at any time.  

DOJ is also concerned about the rights of parents with disabilities, particularly in the public elementary and secondary school context. Thus, under the proposal currently under consideration by DOJ, once a student is enrolled in a particular class or course and that student has a parent with a disability, the content available on the password-protected Web site would also be required to be made accessible in a timely manner. 

IV.     CONFORMING ALTERNATE VERSIONS OF WEB SITES FOR PEOPLE WITH DISABILITIES [p. 28673, Questions 48-51]

DOJ is considering allowing the use of conforming alternate versions to provide access to Web content in two specific limited circumstances. 

In order to comply with WCAG 2.0, Web content must satisfy one of the defined levels of conformance (i.e., Level A, AA, or AAA) or a separate accessible Web page must be provided that satisfies one of the defined levels of conformance as an alternative to the inaccessible Web page. A separate accessible Web page is a “conforming alternate version” that is up-to-date, containing the same information and functionality as the inaccessible Web page, and, therefore, provides individuals with disabilities equivalent access to the information and functionality provided to individuals without disabilities.[19] A conforming alternate version of a Web page is intended to be a “fallback” option as the preferred method of conformance is to make all content directly accessible. 

DOJ is concerned that this will be interpreted as permitting the development of two separate Web sites—one for individuals with disabilities and another for individuals without disabilities—even when doing so is unnecessary. DOJ is also concerned that the creation of separate Web sites for individuals with disabilities may result in unequal access to information and functionality. However, as the W3C® explains, certain limited circumstances may warrant the use of conforming alternate versions of Web pages. For example, a conforming alternate Web page may be necessary when a new emerging technology is used on a Web page but the technology is not able to be made accessible, or when a Web site owner is legally prohibited from modifying the Web content.  

DOJ  is considering permitting the use of conforming alternate versions of Web page and Web content, as defined by 2008 WCAG 2.0, to comply with Web accessibility requirements only under the following two circumstances:

1)    When it is not possible to make Web content directly accessible due to technical (e.g., technology is not yet accessibility supported) or legal (e.g., Web content is protected by copyright) limitations; or 

2)    When used to provide access to conventional electronic documents.

A.  Technical or Legal Limitations [p. 28674, Questions 48-51]

DOJ believes persons with disabilities must be provided access to the same Web content that is available to persons without disabilities unless providing direct access to that Web content to persons with disabilities is not possible due to technical or legal limitations. DOJ’s proposal under consideration would permit the use of conforming alternate versions of Web pages and Web content to comply with Web accessibility requirements only where it is not possible to make Web pages or Web content directly accessible due to technical limitations (e.g., technology is not yet accessibility supported) or legal limitations (e.g., Web content is protected by copyright). The responsibility for demonstrating a technical or legal limitation would rest with the covered entity. 

For many individuals with disabilities, having direct access to a main Web page that is accessible is likely to provide the best user experience; however, DOJ is aware that for some individuals with disabilities a Web page specifically tailored to accommodate their specific disability may provide a better experience. Nonetheless, requiring all individuals with disabilities who could have a better experience using the main Web page to use a separate or segregated Web page created to accommodate certain disabilities is concerning and inconsistent with the ADA’s integration principles. 

B.  Providing Access to Conventional Electronic Documents [p. 28674-28675, Questions 48-51]

With regard to conventional electronic documents (e.g., PDFs, word processing documents, or other similar electronic documents) DOJ is considering proposing that where a public entity provides more than one version of a single document, only one version of the document would need to be accessible and, thus, that accessible version would be the conforming alternate version for the inaccessible version. For example, if a public entity provides both PDF and Microsoft Word versions of a single document, either the PDF or the Microsoft Word document would need to comply with WCAG 2.0, but both would not need to comply. Therefore, in this example, a public entity would not be required to remediate an inaccessible PDF where a WCAG 2.0-compliant Microsoft Word version is also provided on the public entity’s Web site (i.e., the Microsoft Word document acts as a conforming alternate version providing accessible information to individuals with disabilities). 

V.    COMPLIANCE LIMITATIONS AND OTHER DUTIES [p. 28675]

DOJ is considering not requiring public entities to take any action that would result in a fundamental alteration or undue financial and administrative burden.  

The limitations DOJ is considering are consistent with the compliance limitations currently provided in the Title II rule, which are very familiar to public entities[20] : Compliance with Web accessibility requirements is required to the extent that it does not result in a fundamental alteration or undue financial and administrative burdens.  Public entities have the burden of proving that compliance with Web accessibility requirements would result in such alteration or burdens.  Public entities would still need to ensure that individuals with disabilities receive the benefits or services they provide to the maximum extent possible and would need to utilize an alternative method of providing equal access to the information, service, program, or activity unless the public entity can demonstrate that alternative methods of access would result in a fundamental alteration in the nature of a service, program, or activity or undue financial and administrative burdens.

VI.  ADDITIONAL ISSUES FOR PUBLIC COMMENT 

DOJ has identified five additional issues for which they are seeking public comment: (1) measuring compliance; (2) mobile applications; (3) benefits; (4) methods of compliance; and (5) costs.

A.  Measuring Compliance [p. 28676, Question 52]

DOJ is considering what should be the appropriate measure for determining compliance with WCAG 2.0 Level AA. 

DOJ is concerned that the type of ADA compliance measures it currently uses may not be practical in the Web context. The ADA requires the facilities of public entities to be designed and constructed in such a manner that the facilities are readily accessible to and usable by individuals with disabilities. Newly designed and constructed State and local government facilities must be in full compliance with the scoping and technical specifications in the ADA Standards unless it is structurally impracticable to do so.[21]  

Because of the dynamic and interconnected nature of Web sites and the large amount of and wide variety of Web content contained on those sites, DOJ is concerned that a compliance measure similar to the one used for buildings—where State and local government facilities are to be 100-percent compliant at all times with all of the applicable provisions of the ADA Standards, subject to a few applicable compliance limitations—may not work well in the Web context.  Accordingly, DOJ is considering what should be the appropriate measure for determining compliance with WCAG 2.0 Level AA. 

B.  Mobile Applications [p. 28677, Questions 53-55]

DOJ is considering whether it should address the accessibility of mobile applications and, if so, what standard it should consider adopting.  

