The Department of Health and Human Services (HHS), through its Office for Civil Rights, recently published a historic final rule (the Rule) advancing broad protections for people with disabilities under section 504 of the Rehabilitation Act of 1973 (Section 504). The Rule broadly applies to all recipients of federal financial assistance from HHS (recipients) and to recipients’ programs and activities that involve individuals with disabilities in the United States.
Section 504 and its implementing regulations, as updated by the Rule, prohibit discrimination on the basis of disability in HHS-funded educational, health, welfare and social services programs and activities. As outlined more fully below, the Rule’s accessibility requirements include specific technical standards for web content and mobile apps. The Rule also addresses the accessibility of programs and activities provided through kiosks.
Technical standard
The Rule requires that websites and mobile applications of recipients conform to the Web Content Accessibility Guidelines (WCAG), Version 2.1, Level A and Level AA success criteria. Recipients may opt to conform to different standards (such as WCAG 2.2) or use different methods to ensure accessibility, provided that the alternative standards or methods result in substantially equivalent or greater accessibility and usability than WCAG 2.1, Level A and Level AA.
The approach adopted by HHS aligns with the digital accessibility requirements set forth in new regulations implementing Title II of the Americans with Disabilities Act (ADA) recently promulgated by the Department of Justice (ADA Title II Rule). See our article for more information on the ADA Title II Rule.
Content and apps provided by third parties
The Rule’s digital accessibility requirements apply to web content and mobile apps provided or made available by third parties on behalf of recipients through contractual, licensing, or other arrangements. Accordingly, recipients should ensure that their contracts for app and website design appropriately address digital accessibility requirements. Entities providing digital deliverables to recipients should take steps to make sure their covered products and services conform to WCAG 2.1, Levels A and AA, or to a standard that provides equivalent or greater accessibility.
Exceptions
The Rule contains exceptions from the digital accessibility requirements for (i) archived web content; (ii) preexisting conventional electronic documents; (iii) content posted by a third party, such as a member of the public; (iv) individual password-protected documents; and (v) preexisting social media posts. In commentary to the Rule, HHS emphasizes that recipients may still be obligated to make some of these items accessible under other Section 504 obligations, including obligations to provide equal opportunity and effective communication to persons with disabilities.
Kiosks
The Rule also addresses the accessibility of programs and activities provided through kiosks, an area not explicitly addressed in the ADA Title II Rule. The Rule does not require that kiosks themselves be made accessible, though HHS notes in commentary that if kiosks are not designed with people with disabilities in mind, they may serve as barriers to recipients' programs and activities. The Rule clarifies that recipients using kiosks must make their programs accessible to persons with disabilities, and they may accomplish this through work-around procedures, such as allowing persons with disabilities to go directly to the personnel at the main desk to register for necessary services. Crucially, any work-around procedures must afford persons with disabilities the same access, the same convenience and the same confidentiality that the kiosk system provides.
Time line
The Rule mandates that covered digital properties be made compliant within either two or three years of publication (May 2026 and May 2027 respectively), dependent on whether the entity is a “small” (fewer than 15 employees) or “larger” (15 or more employees) recipient.
Conclusion
In light of the Rule and its various requirements, it is important that recipients evaluate and reassess their accessibility practices across their organization, ensuring that their products, services and digital properties are in compliance. This includes ensuring that appropriate contractual arrangements are in place with vendors providing digital deliverables. Additionally, recipients should evaluate their programs and activities that use kiosks to ensure that any work-around procedures for persons with disabilities afford equal access, convenience and confidentiality.
Client Alert 2024-103
