Who is to Blame for Delay in ADA Web Access Regs? It’s not the DOJ

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This is an article about the delay in web access regulations. The regulations will help state and local government agencies in the United States make sure websites work for disabled people. They will help people with disabilities fully participate in all activities of state and local governments. This includes education, recreation, citizenship, and more. The regulations have been delayed. They are now stuck in a part of the United States government called the Office of Management and Budget, or OMB. The OMB helps the President of the United States meet their goals about what regulations are needed. The wait for regulations has been too long. The Americans with Disabilities Act is about to have its 33rd anniversary. It is long past time for these regulations.

Black and white image of woman in deserted train station, sitting on a suitcase, waiting for a train. 1950's vibe

The 33rd anniversary of the Americans with Disabilities Act (ADA) falls on Wednesday, July 26, in just about two weeks. Will that be the day that official notice of long-promised web accessibility regulations for state and local governments in the United States is finally published?

The official notice, called a Notice of Proposed Rule Making (NPRM) is long overdue. The regulations, if we ever get them, will be published by the United States Department of Justice (DOJ). But right now, the delay is not the DOJ’s fault.

Instead, the NPRM is stuck in a different part of the federal government called the Office of Management and Budge (OMB). It’s past time for the OMB to act.

Here’s what is happening:

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What Regulations Are We Waiting For?

We’re waiting for the first official step in adopting regulations that will address specifics about what state and local government agencies must do to make sure people with disabilities are not excluded from digital programs and services. These regulations will be issued under what is called Title II of the Americans with Disabilities Act (ADA). Title II is the part of this comprehensive civil rights law that covers state and local governments.

In short, we’re waiting for long overdue ADA Title II web accessibility regulations. We also need web accessibility regulations for Title III of the the ADA, the part that covers private sector organizations that serve the public. Right now those are not even on the table (though they should be). We need to think of the Title II web accessibility regulations as the first step.

We’ve been waiting for that official step (The NPRM) for a very long time.

I’ve written and spoken extensively about the wait for web accessibility regulations, most recently in my article titled Deja Vu All Over Again? DOJ Announces Intent to Adopt Web Accessibility Regulations for State and Local Governments. First written in August 2022, the article was updated with the most recent status of the possible rule on June 16, 2023.

The June 16 update announced a new target date for the NPRM. That date was some unspecified day in June, 2023. It’s now July. Still no sign of the NPRM.

Why do we need Web Accessibility Regulations for State and Local Government Agencies?

This question has a two part answer:

  1. In some ways we actually DON’t need these regulations because the Americans with Disabilities Act already prevents discrimination and requires effective communication. Neither are possible without digital accessibility. The DOJ has been relying on the Americans with Disabilities Act to ensure digital accessibility of state and local government websites for two decades. In many ways the ADA itself is enough.
  2. But in many important ways the country really DOES need these regulations. We need them to (finally) end all arguments that somehow digital accessibility is not required despite the sweeping language of the ADA.

    These regulations will benefit both people with disabilities and government agencies providing digital services (which is all government agencies). And these regulations reflect actions that responsible government agencies are already taking. They reflect civic inclusion for disabled people that the Department of Justice has repeatedly championed.

    Delaying them is not fair to disabled citizens and not fair to the agencies covered by Title II of the ADA. In that way these regulations are essential.

Please read my main article on the Title II web accessibility regulations for more details and links in connection with this two-part answer. The main article also explains why we need so much more than this long awaited Title II web reg, including private sector regulations and digital technology regulations that extend beyond websites.

Who’s to Blame for the Delay? It’s the OMB, Not the DOJ

The Notice of Proposed Rule Making, when and if it comes, comes from the United States Department of Justice (DOJ). But is the DOJ to blame for this most recent round of delays?

Turns out it is not.

Federal departments have to submit any Notice of Proposed Rule Making (NPRM) to another agency before the NPRM can be officially published. This part of the federal government is called the Office of Management and Budget (OMB). And more specifically, proposed regulations are submitted to the Office of Information and Regulatory Affairs (OIRA) that is part of the Office of Management and Budget.

It is here, in the OMB, where the web regulations are stuck.

Both OMB and OIRA sit within the Executive Office of the President. You can read more about this part of the federal government here.

The official OMB website explains that the “Office of Management and Budget oversees the implementation of the President’s vision across the Executive Branch.” And specifically, its roles include “Coordination and review of all significant Federal regulations from executive agencies.”

President Biden’s vision includes accessibility. In 2021 the White House issued an Executive Order on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce. Not just DEI, but DEI+A for accessibility. (Read the Fact Sheet for this Executive Order here.)

The DOJ did its job and submitted the NPRM to the OIRA / OMB on March 6, 2023. You can find this information in this official OMB reporting. The reporting gives the status of the NPRM as “Pending EO 12866 Regulatory Review.” (EO stands for Executive Office.)

March 6, 2023 was over four months ago. Four long months that the web accessibility NPRM has been waiting for OIRA / OMB approval. (Note that Under EO 12866, OIRA has up to 90 days (which can be extended) to review a rule.

Lots of intricacies, lots of abbreviations. But the bottom line is that the DOJ’s draft NPRM is sitting in another government office waiting for the OK signal to release the NPRM to the public and start the rulemaking process.

I ask the OMB: Why the delay? Why hold up rules that can spell the difference between inclusion and exclusion of people with disabilities from full participation in core activities of citizenship like voting, education, and civic engagement? Why delay when President Biden’s vision clearly includes accessibility? When these regulations are not a radical departure from how the ADA has been interpreted for decades by the agency charged with its enforcement?

The ADA is soon to turn 33. The country has waited long enough for these state and local government web accessibility regulations. The time for the OMB to act is now.