DOJ is soliciting public comment on whether it should address the accessibility of mobile applications (apps) because public entities seem to be increasingly using them to provide their services, programs, and activities. The agency is considering several possible standards:

• WCAG 2.0 Level AA – The U.S. Access Board has proposed applying WCAG 2.0 Level AA to mobile apps in its update to the Section 508 standards.[22] WCAG 2.0 is not intended to apply to software (including mobile apps) but, as the Access Board noted, W3C® developed WCAG 2.0 to be technology neutral and there is some support suggested for its application to other technologies, including mobile apps.[23] 
• UAAG 2.0 – A second option would be to apply the User Agent Accessibility Guidelines (UAAG) published by the W3C,®, which address the accessibility of Web browser software, mobile apps, and other software.[24] UAAG 2.0 is currently under development but the guidelines will likely be finalized before DOJ publishes a final rule. Once UAAG 2.0 is finalized, DOJ could consider the guidelines for adoption as an accessibility standard for mobile apps. Unlike WCAG, however, UAAG does not appear to have been widely accepted; however, this could be because the most recent version (UAAG 1.0) was published in 2002. 
• ATAG 2.0 – A third option for an accessibility standard to apply to mobile apps would be to apply the Authoring Tool Accessibility Guideline (ATAG 2.0), published by the W3C® in 2015.[25] ATAG 2.0 provides guidelines that address the accessibility of Web content authoring tools (i.e., the accessibility of specialized software that Web developers and designers use to produce Web content). Like the UAAG, ATAG does not appear to have been as widely accepted as WCAG. 
• ANSI/HFES 200 – A fourth option for an accessibility standard would be the American National Standards Institute/Human Factors and Ergonomics Society (ANSI/HFES) requirements.[26] ANSI/HFES 200 provides requirements to design user interfaces of software that are more usable, accessible, and consistent.  However, like the UAAG and ATAG, ANSI/HFES 200 does not appear to be as widely accepted as WCAG. 

C.  Benefits and Costs of Web Accessibility [pp. 28679]

1. Web Accessibility Benefits

DOJ believes that Web accessibility will provide significant benefits to individuals with disabilities and is seeking additional input to support this. 

Lack of accessibility prevents individuals with disabilities from taking full advantage of Web-implemented governmental programs, services, and activities. DOJ believes that Web accessibility will provide significant benefits to those with disabilities, such as the ability to access information about government services, programs, and activities quickly, easily, and independently. However, DOJ has limited information enabling it to quantify and monetize these and other benefits of Web accessibility and would like input on the following:

a. Benefits for people with disabilities, including individuals who have vision disabilities, cognitive disabilities, and disabilities that affect manual dexterity, and people who are deaf or hard of hearing [p.  28679, Questions 56-63];

b. Benefits of web usage [p. 28679, Questions 64-70];

c. Benefits of WCAG 2.0 Level AA [p. 28680, Questions 71-72]; and 

d. Benefits to other individuals and entities [p. 28680, Questions 73-75].

2. Time savings benefits [p. 28680, Questions 76-78]

DOJ is considering monetizing many of the benefits of the Web accessibility rule in terms of time savings—time saved by those current Web users with disabilities who must spend additional time performing tasks because the Web site is not accessible, as well as time saved by those individuals with disabilities who are currently accessing government services via another method but could do so more quickly via an accessible Web site. 

3. Methods of Compliance with Web Accessibility Requirements [p. 28681, Questions 79-84]

DOJ is considering proposing that public entities would have two years after the publication of the final rule to make their Web sites and Web content accessible in conformance with WCAG 2.0 Level AA. DOJ is also considering whether to allow alternative levels or compliance dates for small public entities or special districts. DOJ seeks information regarding the efforts public entities would need to undertake to comply with a Web accessibility rule. 

4. Assessing Compliance Costs [p. 28681, Questions 85-89]

DOJ is interested in public comments on the benefits and costs of a proposed rule. 

As mentioned earlier in this brief, DOJ requested public comments in 2010 on the benefits and costs of a proposed rule regarding the accessibility of State and local government Web information and services. However, the agency received very little specific feedback in response. DOJ is again seeking additional information that will enable it to more precisely quantify and monetize the economic impact of a rule requiring public entity Web sites to be accessible. The agency is asking that responses on the potential benefits and costs include as much detail as possible and be supported by specific data, information, or research where applicable. DOJ is considering three different approaches for measuring costs:

• A “per-page” methodology that multiplies the average number of pages on a Web site by an established testing, remediation, or operation and maintenance cost per page (and possibly by type of page); 
• A “level of effort” methodology, which would estimate costs based on Web site size groupings or size ‘bins’ (such as less than 100 pages, 100 to 500 pages, and so on); and  
• A combination of the per-page and level of effort methodologies.  

DOJ is seeking public comment on these potential methodologies, any alternative methodologies for estimating compliance costs, and the appropriate input values that the agency should use for testing, remediation, and operation and maintenance if it chose one of these methodologies. Commenters should include as much information as possible to support responses, including specific data or research where possible. 

5. Indirect Costs Associated with Compliance [p.  28682, Questions  90-94]

DOJ is attempting to ascertain whether there are other types of compliance costs associated with the Web accessibility rule presently under consideration, such as the cost of “down time,” systems change, regulatory familiarization costs, or administrative costs.

6. Current Levels of Accessibility for Public Entity Web Sites [p. 28683, Questions 95-97]

DOJ is considering evaluating the benefits and cost of a Web accessibility rule relative to a no-action baseline that assumes that some percentage of Web sites are already accessible and that some percentage of pages on other Web sites are accessible, and therefore either would not incur testing or remediation costs at all, or would only incur these costs for a portion of the Web site. 

7. Public Entity Resources [p. 28683; Questions 98-99]

In an attempt to evaluate the impact of the Web accessibility rule on public entities, DOJ may consider publicly reported information about the annual revenues of public entities with different population sizes. 

8. Compliance Limitations [p. 28683; Question 100]

DOJ seeks additional information about how the undue burden and fundamental alteration defenses would apply, as well as proposals for less burdensome alternatives to consider. 

9. Conventional Electronic Documents [p. 28684; Questions 101-104]

In order to assess the potential costs of making conventional electronic documents accessible, DOJ is seeking information about current usage and new documents place on public entity’s We sites annually, and whether additional compliance costs (beyond staff time) would be needed to make documents accessible after the compliance date. 

10. Captioning and Audio Description [p. 28684; Questions 105-112]

DOJ seeks specific information that will enable it to more precisely estimate the costs public entities would incur if requirements for captioning and audio description were proposed. 

11. Public Educational Institutions [p. 28685; Questions 113-115]

DOJ seeks additional information regarding the benefits and cost of Web accessibility for public educational institutions. 

12. Impact on Small Entities [p. 28685; Questions 116-123]

DOJ seeks additional specific information on the potential impact of a Web accessibility rule on small public entities. 

FOOTNOTES:

[1] All comments DOJ receives are considered part of the public record and will be made available for public inspection online at www.regulations.gov.  See the SANPRM for additional information on posting personal identifying information and confidential business information.

[2] The Rehabilitation Act of 1973 also prohibits discrimination on the basis of disability by State and local governments, and Title II extends that prohibition to all activities of State and local governments regardless of whether or not they receive Federal financial assistance. 

[3] Codified in the Code of Federal Regulations at 28 CFR Part 35.

[4] The 2004 ANPRM and 2008 NPRM also covered Title III (public accommodations) of the ADA but for purposes of this brief we are confining our discussion to Title II.

[5] See Department of Justice , Fall 2015 Statement of Regulatory Priorities.

[6] 28 CFR Part 35, App. A, 675–676 (2015).

[7] See H.R. Rep. No. 101–485(II), 101st Cong., 2d Sess. 108 (1990). 

[8] 28 CFR Part 36, app. B. 

