Understanding Undue Burden Under ADA Title II: A Practical Guide for Public Entities

When compliance costs meet fiscal reality: Navigating the undue burden provision with confidence and clarity

Disclaimer: This article provides general information about ADA Title II requirements and should not be considered legal advice. Consult qualified legal counsel before making any undue burden determinations.

The Department of Justice’s April 2024 ADA Title II rule brought digital accessibility squarely into the spotlight for public entities across the United States. While the rule establishes clear requirements for making websites and mobile applications accessible, it also recognizes that not every public entity has unlimited resources.

And when it comes to ADA Title II clients, the most requested topic, by far, is undue burden. I believe this is for two reasons. One, the DOJ rule is somewhat vague on the topic, and entities want to follow a process but are unsure of what that process entails.

And two, some public entities believe that compliance will be too costly and require resources they don’t have.

This is where the undue burden provision becomes crucial for city, county, and state-level agencies trying to balance accessibility compliance with budget realities.

If you’re a public sector leader wrestling with the financial implications of ADA Title II compliance, you’re not alone. The undue burden provision isn’t a get-out-of-jail-free card, but it is a legitimate pathway for entities facing genuine financial hardship. Let’s explore what this means, when it applies, and how to properly document your case if you need to pursue this route.

What Exactly Is “Undue Burden” Under ADA Title II?

Undue burden refers to circumstances where achieving full digital accessibility compliance would impose significant difficulty or expense relative to a public entity’s overall resources and circumstances. Think of it as the ADA’s recognition that not every municipality has the same budget as a major metropolitan area, and not every state agency operates with the same resource constraints.

The concept isn’t new – it’s been part of ADA regulations for decades in other contexts. However, the April 2024 Title II rule specifically addresses how undue burden applies to web content and mobile app accessibility requirements. The key here is that undue burden is determined case-by-case, considering factors like:

• Your entity’s total annual budget
• The nature and scope of your operations
• The cost of achieving full compliance
• Available alternative methods to provide accessibility

Here’s the critical point: claiming undue burden doesn’t exempt you from accessibility altogether. Instead, it requires you to do what’s reasonably feasible within your resources while providing alternative accessibility measures.

The Non-Negotiable Reality: Subsection H and Your Continuing Obligations

Before we dive deeper into the undue burden process, let’s address a crucial misconception: subsection H of the Title II rule makes it clear that you simply can’t decide you don’t want to comply. This isn’t a matter of preference or convenience – it’s a legal requirement with specific obligations that remain in place even when financial constraints are genuine.

Even if you successfully establish an undue burden claim, you must still take meaningful action. The rule requires public entities to:

Ensure Maximum Feasible Accessibility: You must implement whatever accessibility improvements you can reasonably afford. This might mean fixing the most critical barriers first, improving key service pages, or addressing fundamental navigation issues while leaving more complex remediation for later.

Provide Alternative Access Methods: Phone-based services, in-person assistance, email support, or alternative document formats aren’t just nice-to-have options – they’re required alternative measures that must provide equivalent access to your digital services.

Maintain an Active Improvement Plan: You can’t claim undue burden and then ignore accessibility indefinitely. You must demonstrate ongoing efforts to increase accessibility as resources become available, whether through budget improvements, grant funding, or decreased remediation costs over time.

Document Everything: Your decision-making process, financial analysis, alternative measures, and improvement timeline all require thorough documentation. This isn’t just paperwork – it’s evidence of your good faith efforts to serve all community members within your resource constraints.

The bottom line? Undue burden is about finding a financially sustainable path to accessibility, not avoiding your obligations to provide equal access to public services.

The Reality Check: When Undue Burden Might Apply

Let’s be honest – most public entities would prefer not to navigate the undue burden process if they can avoid it. But there are legitimate scenarios where this provision makes sense:

Small Rural Municipalities: A town of 2,500 people with a $1.2 million annual budget might face genuine hardship if full website remediation costs $200,000 plus ongoing maintenance. The math simply doesn’t work when that represents nearly 17% of the entire municipal budget.

