But on April 28th, the DOJ took a step back when it withdrew the Notice of Proposed Rulemaking under Title II, which had been sitting with OMB since July 2014. Yesterday, the DOJ followed up with a Supplemental Advance Notice of Proposed Rulemaking (SANPRM) soliciting additional public comment on various website accessibility issues and asking for related cost information for preparing a regulatory impact analysis.

The DOJ indicated that it is particularly interested in receiving comments from all those who have a stake in ensuring that websites of public entities are accessible to people with disabilities or “who would otherwise be affected by a regulation requiring that websites be accessible” (*hint…hint…it’s asking for public comment from all businesses with websites out there that could potentially be considered public accommodations under Title III*).

The SANPRM poses more than 120 questions for public comment. Here are some of the highlights:

• Are there any issues or concerns the DOJ should consider before proposing WCAG 2.0 Level AA as the accessibility standard?
• Are there any existing designs, products, or technologies that would result in accessibility and usability that is either substantially equivalent to or greater than WCAG 2.0 Level AA?
• Should the DOJ address the accessibility of mobile apps and, if so, what standard it should consider adopting?
• Should a lower compliance standard or longer timeline be applied to smaller entities?
• Should the DOJ consider exempting archived content from the accessibility standards and, if so, how should “archived content” be defined?
• To what extent should covered entities be responsible for ensuring that third-party web content (either linked from the site or posted to the site) is accessible?
• Does an effective date of two years after the publication of a final rule strike an appropriate balance of stakeholder interests, or should the DOJ consider different approaches for phasing in compliance?
• 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? What are the costs and availability of doing so?

This rulemaking is particularly important for businesses subject to Title III as “public accommodations” as the Title II rulemaking will inform the agency of how it should move forward with its Title III website accessibility rule. Comments on the SANPRM must be submitted by August 8, 2016.

So what does this "step back" mean for the DOJ in issuing a proposed rule to provide Title III businesses with the much needed clarity on website accessibility? Most likely another delay. The DOJ most recently stated that the Title III rule would be released in 2018, but... we're not going to hold our breath in the meantime.

However, on November 19, 2015, the federal government released its Fall 2015 Semiannual Unified Agenda and Regulatory Plan, identifying regulatory priorities and significant regulatory actions that agencies expect to take in the coming year. The Fall 2015 Unified Agenda indicates that the DOJ is further delaying this much-anticipated proposed rule, and has moved the rulemaking to its “long term action” list.

Concurrently, the DOJ announced that it expects to publish its proposed rule for website accessibility applicable to State and local governments under Title II in January 2016. In the accompanying Statements of Regulatory Priorities, the DOJ explains that it believes the Title II rulemaking “will facilitate the creation of an important infrastructure for web accessibility” and inform the agency of how it should move forward with its Title III website accessibility rule. Accordingly, the DOJ indicates that it now expects to publish the Title III proposed rule during fiscal year 2018.

Despite significant delays in rulemaking by the DOJ, plaintiffs are resorting to filing lawsuits, sending demand letters, or entering into settlements with companies whose websites and/or mobile applications are not readily accessible to, or usable by, blind individuals. For those businesses who have not yet been the target of such action, precautionary measures can be taken and businesses need look no further than recent settlements with plaintiffs or the DOJ to determine compliance obligations.

If you are unsure whether your site is accessible to the blind, there are ways to find out – either through the use of third-party experts or other free tools that provide a general sense of whether the website can be read by a screen reader. Once you figure out where you stand, it often makes sense to come up with a plan to address any deficiencies. You may not be able to get everything done overnight, but every step in the right direction can help.

Specifically, the DOJ alleged that individuals who are blind or have low vision and use screen reader software may not be able to properly use the website or app for various reasons. For example, the images, buttons, and form fields were unlabeled or had inaccurate alternative text; pop-ups were not being reported to screen readers; tables contained missing header information and proper mark-ups; and boldface type was used to show which fields are required. The DOJ also alleged that individuals who are deaf or hard of hearing could not understand videos presented on the website because the captioning is inaccurate; and individuals who had physical disabilities affecting manual dexterity faced barriers on the website because Java script throughout the website was not available to users who are unable to use a mouse.

The settlement with Ahold U.S.A., Inc. and Peapod, LLC, the owners and operators of www.peapod.com, requires the companies to ensure that the website and mobile app conform to the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 Level AA (“WCAG 2.0 AA”). The settlement also requires the companies to ensure that any new content added to the site or app is also in conformance with the requirements of the WCAG 2.0 AA. In addition, the companies must ensure that any vendors providing third-party content on the site or app provide content in a format that conforms to WCAG 2.0 AA or can be made to conform to WCAG 2.0 AA by Peapod.

The DOJ continues to aggressively pursue its enforcement agenda when it comes to ensuring that websites are accessible to persons with disabilities under the ADA. The Agency intends to issue a Notice of Proposed Rulemaking in June 2015 to provide guidance on website accessibility to private parties covered under Title III. Although the DOJ has yet to issue proposed regulations, it is clear from its enforcement efforts that the DOJ views the ADA to apply to both online and in-store places of public accommodations.