[9] See 28 CFR §35.102

[10] For example, in April 2013 the U.S. Department of Labor cited the Florida Department of Economic Opportunity Office of Unemployment Compensation for violating Title II of the ADA and other federal laws for requiring unemployment compensation applicants to file claims online and complete an online skills assessment even though the State’s Web site was inaccessible.  In re Miami Workers Ctr., CRC Complaint No. 12-FL-048 (Dep’t Labor 2013) (initial determination), available at http://nelp.3cdn.net/2c0ce3c2929a0ee4e1_wim6i5ynx.pdf (last visited Apr. 13, 2016).

[11] See Web Content Accessibility Guidelines 2.0 (Dec. 2008), http://www.w3.org/TR/WCAG/#glossary  (last visited Apr. 13, 2016). 

[12]  Currently W3C^® does not recommend requiring Level AAA conformance as a general policy for entire Web sites, as it is not possible to satisfy all Level AAA criteria for some content. See Understanding Requirement 1, Understanding WCAG 2.0: A Guide to Understanding and Implementing WCAG 2.0 (last revised Jan. 2012), available at http://www.w3.org/TR/UNDERSTANDING-WCAG20/conformance.html#uc-conformance-requirements-head (last visited Apr. 13, 2016).

[13] Federal agency Web sites, governed by the Rehabilitation Act’s Section 508 standards, may also need to comply with WCAG 2.0 in the near future.  The U.S. Access Board has proposed updating and revising the Section 508 standards by adopting the WCAG 2.0 Level AA conformance requirements. See 80 FR 10880 (Feb. 27, 2015); 76 FR 76640 (Dec. 8, 2011); 75 FR 13457 (Mar. 22, 2010).

[14] This means compliance with the Level A and Level AA Success Criteria and Conformance Requirements specified in 2008 WCAG 2.0, except for Success Criterion 1.2.4 on live-audio content in synchronized media.

[15] Under WCAG 2.0 Level AA Success Criterion 1.2.4.

[16] See Captions (Live), Understanding WCAG 2.0: A Guide to Understanding and Implementing WCAG 2.0 (last revised Jan. 2012), available at http://www.w3.org/TR/UNDERSTANDING-WCAG20/media-equiv-real-time-captions.html (last visited Apr. 13, 2016).

[17] Small public entities are defined as governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000. See Regulatory Flexibility Act of 1980, 5 U.S.C. 601(5). 

[18] Special district government is defined as a public entity (other than a county, municipality, township, or independent school district) (1) authorized to provide one function or a limited number of designated functions with sufficient administrative and fiscal autonomy to qualify as a separate government and (2) with a population that is not calculated by the U.S. Census Bureau in the most recent decennial Census or Small Area Income and Poverty Estimates.

[19] See W3C®, Understanding WCAG 2.0: Understanding Conforming Alternate Versions (Dec. 2012). 

[20] 28 CFR §35.130(b)(7) (reasonable modifications in policies, practices, or procedures), §35.150(a)(3) (program accessibility), and §35.164 (effective communication)

[21] 28 CFR §35.151(a).  When making an alteration to a facility that affects or could affect usability, public entities are required to make those alterations accessible to the maximum extent feasible.  28 CFR §35.151(b).

[22] See 80 FR 10880 (Feb. 27, 2015). 

[23] See 80 FR 10880, 10895 (Feb. 27, 2015). 

[24] See User Agent Accessibility Guidelines (UAAG) 2.0, W3C^® Working Group Note, (Dec. 15, 2015), available at http://www.w3.org/TR/UAAG20/ (last visited Apr. 13, 2016). 

[25] See Authoring Tool Accessibility Guidelines (ATAG) 2.0, (Sep. 24, 2015), available at http://www.w3.org/TR/ATAG20/ (last visited Apr. 13, 2016). 

[26] See ANSI/HFES 200 Human Factors Engineering of Software User Interfaces, Human Factors and Ergonomics Society (2008), available at http://www.hfes.org/Publications/ProductDetail.aspx?ProductID=76 (last visited Apr. 13, 2016). 

APPENDIX—DOJ QUESTIONS

SUPPLEMENTAL ADVANCE NOTICE OF PROPOSED RULEMAKING

CRT Docket No. 128

RIN 1190-AA65

Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities

The Meaning of "Web Content"

Question 1: Although the definition of “Web content” that the Department is considering proposing is based on the “Web Content” definition in WCAG 2.0, it is a less technical definition.  Is the Department’s definition under consideration in harmony with and does it capture accurately all that is contained in WCAG 2.0’s “Web content” definition? 

Access Requirements to Apply to Web Sites and Web Content of Public Entities

Question 2: Are there other issues or concerns that the Department should consider regarding the accessibility standard—WCAG 2.0 Level A and Level AA Success Criteria and Conformance Requirements—the Department is considering applying to Web sites and Web content of public entities?  Please provide as much detail as possible in your response.

Timeframe for Compliance

Question 3: Does an effective date of two years after the publication of a final rule strike an appropriate balance of stakeholder interests? Why or why not?  Should the Department consider a shorter or longer effective date?  If so, what should those timeframes be and why? Please provide support for your view.  Should the Department consider different approaches for phasing in compliance?  For example, should the Department consider permitting public entities to make certain Web pages (e.g., most frequently used or necessary to participate in the public entity’s service, program, or activity) compliant by an initial deadline, and other Web pages compliant by a later deadline?  If so, how should the Department define the Web pages that would be made accessible first, and what timeframes should the Department consider?  Please provide support for your view.

Question 4: Some 2010 ANPRM commenters expressed concern that there is likely to be a shortage of professionals who are proficient in Web accessibility to assist covered entities in bringing their Web sites into compliance.  Please provide any data that the Department should consider that supports your view.

Captions for Live-Audio Content in Synchronized Media

Question 5: Is there technology available now that would allow public entities to efficiently and effectively provide captioning of live-audio content in synchronized media in compliance with WCAG 2.0 Level AA conformance?  If so, what is the technology and how much does it cost?  If public entities currently provide captioning for live-audio content, what method, process, or technology do they use to provide the captions?  If such technology is not currently available, when is it likely to become available?

Question 6: What are the availability and the cost of hiring and using trained professionals who could provide captions for live-audio content in synchronized media?  What are the additional costs associated with producing captions for live-audio content in synchronized media, such as the technological components to ensuring that the captions are visible on the Web site and are synchronized with the live-audio content? 

Question 7: Should the Department consider a shorter or longer effective date for the captioning of live-audio content in synchronized media requirement, or defer this requirement until effective and efficient technology is available?  Please provide detailed data and information for the Department to consider in your response.           

Equivalent Facilitation

Question 8: Are there any existing designs, products, or technologies (whether individually or in combination with others) that would result in accessibility and usability that is either substantially equivalent to or greater than WCAG 2.0 Level AA? 

Question 9: Are there any issues or concerns that the Department should consider in determining how a covered entity would demonstrate equivalent facilitation?

Alternative Requirements

Small Public Entities

Question 10: Would the Department be correct to adopt the RFA’s definition for a “small governmental jurisdiction” (i.e., governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000) as its population threshold for small public entities? Are there other definitions for “small governmental jurisdiction” the Department should consider using to define the population threshold for small public entities for purposes of this rulemaking?  Please provide as much information as possible, including any supporting data for your views.