Specialized Agencies with Limited Budgets: A regional transit authority or water district might have specific mandates and constrained funding sources that make large-scale digital accessibility investments genuinely burdensome.

Entities in Financial Distress: Public entities already operating under financial stress, perhaps with existing debt obligations or recent budget cuts, may legitimately struggle to fund comprehensive accessibility improvements.

The key is genuine financial impact, not simple budget preference. “We’d rather spend the money elsewhere” isn’t undue burden – “This expenditure would force us to cut essential services” might be.

The Documentation Challenge: Building Your Case

If you’re considering an undue burden claim, documentation is everything. The DOJ and potential legal challengers will scrutinize your financial justification thoroughly. Here’s what you need to prepare:

Executive Summary and Decision Authority

Start with a clear, concise executive summary that outlines your undue burden claim without getting into sensitive financial details. Identify the specific WCAG 2.1 AA success criteria you’re addressing – remember, AAA compliance isn’t required under the Title II rule, so don’t muddy the waters by including those requirements.

Most importantly, ensure the right person makes the decision. This needs to be your entity’s head or an authorized designee with documented authority to make these determinations. A department manager can’t make an undue burden call for the entire city government.

Financial Capacity Analysis: Show Your Work

This is where the rubber meets the road. You’ll need comprehensive financial documentation including:

• Total annual operating budget with breakdown by major categories
• IT and digital services budget allocation (this shows you’re not ignoring technology entirely)
• Available discretionary funds (demonstrating limited flexibility)
• Outstanding debt obligations and reserve fund status
• Multi-year financial projections showing ongoing impact

The goal isn’t to claim poverty – it’s to demonstrate that accessibility compliance costs represent a disproportionate burden relative to your overall resources and mission-critical obligations.

Compliance Cost Analysis: Get Real Numbers

Vague estimates won’t cut it. You need detailed cost projections for:

• Professional accessibility audits and assessments
• Website and mobile app remediation work
• Staff training and capacity building
• Ongoing maintenance and testing requirements
• Multi-year implementation timeline costs

Here’s where Accessiblü’s approach differs from traditional audit-only companies. While others might give you a lengthy list of issues without solutions, our managed accessibility ops model provides realistic cost projections that include simultaneous remediation. This gives you more accurate budget planning and demonstrates you’re serious about achieving maximum feasible accessibility.

Alternative Accessibility Measures: Your Commitment to Access

The undue burden provision requires you to implement alternative accessibility measures while working toward greater digital compliance. This isn’t optional – it’s a legal requirement that demonstrates your commitment to providing equal access through different means.

Current and Proposed Accessibility Efforts

Document what you’re already doing for accessibility:

• Existing accessible features on your website or mobile apps
• Staff trained to provide accessibility support
• Alternative access methods currently available (phone services, in-person assistance)
• Budget already allocated to accessibility improvements

Then outline your proposed maximum feasible accessibility improvements:

• Specific accessibility enhancements you can implement within budget constraints
• Realistic timeline for these improvements
• Staff resources dedicated to accessibility support
• Alternative service delivery methods (phone assistance, in-person help, alternative document formats)

Service Delivery Alternatives: Meeting People Where They Are

Remember, accessibility isn’t just about websites. You might provide:

• Dedicated phone lines with trained staff
• In-person assistance at physical locations
• Documents in alternative formats (large print, audio, Braille)
• Email-based service options
• Partnerships with disability service organizations

The key is ensuring these alternatives provide equivalent access to your services, not lesser or delayed access.

The Legal Framework: Staying Compliant While Claiming Hardship

An undue burden claim must include several critical legal components:

Proper Decision Authority and Documentation

• The decision must be made by the head of your public entity or designated authority
• Formal written determination with signature and date
• Clear documentation of the authority to make such determinations

Maximum Feasible Accessibility Requirement

You can’t simply claim undue burden and walk away. You must ensure “maximum feasible accessibility” within your resource constraints. This means doing everything you reasonably can while implementing robust alternative measures.

