ADA Compliance and Digital Accessibility Rules for Higher Education

WEBINAR ACCESSIBILITY AND CHAT Use Zoom CC button or Streamtext (streamtext.net) for human-generated captions Slides available electronically through Box (uwmadison.app.box.com) If using chat for questions, include email address 1

ADA NEW DIGITAL ACCESSIBILITY RULE ADA COORDINATORS GROUP JUNE 28, 2024 2

PRESENTERS Vanessa Coterel, Deputy ADA Coordinator; The Ohio State University Enjie Hall, ADA Coordinator; University of Minnesota L. Scott Lissner, ADA Coordinator; The Ohio State University Ruben Mota, ADA Coordinator; University of Wisconsin Cara Reader, Director of Compliance, Training, and ADA; Indiana University 3

WEBINAR GOALS Understand: oTitle II changes: detailed technical standards for accessibility of digital tools oApplicable disability laws and how they apply to digital accessibility oThe timeline to comply with new expectations of the rule and what types of digital accessibility is included in new laws oThe high ceiling of demonstrating a fundamental alteration or undue burden and potential exceptions Explore: oPotential compliance strategies your institution can use oResources applicable to different roles, such as content writers, policy makers, developers, trainers/educators 4

DISABILITY LAWS ADA AND SECTION 504 Provide equally effective access to programs, benefits, and services for qualified individuals with disabilities in most integrated manner possible oSection 504 of the Rehabilitation Act (34 CFR 104 [ed.gov]) oTitle II of the Americans with Disabilities Act (28 CFR 35 [ada.gov]) Americans with Disabilities Act oCommunication access Section 504 of the Rehabilitation Act oPrograms, services, and benefits oDepartment of Education (new regulations pending) oHealth and Human Services incorporate the Title II digital accessibility requirements 5

DISABILITY LAWS SECTION 508 AND STATE Section 508 of the Rehabilitation Act oFederal purchasing policy oAdaptable models State laws 6

ADA AND DIGITAL ACCESSIBILITY New rule, but consistent and ongoing guidance: o1996: Department of Justice (DOJ) first articulated that ADA applies to web content o2003: DOJ published guidance, Accessibility of State and Local Government Websites to People with Disabilities, regarding website accessibility o1997-2024: DOJ/Office for Civil Rights (OCR) investigations; consent decrees/resolutions requiring developing policies/processes to ensure accessible digital landscape o2019: OCR forms National Web Accessibility Team to address increased complaints 7

ACCESSIBLE VS. REASONABLE ACCOMMODATIONS 27% of individuals have a disability (Centers for Disease Control and Prevention [cdc.gov]) 21% undergraduates; 11% graduates (National Center for Education Statistics [nces.edu.gov]) Lead with accessibility: oProactive oEnsures timely access, privacy, and independence oBenefits everyone and promotes inclusion Accommodations are: oReactionary oNot timely oOnly to be used when accessibility is not yet possible, there is an accessibility gap due to lack of inclusive design, or unique individual access need 8

NEW RULES TIMELINE REQUIREMENTS Effective April 24, 2024 Higher education institutions must comply by April 24, 2026 or 2027 depending on their size Timeline doesn't supersede any current OCR settlement agreements 9

WEB CONTENT ACCESSIBILITY GUIDELINES New rule's technical standard is WCAG 2.1 AA (w3.org) Internationally-accepted; multiple versions since 1999 Technology neutral; descriptive (achievement oriented) Backwards conforming 2.1- 2.0 - 1.0 Over 50 Success Criteria with three levels of conformance: oLevel A minimum oLevel AA satisfies Level A and provides more accessibility oLevel AAA meets Level AA and is most accessible 10

WHAT IS COVERED IN THE NEW RULE? Websites Software Apps Multimedia (captions/audio descriptions) Conventional electronic documents Social media Course content Library content 11

CONFORMING ALTERNATE VERSIONS Permitted only when: oTechnologically not possible to achieve WCAG 2.1 AA oLegal limitations prevent the digital tool or resource from complying Provides access to the same benefit and is kept as up-to-date Telephone/fax lines not permitted; do not provide equivalent: oEase of use oTimeliness to information oIndependence oPrivacy 12

UNDUE BURDEN & FUNDAMENTAL ALTERATION Decision requires evidence-based approach: oMade by head of public entity or their designee oMust consider all resources available in both funding and operation of the service, program or activity oIn writing and with a reason for reaching the conclusion (28 CFR 35.164 [ada.gov]) 13

FACTORS TO BE CONSIDERED The overall resources of the subunit and parent entity, including its workforce, the number, type, and location of its facilities; and financial resources; The type of operation, including the composition and structure, of the workforce, the administrative or fiscal relationship of the subunit in question to the parent entity; Technical infeasibility; Direct threats to safety; and The impact on operations and the ability to conduct business and meet the program s fundamental goals (fundamental alteration) 14

FUNDAMENTAL ALTERATION FACTORS Purpose and outcome, core goals, rather than delivery format Central knowledge, skills, and experiences of participants Reflected in: oMission statements oLicensing requirements oRegulatory requirements oAcademic and technical standards oProgram and curriculum creation documents (Wynne v. Tufts University School of Medicine 932 F.2d 19 (1991)) 15

NONCOMPLIANCE WITH MINIMAL IMPACT ON ACCESS Opportunity to respond to version updates and improvements 100% compliance may not always be achievable in a constantly evolving digital ecosystem Making good choices and following a process; good faith efforts Rule doesn't prevent innovation 16

EXCEPTIONS TO NEW RULE Five permitted narrow exceptions to comply with the new rule: 1. archived web content; 2. preexisting conventional electronic documents; 3. preexisting social media; 4. individualized, password protected or otherwise secured conventional documents; and, 5. third-party posted content. The exceptions help to ensure that compliance is feasible by enabling public entities to focus their resources on making frequently used or high impact content WCAG 2.1 Level AA compliant first. (Department of Justice. Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities [federalregister.gov]) All digital tools exempt under the new rule must still be made accessible upon request 17

EXCEPTIONS DETAILS Three exceptions are limited to content existing prior to the compliance date: archived web content, conventional electronic documents, and social media feed, but do not apply for any content that is currently used to apply for, gain access to, or participate in the public entities' programs, services, and activities The third-party content exception does not apply to content posted due to a contractual, licensing, or other arrangement with the public entity, or to third party content or tools public entities post on their websites The exception for individualized, password-protected or otherwise secure conventional electronic documents about a specific individual, their property, or their account does not apply to the platform on which those documents are made available 18

COMPLIANCE STRATEGIES Leadership endorsement and funding determination to comply Update policy; create strategic implementation plans with dates Inventory digital assets Conduct audits of software, content, tools, applications, and communications Have a remediation plan with dates, processes, and procedures 19

ADDITIONAL COMPLIANCE STRATEGIES Develop procurement processes: oProduct accessibility is vetted oContracts contain accessibility requirements Exceptions: oDetermine exceptions and who is responsible oHold vendors accountable; require development of conforming alternative 20

RESOURCES ADA.gov oNew rule factsheet oSmall entity compliance guide Full text of new rule (federalregister.gov) Web Accessibility Initiative resources for: oContent writers oDevelopers oManagers oPolicy Makers oTrainers and Educators 21

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