Question 11: Are there technical and resource challenges that smaller entities might face in meeting Level AA conformance?  At what level are small public entities currently providing accessibility on their Web sites?  Do small public entities have internal staff to modify their Web sites, or do they utilize outside consulting staff to modify and maintain their Web sites?  Are small public entities facing budget constraints that may impair their ability to comply with this regulation? 

Question 12: Are there other issues or considerations regarding the accessibility standard—WCAG 2.0 Level A Success Criteria and Conformance Requirements— that the Department is considering applying to Web sites and Web content of very small public entities that the Department should consider?  Please provide as much detail as possible in your response.

Question 13: If the Department were to apply a lower compliance standard to very small public entities (WCAG 2.0 Level A), what would be the appropriate population threshold or other appropriate criteria for defining that category? Should the Department consider factors other than population size, such as annual budget, when establishing different or tiered compliance requirements?  If so, what should those factors be, why are they more appropriate than population size, and how should they be used to determine regulatory requirements?  What would be the consequences for individuals with disabilities if the Department applied a lower compliance standard, WCAG 2.0 Level A, to very small public entities?

Question 14: Would applying to very small public entities an effective date of three years after the publication of the final rule strike an appropriate balance of stakeholder interests?  Why or why not?  Should the Department consider a shorter or longer effective date for very small public entities?  Please provide specific examples or data in support of your response.

Question 15: Should the Department defer compliance with WCAG 2.0 altogether for a subset of very small public entities?  Why or why not?  If so, what would be the appropriate population threshold or other appropriate criteria for defining that subset of very small public entities?  Should the Department consider factors other than population size, such as annual budget, when establishing the subset of public entities subject to deferral?  If so, what should those factors be, why are they more appropriate than population size, and how should they be used to determine regulatory requirements? What would be the consequences to individuals with disabilities if the Department deferred compliance with WCAG 2.0 for a subset of very small public entities?

Question 16: If the Department were not to apply a lower compliance standard to very small public entities (WCAG 2.0 Level A), should the Department consider a deferral of the requirement to provide captioning of live-audio content in synchronized media for very small public entities? Additionally, should the Department consider a deferral of the requirement to provide captioning of live-audio content in synchronized media for all small public entities? Why or why not? 

Special Districts

Question 17: Are there technical and resource challenges that special districts might face in meeting Level AA conformance?  At what level are special districts currently providing accessibility on their Web sites?  Do special districts have internal staff to modify their Web sites, or do they utilize outside consulting staff to modify and maintain their Web sites?  Are special districts facing budget constraints that may impair their ability to comply with a proposed regulation requiring compliance with Level AA? 

Question 18: Are there other issues or considerations regarding the accessibility standard—WCAG 2.0 Level A Success Criteria and Conformance Requirements— that the Department is considering applying to Web sites and Web content of special district governments that the Department should consider?  Please provide as much detail as possible in your response.

Question 19: Does the description of special district governments above make clear which public entities are captured by that category?  Is there any additional information on calculating the populations of special district governments that the Department should consider?

Exceptions to the Web Access Requirements

Archived Web Content

Question 20: Is the definition the Department is considering for archived Web content appropriate?

Question 21: Does the archived Web content definition and exception under consideration take into account how public entities manage outdated content on their Web sites?  How often do individuals seek access to such documents and how long would it take public entities to provide these documents in an accessible format?  Are there other issues that the Department should consider in formulating an archived Web content definition or an exception for archived materials on Web sites of public entities?

Preexisting Conventional Electronic Documents

Question 22: Would such a definition and exception under consideration make clear the types of documents needed to apply for or gain access to services, programs, or activities?  If some versions of documents are accessible and others are not, should the Department require that accessible documents be labeled as such?  Are there other issues that the Department should take into consideration with regard to a proposed exception for conventional electronic documents?

Third-Party Web Content

Linked Third-Party Web Content

Question 23: Are there additional issues that the Department should take into consideration with regard to linked third-party Web content?  Has the Department made clear which linked third-party Web content it is considering covering and which linked third-party Web content the Department is considering excepting from coverage under a proposed rule? Why or why not?

Web Content Posted by a Third Party

Question 24: The Department intends the phrase “content posted by a third party on a public entity’s Web site” to mean content that a third party creates and elects to make available on the public entity’s Web site.  Does the Department’s use of the term “posted” in this context create confusion, and if so, is there another term that would be more appropriate for purposes of this exception?       

Question 25: The Department requests public comment on whether the Department’s rule should except from coverage almost all Web content posted by third parties on public entities’ Web sites.  The Department is also interested in obtaining information about what type of Web content is posted by third parties on Web sites of public entities (e.g., whether it contains only text, or includes images, videos, audio content, and other forms of media)? 

Question 26: How much content is posted by third parties on public entities’ Web sites and how frequently?  Please provide as much information as possible, including any supporting data.

Question 27: To what extent are public entities on notice of postings by third parties on their Web sites?  To what extent do public entities affirmatively decide what, or how much, third-party Web content can be posted on their Web sites?  If public entities do affirmatively decide what, or how much, third-party Web content to post on their Web sites, please describe how that process works and what factors public entities consider when making such decisions?

Question 28: What Web content posted by third parties do you consider essential to access in order to engage in civic participation?  Is “essential for engaging in civic participation” the appropriate standard for determining whether Web content posted by third parties needs to be made accessible to individuals with disabilities?  Please provide as much information as possible, including any supporting material for your views.

Question 29: What factors should the Department consider when framing the obligation for public entities to make accessible the Web content posted by third parties that is essential for engaging in civic participation?  Please provide as much information as possible, including any supporting data.

Question 30: Is there other third-party Web content that, while not essential for engaging in civic participation, the public entity controls and should not be included within such an exception?  How would the Department define that control?  How would the Department measure and evaluate that control?  Why, in your view, should that third-party Web content be excluded from any such exception?  Please provide as much information as possible, including any supporting data.

Question 31: If the Department adopts an exception along the lines currently under consideration, will it prevent constituents with disabilities from accessing important information on public entities’ Web sites concerning public entities’ services, programs, or activities?  Please provide as much information as possible, including any supporting data for your views.

Question 32: Are there other issues that the Department should take into consideration with regard to the exception under consideration?

Third-Party Filings in Judicial and Quasi-Judicial Administrative Proceedings

Question 33: On average, how many third-party submissions in judicial proceedings or quasi-judicial administrative proceedings does a public entity receive each week or each month?  How much staff do public entities have available with the expertise to make such documents accessible?  How many staff hours would need to be devoted to making such documents accessible?  Please provide as much information as possible, including any supporting data.  Has the Department made clear that if an exception were to provide that this content would not need to be made accessible on a public entity’s Web site, public entities would continue to have obligations under the current title II requirements to make individual documents accessible to an individual with a disability on a case-by-case basis?  If not, why not?