Public Notice and Stakeholder Engagement

While not explicitly required, providing public notice of your undue burden claim demonstrates transparency and allows for community input. This might include:

• Public notification through normal government channels
• Opportunity for disability community input
• Clear information about grievance procedures
• Documentation of how you addressed community concerns

The Ongoing Obligation: Periodic Review and Improvement

An undue burden determination isn’t permanent. You must establish:

Regular Review Schedule

• Annual assessment of financial capacity changes
• Reassessment of technical feasibility as costs decrease
• Evaluation of how well alternative measures are working

Improvement Planning

• Clear pathway toward greater accessibility as resources allow
• Specific triggers for reassessing undue burden status (budget increases, grant funding, etc.)
• Long-term accessibility goals and timelines

This demonstrates that undue burden is a temporary financial constraint, not a permanent exemption from accessibility responsibilities.

Working with Accessibility Professionals: The Strategic Advantage

Navigating an undue burden claim while ensuring maximum feasible accessibility requires expertise. This is where Accessiblü’s managed accessibility ops approach provides distinct advantages over traditional audit-only services.

Instead of simply delivering a list of issues (which might actually strengthen an undue burden claim by showing overwhelming problems), our concierge-style approach helps you:

• Prioritize the most critical accessibility improvements within budget constraints
• Implement simultaneous testing and remediation for cost efficiency
• Develop realistic timelines and budget projections
• Create documentation that demonstrates good faith efforts toward compliance

Our agile model recognizes that accessibility, like cybersecurity, requires ongoing attention rather than one-time fixes. This approach helps you build a stronger case for both your current undue burden claim and your future path toward full compliance.

Common Pitfalls to Avoid

Based on years of working with public entities on ADA compliance, here are the mistakes that can derail an undue burden claim:

Inadequate Financial Documentation: Vague budget claims without detailed supporting documentation won’t survive scrutiny. Show your work with specific numbers and professional financial analysis.

Ignoring Alternative Measures: Claiming undue burden while providing no alternative accessibility options will likely fail. You must demonstrate equivalent access through other means.

Wrong Decision Maker: Having a department head make entity-wide undue burden determinations can invalidate your claim. Ensure proper authority is documented.

No Improvement Plan: Treating undue burden as a permanent solution rather than a temporary measure while building toward greater accessibility compliance.

Unrealistic Cost Estimates: Either inflating costs to strengthen your claim or minimizing them without proper professional assessment can backfire during review.

The Bottom Line: Balancing Compliance and Fiscal Responsibility

The undue burden provision under ADA Title II represents a pragmatic recognition that public entities operate under real financial constraints. However, it’s not a simple escape hatch from accessibility responsibilities. Success requires thorough documentation, genuine financial hardship, robust alternative measures, and a clear path toward improved compliance over time.

If you’re considering an undue burden claim, start with a professional accessibility assessment and realistic cost analysis. Understand that this process requires significant documentation and ongoing commitments. Most importantly, remember that the goal isn’t to avoid accessibility altogether – it’s to find a sustainable path toward inclusive digital services that works within your entity’s resource constraints.

The April 2024 Title II rule reflects the reality that digital accessibility is no longer optional for public entities. Whether you pursue full compliance or navigate the undue burden process, the key is taking deliberate, documented action that demonstrates your commitment to serving all community members effectively.

Disclaimer: This article provides general information about ADA Title II undue burden requirements and should not be considered legal advice. Each public entity’s circumstances are unique, and we strongly recommend consulting with qualified legal counsel familiar with ADA compliance requirements before pursuing any undue burden claim.

Accessiblü makes no guarantees regarding the outcome of any undue burden request and cannot be held responsible for decisions made by the Department of Justice, courts, or other enforcement agencies regarding such requests. This information is provided as an educational resource to help public entities understand undue burden documentation requirements, but the ultimate success of any request depends on the specific facts and circumstances of each case.

Public entities should seek independent legal review and assume full responsibility for ensuring their documentation meets all applicable legal requirements before proceeding with any undue burden claim.