Following years of delay, the U.S. Department of Justice (DOJ) is requesting comment on more than 120 questions regarding the proposed web accessibility rule under Title II of the Americans with Disabilities Act (ADA). Though the Supplemental Advance Notice of Proposed Rulemaking (SANPRM) applies to state and local governments, it also provides a critical window into the delays in rulemaking with regard to all businesses, as similar standards may be required under both Titles II and III of the ADA.

In the SANPRM issued last week, the DOJ indicates that conformance with the Web Content Accessibility Guidelines 2.0 Level AA is the standard it is likely to require under a proposed rule, and that it may allow up to two years for covered entities to come into compliance. The SANPRM also shows that the DOJ is grappling with some of the difficult questions that entities covered by the ADA have raised with regard to website accessibility. For example, the DOJ solicits input on captioning requirements for live audio content, exemptions with regard to third-party content on websites, and treatment of archived documents and information.

The DOJ also is considering the impact of web accessibility rules on smaller entities and whether it should require conformance with a lesser standard for them. Also discussed is the treatment of password-protected information and whether this must be made compliant in the same manner as information accessible to the general public. The DOJ is considering whether to require compliance of password-protected information only where necessary to provide access to an individual with a disability. Additionally, the SANPRM indicates that the DOJ is reviewing whether and how to apply accessibility requirements to mobile applications.

Much of the DOJ's focus is on obtaining further information for its regulatory impact analysis. It is soliciting information about the benefits of web accessibility to persons with vision, hearing, manual dexterity, and cognitive disabilities, as well as how inaccessible websites may financially impact persons with disabilities.The DOJ also is reviewing the direct and indirect costs associated with making existing websites accessible.

While the DOJ struggles to put forth a rule on website accessibility, government enforcement and private actions continue. Private plaintiffs' firms continue to circulate demand letters and file suits, while advocacy groups simultaneously enter into structured settlements and bring litigation.