Question 34: The Department is also interested in obtaining information about what types of third-party Web content in judicial and quasi-judicial administrative proceedings are posted on public entities’ Web sites (e.g., how much of it is text, how much contains images, videos, audio content, or other forms of media)?  Please provide as much information as possible, including any supporting data.

Question 35: If the Department adopts an exception along the lines currently under consideration, will it prevent citizens with disabilities from accessing important information concerning public entities’ services, programs, or activities on public entities’ Web sites?  Please provide as much information as possible, including any supporting data for your views.

Question 36: Are there other issues or other factors that the Department should take into consideration with regard to this proposal regarding third-party filings in judicial and quasi-judicial administrative proceedings?

Third-Party Social Media Platforms

Question 37: Are there any social media platforms that are covered by title II of the ADA that the Department should be aware of? Please provide as much information as possible in your response.

Question 38: Please provide any other information or issues that the Department should consider with regard to a proposal to defer applying a technical standard to public entities’ use of social media Web sites.

Password-Protected Web Content of Public Educational Institutions

Question 39: Does the Department’s exception, as contemplated, take into account how public educational institutions use password-protected Web content?  What kinds of tasks are students with disabilities or parents with disabilities performing on public educational institutions’ Web sites?

Question 40: How do public educational institutions communicate general information to their student bodies and how do they communicate class- or course-specific information to their students via Web sites?

Question 41: On average, how much and what type of content do password-protected course Web sites contain?  How much time does it take a public entity to make the content on a password-protected course Web site accessible?  Once a public educational institution is on notice that a student is enrolled in a class or course, how much time should a public educational institution be given to make the content on a password-protected course Web site accessible?  How much delay in accessing course content can a student reasonably overcome in order to have an equal opportunity to succeed in a course?

Question 42: Do public elementary or secondary schools combine and make available content for all students in a particular grade or particular classes (e.g., all ninth graders in a school or all secondary students taking chemistry in the same semester) using a single password-protected Web site?

Question 43: Is the Department’s proposed terminology to explain who it considers to be a parent in the educational context clear?  If not, why not?  If alternate terminology is appropriate, please provide that terminology and data to support your position that an alternate term should be used.

Question 44: Should the Department require that password-protected Web content be accessible to parents with disabilities who have a postsecondary student enrolled in a particular class or course?

Question 45: How and when do public postsecondary educational institutions receive notice that a student who, because of a disability, would be unable to access content on an inaccessible Web site is newly enrolled in a school, class, or course? 

Question 46: When are public elementary and secondary students generally assigned or enrolled in classes or courses?  For all but new students to a public elementary or secondary school, does such enrollment generally occur in the previous semester? If not, when do such enrollments and assignments generally occur?

Question 47: Are there other factors the Department should consider with regard to password-protected Web content of public educational institutions?  Please provide as much detail as possible in your response.

Conforming Alternate Versions

Technical or Legal Limitations

Providing Access to Conventional Electronic Documents

Question 48: Has the Department made clear the two circumstances under which conforming alternate versions of Web pages or Web content would be permissible?  Please provide as much detail as possible in your response.

Question 49: Are there other instances where the Department should consider permitting the use of conforming alternate versions of Web pages or Web content?  Please provide as much detail as possible in your response.

Question 50: Are there any issues or considerations the Department should take into account regarding its proposal to permit the use of conforming alternate versions of Web pages or Web content only where it is not possible to make Web pages and Web content directly accessible to persons with disabilities due to technical or legal limitations?  Are there any additional issues or information regarding conforming alternate versions of a Web page or Web content that the Department should consider?  Please provide as much detail as possible in your response.

Question 51: Should the Department consider permitting the use of conforming alternate versions to provide access to conventional electronic documents when multiple versions of the document exist?  If so, why?  Are there considerations or concerns regarding whether allowing conforming alternate versions in these specific instances would subject individuals with disabilities to different or inferior services?  Please provide as much detail as possible in your response.

Compliance Limitations and Other Duties

Additional Issues for Public Comment

Measuring Compliance

Question 52: The Department 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 Department consider adopting percentages of Web content that need to be accessible or other similar means of measuring compliance?  Is there a minimum threshold that is an acceptable level of noncompliance for purposes of complaint filing or enforcement action?  Are there circumstances where Web accessibility errors may not be significant barriers to accessing the information or functions of the Web site?  Please provide as much detail as possible in your response.

Mobile Applications

Question 53: Should the Department consider adopting accessibility requirements for mobile software applications to ensure that services, programs, and activities offered by public entities via mobile apps are accessible?  Please provide any information or issues the Department should consider regarding accessibility requirements for mobile apps provided by public entities.

Question 54: The Department is seeking public comment regarding the use of WCAG 2.0, UAAG 2.0, ATAG 2.0, or ANSI/HFES 200 as accessibility requirements for mobile apps.  Are there any issues the Department should consider in applying WCAG 2.0, UAAG 2.0, ATAG 2.0, or ANSI/HFES 200 as accessibility requirements for mobile apps?  Is there a difference in compliance burdens and costs between the standards?  Please provide as much detail as possible in your response.

Question 55: Are there any other accessibility standards or effective and feasible alternatives to making the mobile apps of public entities accessible that the Department should consider?  If so, please provide as much detail as possible about these alternatives, including information regarding their costs and effectiveness, in your response. 

Benefits and Costs of Web Access Regulations

Web Accessibility Benefits

Benefits for People with Disabilities

Question 56: How should the monetary value of the benefits of Web accessibility to persons with disabilities be measured?  What methodology should the Department use to calculate the monetary value of these benefits?  Please provide any available data or research regarding the benefits of Web accessibility and the monetary value of these benefits.

Question 57: Are there particular benefits of Web accessibility for persons with disabilities that are difficult to quantify (e.g., increased independence, autonomy, flexibility, access to information, civic engagement, educational attainment, or employment opportunities)?  Please describe these benefits and provide any information or data that could assist the Department in estimating their monetary value.

Question 58: People with vision disabilities: What data should the Department use for estimating the number of people with vision disabilities who would benefit from a Web access regulation (e.g., the Survey of Income and Program Participation, available at http://www.census.gov/prod/2012pubs/p70-131.pdf, or the American Community Survey, available at http://www.disabilitystatistics.org/reports/acs.cfm?statistic=1)?  How does Web accessibility benefit people with vision disabilities?  Please provide any information that can assist the Department in quantifying these benefits.

Question 59: People who are deaf or hard of hearing: What data should the Department use for estimating the number of people with hearing disabilities who would benefit from a Web access regulation (e.g., the Survey of Income and Program Participation, available at http://www.census.gov/prod/2012pubs/p70-131.pdf, or the American Community Survey, available at http://www.disabilitystatistics.org/reports/acs.cfm?statistic=1)?  How does Web accessibility benefit people who are deaf or hard of hearing?  Is there any data or studies available that examine how often people seek and use sound when visiting public entity (or other) Web sites?  Please provide any information that can assist the Department in quantifying these benefits.

Question 60: People who have disabilities that impair manual dexterity: What data should the Department use for estimating the number of people with manual dexterity disabilities who would benefit from a Web access regulation (e.g., the Survey of Income and Program Participation, available at http://www.census.gov/prod/2012pubs/p70-131.pdf, or the American Community Survey, available at http://www.disabilitystatistics.org/reports/acs.cfm?statistic=1)?   How does Web accessibility benefit people who have disabilities that impair manual dexterity?  Please provide any information that can assist the Department in quantifying these benefits.

Question 61: People with cognitive disabilities: What data should the Department use for estimating the number of people with cognitive disabilities who would benefit from a Web access regulation (e.g., the Survey of Income and Program Participation, available at http://www.census.gov/prod/2012pubs/p70-131.pdf, or the American Community Survey, available at http://www.disabilitystatistics.org/reports/acs.cfm?statistic=1)?  How does Web accessibility benefit people with cognitive disabilities?  Clinical diagnoses of cognitive disabilities can sometimes include a wide spectrum of disabilities including learning disabilities, developmental disabilities, neurological disabilities, and intellectual disabilities.  Please provide any information that can assist the Department in quantifying these benefits.  For purposes of quantifying the benefits of a Web accessibility rule, should the benefits to individuals with cognitive disabilities be treated as one category, or calculated for several separate categories (e.g., learning disabilities, developmental disabilities, neurological disabilities, intellectual disabilities)?  If you suggest analyzing different types of cognitive disabilities separately, please explain how the benefits for these groups would differ (e.g., would someone with dyslexia benefit from Web accessibility in ways that someone with a traumatic brain injury would not, and if so, how?) and provide any information that can assist the Department in quantifying benefits for these groups.

Question 62: The Survey of Income and Program Participation classifies people with difficulty seeing, hearing, and grasping into “severe” and “nonsevere” categories, and defines each category.  Should the Department’s regulatory impact analysis consider differences in disability severity when estimating benefits? Why or why not?  If disability severity should be taken into account, are there available studies or data that address time savings for people with different severities of disabilities?  If there are no available data or studies addressing this issue, how should estimates of time savings appropriately account for differences in disability severity, if at all?

Question 63: Are there any other disability groups not mentioned above that would benefit from Web accessibility?  If so, how would they benefit, and how can these benefits be assigned a monetary value?

Benefits of Web Usage

Question 64: What data is available about usage of public entities’ Web sites by the general population and by persons with disabilities?  For example, what percentage of the population with disabilities and without disabilities accesses public entities’ Web sites, and how often do they do so? If barriers to Web site accessibility were removed, would individuals with disabilities use the Internet at the same rate as the general population?  Why or why not?

Question 65: To what extent do persons with disabilities choose not to use public entities’ Web sites due to accessibility barriers, but obtain information or access services available on these Web sites in another way?  Does this vary between disability groups?  If so, how and why does it vary?

Question 66: What are the most common reasons for using public entities’ Web sites (e.g., to gather information; apply for the public entity’s services, programs, or activities; communicate with officials; request services; make payments)?

Question 67: If a person with a disability is using a public entity’s Web site and encounters content that is inaccessible, what do they do (e.g., spend longer trying to complete the task online themselves, ask someone they know for assistance, call the entity, visit the entity in person, abandon the attempt to access the information)?

Question 68: How often are persons with disabilities entirely prevented, due to accessibility barriers, from obtaining access to information or services available on public entities’ Web sites, including through alternate means (i.e., how often do persons with disabilities never receive information in any form because it is not available on an accessible Web site)?  Are there certain services, programs, or activities that public entities only provide online?  How would the Department quantify or monetize the information and services not received by people with disabilities because public entities’ Web sites are inaccessible?

Question 69: Would more people with disabilities become employed, remain employed, be more productive employees, or get promoted if public entities’ Web sites were accessible?  If so, what impact would any proposed rule have on the employment rate, productivity, or earnings of people with disabilities?  How would the Department quantify or monetize these benefits?  Are there other employment-related benefits of Web accessibility for people with disabilities that the Department should consider?

Question 70: Are the educational opportunities available to people with disabilities limited because public entities’ Web sites are inaccessible?  For example, are the high school or college graduation rates of people with disabilities reduced because public educational institutions’ Web sites are inaccessible?  Would more people with disabilities graduate high school or college if public educational institutions’ Web sites were accessible?  If so, what impact would any proposed rule have on the graduation rate of people with disabilities?  How would the Department quantify or monetize the value of this increased graduation rate?  For example, are there financial benefits that accrue throughout an individual’s life as a result of high school or college graduation, and how should these benefits be calculated?  Are there other educational benefits of Web accessibility for people with disabilities that the Department should consider?

Benefits of WCAG 2.0 Level AA

Question 71: Are there specific provisions of WCAG 2.0 Level AA that are particularly beneficial for individuals with certain types of disabilities (e.g., the requirement for captioning live-audio content in synchronized media provides certain important benefits to individuals with hearing disabilities and auditory processing disorders)? Which provisions provide the most benefits, to whom, and why?

Question 72: Are there specific provisions of WCAG 2.0 Level AA that are difficult or costly to implement? Are there specific provisions of WCAG 2.0 Level AA for which the costs outweigh the accessibility benefits?

Benefits to Other Individuals and Entities

Question 73: How would the Department quantify or monetize the resources expended by public entities to assist persons with disabilities by phone or in person?  For example, would public entities experience reduced staffing costs due to Web accessibility requirements because fewer staff will be needed to respond to calls or in-person visits from persons with disabilities who will be able to access information via an accessible Web site?  How should any reduction in staffing costs be calculated?

Question 74: Are there any additional groups that would benefit from Web accessibility (e.g., individuals without disabilities, senior citizens, caregivers and family members of persons with disabilities)?  Please explain how these groups would benefit (e.g., improved navigation enables everyone to find information on Web sites more efficiently, caregivers are able to perform other tasks because the individual with a disability for whom they provide care will need less assistance) and provide any information or data that could assist the Department in quantifying these benefits.

Question 75: Would users without disabilities who currently access a public entity’s services via an inaccessible Web site save time if the Web site became accessible (for example, because it is easier to find information on the site once the navigation is clearer)?  If so, how much time would they save?  Please provide any available data or research to support your responses on the time savings for individuals without disabilities from using accessible Web sites instead of inaccessible Web sites.

Time Savings Benefits

Question 76: Should the Department evaluate benefits of a Web accessibility rule by considering time savings?  Other than those discussed above, are there other studies that can be used to estimate time savings from accessible public entity Web sites?  Please provide comments on the appropriate method for using time savings to calculate benefits?

Question 77: Would users with disabilities who currently access a public entity’s services by phone or in person save time if they were able to access the public entity’s services via an accessible Web site?  If so, how much time would they save?  Should this time savings be calculated on an annual basis or for a certain number of interactions with the public entity?  Please provide any available data or research on time savings from using accessible online services instead of offline methods.

Question 78: Would users with disabilities who currently access a public entity’s services via an inaccessible Web site save time if the Web site became accessible?  If so, how much time would they save?  Would this time savings be limited to users with vision disabilities?  If not, is there a difference in the time savings based on type of disability?  How would the time savings vary between disability groups (e.g., will individuals with vision disabilities save more time than individuals with manual dexterity disabilities)?  Please provide any available data or research to support your responses on time savings for individuals with vision disabilities and other types of disabilities (e.g., hearing disabilities, manual dexterity disabilities, cognitive disabilities, etc.) from using accessible Web sites instead of inaccessible Web sites. 

Methods of Compliance with Web Accessibility Requirements

Question 79: How do public entities currently design and maintain their Web sites?  Do they use in-house staff or outside contractors, service providers, or consultants?  Do they use templates for Web site design, and if so, would these templates comply with a Web accessibility rule?  Is there technology, such as templates or software, that could assist public entities in complying with a Web accessibility rule?  Please describe this technology and provide information about how much it costs.  What are the current costs of Web site design and maintenance?  Does the method or cost of Web site design and maintenance vary significantly by size or type of entity?

Question 80: How are public entities likely to comply with any rule the Department issues regarding Web accessibility?  Would public entities be more likely to use in-house staff or hire an outside information technology consultant?  Would training be required for in-house staff, and if so, what are the costs of any anticipated training?  Would the likelihood of using outside contractors and consultants vary significantly by size or type of entity?  Would increased demand for outside experts lead to a temporary increase in the costs incurred to hire information technology professionals?  If so, how much of an increase, and for how long?  Aside from the cost of labor, what are the additional costs, if any, related to the procurement process for hiring an outside consultant or firm to test and remediate a Web site?

Question 81: Are public entities likely to remediate their existing Web site or create a new Web site that complies with the proposed Web accessibility requirements?  Does this decision vary significantly by size or type of entity? What are the cost differences between building a new accessible Web site with accessibility incorporated during its creation and remediating an existing Web site?  Do those cost differences vary significantly by size or type of entity?  Would public entities comply with a Web accessibility rule in other ways?

Question 82: If public entities choose to remediate their existing Web content, is there a cost threshold for the expected costs of accessibility testing and remediation above which it becomes more cost effective or otherwise more beneficial for an entity to build a new Web site instead of remediating an existing one?  If so, what is that cost threshold?  How likely are entities of various types and sizes to cross this threshold?

Question 83: Would public entities choose to remove existing Web content or refrain from posting new Web content instead of remediating the content to comply with a Web accessibility rule?  How would public entities decide whether to remove or refrain from posting Web content instead of remediating the content?  Are public entities more likely to remove or refrain from posting certain types of content?  Is there a cost threshold above which entities are likely to remove or refrain from posting Web content instead of remediating the content? If so, what is that cost threshold?  

Question 84: In the absence of a Web accessibility rule, how often do public entities redesign their Web sites?  Do they usually redesign their entire Web site or just sections (e.g., the most frequently used sections, sections of the Web site that are more interactive)? What are the benefits of Web site redesign? What are the costs to redesign a Web site?  If a Web site is redesigned with accessibility incorporated, how much of the costs of the redesign are due to incorporating accessibility?

Assessing Compliance Costs

Question 85: Should the Department estimate testing, remediation, and operation and maintenance costs on a cost-per-page basis?  If so, how should the average cost per page be determined for testing, remediation, and operation and maintenance?  How should these costs be calculated?  Should different per-page estimates be used for entities of different sizes or types, and if so how would they vary? Should different per-page cost estimates be used for different types of page content (text, images, live or prerecorded synchronized media) or for static and dynamic content?  If you propose using different per-page cost estimates for different types of content, what are the appropriate types of content that should be used to estimate costs (e.g., text, images, synchronized media (live or prerecorded), forms, static content, dynamic content), how much content should be allocated to each category, and what are the appropriate time and cost estimates for remediation of each category?

Question 86: If the Department were to use a cost-per-page methodology, how would the average number of pages per Web site be determined?  Should the Department seek to estimate Web site size by sampling a set number of public entities and estimating the number of pages on those Web sites?  When presenting costs for different categories of Web sites by size, how should Web sites be categorized (i.e., what should be considered a small, medium, or large Web site)?  Should Web site size be discussed in terms of the number of pages, or is there a different metric that should be used to discuss size?

Question 87: If a level of effort methodology is used, what are the appropriate Web site size categories that should be used to estimate costs and what are the different categories of Web elements for which remediation time should be estimated (e.g., informative, interactive, transactional, multimedia)?  What are appropriate time estimates for remediation for each category of Web elements?  What wage rates should be used to monetize the time (e.g., government staff, private contractor, other)?

Question 88: Do the testing, remediation, and operation and maintenance costs vary depending on whether compliance with WCAG 2.0 Level A or Level AA is required, and if so, how?

Question 89: What other methods could the Department use to estimate the costs to public entities of compliance?  Which methodology would allow the Department to estimate most accurately the entities’ costs for making their Web sites accessible?

Indirect Costs Associated with Compliance

Question 90: If public entities remediate their Web sites to comply with a Web accessibility rule, would they do so in such a way that accessible Web pages are created and tested before the original Web pages are removed, such that there is no “down time” during the upgrade?  If not, how much “down time” would occur, and what are the associated costs?

Question 91: Would public entities incur additional costs related to modifying their current methods for processing online transactions if those are inaccessible due to applications or software currently used?  If so, what are these costs, and how many public entities would incur them?

Question 92: Would there be additional indirect administrative costs associated with compliance with a Web accessibility rule, and if so, what are these costs?

Question 93: Would there be any costs related to familiarization with the new regulations, and if so, what are these costs?  How much time would be needed for regulatory familiarization, and how much would this cost?

Question 94: Are there other considerations the Department should take into account when evaluating the time and cost required for compliance with a Web accessibility rule, and if so, what are these costs?

Current Levels of Accessibility for Public Entity Web Sites

Question 95: Which public entities have statutes and/or policies that require or encourage their Web sites to be accessible to persons with disabilities and/or to conform to accessibility requirements under section 508, WCAG 1.0, and/or WCAG 2.0?  Do these laws and/or policies require (not just suggest) conformance with a particular Web accessibility standard, and if so, which one?  Are these laws and/or policies being implemented, and, if so, are they being implemented at just the State level of government or at the local levels as well?  The Department asks that the public provide additional information on current State or local policies on Web accessibility, including links or copies of requirements or policies, when possible.

Question 96: What percentage of public entities’ Web sites and Web pages are already compliant with Web accessibility standards, or have plans to become compliant even in the absence of a Web accessibility rule?  What would be a reasonable “no-action” baseline accessibility assumption (i.e., what percentage of Web sites and Web pages should the Department assume are already compliant with Web accessibility standards or will be even in the absence of a rule)?  Should this assumption be different for different sizes or types of public entities (e.g., should a different percentage be used for small public entities)?  Please provide as much information as possible to support your response, including specific data or research where possible.

Question 97: If State or local entities already comply with WCAG 2.0, what were the costs associated with compliance?  Please provide as much information as possible to support your response, including specific data where possible.

Public Entity Resources

Question 98: Is the Department correct to evaluate the resources of public entities by examining their annual revenue? Is annual revenue an effective measure of the potential burdens a Web accessibility rule could impose on public entities? Is there other publicly available data that the Department should consider in addition to, or instead of, annual revenue when considering the burdens on public entities to comply with a Web accessibility rule?

Question 99: Are there resources that a public entity would need to comply with a Web accessibility rule that they would not be able to purchase (e.g., staff or contractors with expertise that are not available in the geographic area)? Are there other constraints on public entities’ ability to comply with a Web accessibility rule that the Department should consider?

Compliance Limitations

Question 100: Are there any other effective and reasonably feasible alternatives to making the Web sites of public entities accessible that the Department should consider?  If so, please provide as much detail as possible about these alternatives in your answer, including information regarding their costs and effectiveness.

Conventional Electronic Documents

Question 101: How many conventional electronic documents currently exist on public entities’ Web sites?  What is the purpose of these conventional electronic documents (e.g., educational, informational, news, entertainment)?  What percentage of these documents, on average, is used to apply for, gain access to, or participate in the public entity’s services, programs, or activities?

Question 102: How many new conventional electronic documents are added to public entities’ Web sites, on average, each year and how many, on average, are updated each year? Will the number of documents added or updated each year change over time?

Question 103: What are the costs associated with remediating existing conventional electronic documents?  How should these costs be calculated?  Do these costs vary by document type, and if so, how?  Would these costs vary if compliance with WCAG 2.0 Level A was required instead of compliance with WCAG 2.0 Level AA, and if so, how?

Question 104: What costs do public entities anticipate incurring to ensure that the conventional electronic documents placed on their Web sites after the compliance date of any Web accessibility rule are accessible (e.g., will they be created with accessibility built in, or will they need to be remediated)?  Would public entities use any specific type of software to ensure accessibility?  What is the cost of this software, including the costs of any licenses?  What kind of training about accessible conventional electronic documents would be needed, if any, and what would the training cost?  How many hours per year would it take public entities to ensure that the conventional electronic documents posted on their Web sites are accessible after the compliance date of any Web accessibility rule? 

Captioning and Audio Description

Question 105: How much synchronized media (live or prerecorded) is available on public entities’ Web sites?  How much of this synchronized media is live (i.e., streaming) and how much is prerecorded?  What is the running time of such media?  What portion of the media contains speech, and how much speech does it contain?  What is the purpose of the synchronized media (e.g., educational, informational, civic participation, news, entertainment)?

Question 106: How often do individuals with vision or hearing disabilities attempt to access synchronized media on public entities’ Web sites?  How much of the synchronized media that individuals with vision or hearing disabilities attempt to access is live and how much is prerecorded?  What is the purpose of attempting to access this synchronized media (e.g., educational, informational, civic participation, news, entertainment)?   What percentage of the synchronized media is not captioned or audio described, and what portion of the media that is not captioned or audio described is live versus prerecorded?

Question 107: What do individuals with vision or hearing disabilities do when synchronized media is not captioned or audio described?  Do they spend additional time seeking the information or content in other ways (e.g., do they need to make a phone call and remain on hold)?  If so, how much additional time do they spend trying to obtain it?  How do they actually obtain this information or content?  How much additional time, other than the individual’s own time spent seeking the information, does it take to obtain the information or content (e.g., does it take several days after their request for the information to arrive in the mail)?

Question 108: To what extent do persons with vision or hearing disabilities refrain from using public entities’ Web sites due to a lack of captioning or audio description?  Would persons with vision or hearing disabilities use public entities’ Web sites more frequently if content were captioned or audio described?  To what extent does the lack of captioning or audio description make using public entities’ Web sites more difficult and/or time consuming?

Question 109: Would people with cognitive or other disabilities benefit from captioning or audio description of synchronized media on public entities’ Web sites?  If so, how, and how can a monetary value be assigned to these benefits?

Question 110: Currently, what are the specific costs associated with captioning prerecorded and live-audio content in synchronized media, including the costs of hiring professionals to perform the captioning, the costs associated with the technology, and other components involved with the captioning process?  Aside from inflation, are these costs expected to change over time?  If so, why will they change, when will they begin to do so, and by how much?

Question 111: Currently, how much synchronized media content are public entities providing that would need to be audio described due to the presence of important visual aspects that would not be conveyed via sound?  What types of content on public entities’ Web sites would need to be audio described?

Question 112: Currently, what are the specific costs associated with audio describing content in synchronized media, including the costs of hiring professionals to perform the description, the costs associated with the technology, and other components involved with the audio description process?  Aside from inflation, are these costs expected to change over time?  If so, why will they change, when will they begin to do so, and by how much? 

Public Educational Institutions

Question 113: Do public educational institutions face additional or different costs associated with making their Web sites accessible due to the specialized nature of the software used to facilitate online education, or for other reasons? If so, please describe these additional costs, and discuss how they are likely to be apportioned between public educational institutions, consumers, and software developers.

Question 114: How should the monetary value of the benefits and costs of making the secured portions of public educational institutions’ Web sites accessible be measured? What methodology should the Department use to calculate these benefits and costs?

Question 115: Is there a cost threshold for the expected costs of accessibility testing and remediation above which it becomes more cost effective or otherwise more beneficial for a public educational institution to build a new Web site instead of remediating an existing one? If so, what is that cost threshold for each type of public educational institution (e.g., public elementary school, public secondary school, public school district, public postsecondary institution)? How likely is each type of public educational institution to cross this threshold?

Impact on Small Entities

Question 116: Do all or most small public entities have Web sites?  Is there a certain population threshold below which a public entity is unlikely to have a Web site?

Question 117: How large and complex are small public entities’ Web sites?  How, if at all, do the Web sites of small public entities differ from Web sites of larger public entities?  Do small public entities tend to have Web sites with fewer pages?  Do small public entities tend to have Web sites that are less complex?  Are small public entities less likely to provide information about or access to government services, programs, and activities on their Web sites?  Do the Web sites of small public entities allow residents to access government services online (e.g., filling out forms, paying bills, requesting services)?

Question 118: Are persons with disabilities residing in small public entities more or less likely to use the public entities’ Web sites to access government services?  Why or why not?

Question 119: Is annual revenue an effective measure of the potential burdens a Web accessibility rule could impose on small public entities?  Is there other publicly available data that the Department should consider in addition to, or instead of, annual revenue when considering the burdens on small public entities to comply with a Web accessibility rule?

Question 120: Are there resources that a small public entity would need to comply with a Web accessibility rule that they would not be able to purchase (e.g., staff or contractors with expertise that are not available in the geographic area)?

Question 121: Do small public entities face particular obstacles to compliance due to their size (e.g., limited revenue, small technology staff, limited technological expertise)?  Do small public entities of different sizes and different types face different obstacles?  Are there other constraints on small public entities’ ability to comply with a Web accessibility rule that the Department should consider?

Question 122: Are small public entities likely to determine that compliance with a Web accessibility rule would result in undue financial and administrative burdens or a fundamental alteration of the services, programs, or activities of the public entity?  If so, why would these compliance limitations result?

Question 123: Are there alternatives that the Department could consider adopting that were not previously discussed that could alleviate the potential burden on small public entities?  Please provide as much detail as possible in your response.