In recent months, acupuncturists have reported a surge in lawsuits filed against their practices for failing to comply with a provision of the 1990 Americans with Disabilities Act (ADA); specifically Title III and its requirements for accessibly to public websites now determined to be "places of public accommodation." By the end of January 2021, about a hundred health care providers, including more than two dozen Acupuncturists in California, had been named in lawsuits alleging ADA violations for unequal access to health care services because their public websites did not include or support accessibility programming and software for users with a disability.

The ADA and Title III

The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places open to the general public. There are five sections (Titles I-V ) to the law. Title three (III) is the focus of this article and covers public access and accessibility requirements for "Public Accommodations."

Title III: Public Accommodations and Services Operated by Private Entities

• Prohibits places of public accommodation from discriminating against individuals with disabilities. "Public accommodations" include privately owned, leased or operated businesses like hotels, restaurants, retail merchants, health care offices, theaters, and so on.
• Sets the minimum standards for buildings' accessibility and requires public accommodations to remove physical barriers where it is reasonable.
• Directs businesses to make "reasonable modifications" to their usual ways of doing things when serving people with disabilities.
• Requires that businesses take steps necessary to communicate effectively with customers with vision, hearing or speech disabilities.
• Regulated and enforced by the U.S. Department of Justice

The ADA and Websites

When enacted, the ADA law granted accessibility by requiring businesses and government agencies to eliminate physical barriers to entering and accessing indoor spaces. As businesses and agencies evolved to include virtual spaces, compliance with the ADA has kept pace with the law's intent, which grants all persons equal access to commerce and experiences, whether in-person or online.

In recent years, courts have decided "websites constitute a service of public accommodation," meaning access to websites requires technical programming that provides equal access, use and experience for people with a disability.

Civil Penalties Inflation Adjustment Under Title III

The ADA does not allow for monetary damages paid directly to plaintiffs. Only attorneys' fees are awarded. The maximum civil penalty for a first violation under Title III is $75,000, and a second violation maximum is $150,000.¹  However, under state law, like in California under the Unruh Act, a successful plaintiff is entitled to three times the actual damages with a minimum of $4,000 per incident.

These lawsuits are more common now that ADA non-compliant businesses are easily identified using a web search. Your health care practice does not have to be personally visited to establish an ADA violation, making potential ADA violators easy and cheap to find.

What Is an ADA Website Violation?

Accessible website content must meet four principles: perceivable, operable, understandable and robust. Programming and software accessibility tools may be installed by users, on a website or both. This means the user experience when visiting a website should be largely equal for all visitors with or without a disability. Gaps in the user experience may constitute an ADA violation.

Who Needs Website Accessibility?

People with impaired vision and/or who identify as deaf or hearing impaired number nearly 15 million in the U.S. So, magnification, brightness settings, transcriptions and captions are necessary for these individuals. People with cognitive and learning difficulties, whether age related or developmental, have challenges recalling or processing large amounts of information, so uncomplicated web page layouts, and removal of animation and automated videos, is helpful.

Those experiencing emotional, behavioral disabilities or temporary anxiety benefit from changes to page layouts, sentence structure, white space and more to help users perceive information and stay on tasks. People with brain injuries and neurological diseases who are unable to manage a mouse, pointer or touch screen to navigate require audible software and keyboard tab navigation to access the web and websites.

What are the Website Accessibility Technical Requirements?

ADA enforcement and compliance is under the authority of the U.S. Department of Justice (DOJ), Civil Rights Division. The DOJ announced plans to propose web accessibility regulations in 2010, but withdrew those plans in December 2017. The DOJ also stated that in the absence of specific web-accessibility regulations, public accommodations can be flexible in how these comply with the ADA's general nondiscrimination and effective communication requirements.²

The courts have ruled in a number of website accessibility cases across the country, declaring that the current technical standard for ADA website accessibility is WCAG 2.1 AA or better. Experts agree this standard affords maximum accessibility while being attainable.

WCAG stands for the Web Content Accessibility Guidelines. These guidelines are published by the World Wide Web Consortium (W3C) under its Web Accessibility Initiative (WAI). The W3C publishes standards to make the web operate more uniformly for everyone. WCAG 2.1 AA is the current standard. It identifies 50 "success criteria," which are separate technical adjustments that make websites more inclusive and accessible. There are several options to consider when choosing ADA website accessibility programming or software for your practice.

The Yin and Yang of it…

There are competing opinions about how best to implement ADA website accessibility programming, software and tools. The two basic approaches include a website review, audit and modification performed either manually or automatically (scan).

• Website developers and programmers advocate the manual approach whereby the website code and plugins are reviewed line-by-line. Specialized accessibility programming code is written into a website based on the specifics of an individual site. Cost: $5,000-$15,000 (plus $50-$70 monthly for web-scanning tools).
• Website scanning technology is used to identify a website's ADA accessibility vulnerabilities; then an "overlay" (monitoring program) is installed to provide accessibility tools to support a user's online experience. Cost: $50-$70 monthly.

Website developers and programmers claim the "scan and overlay" approach is too simple and fails to achieve true accessibility for users with a disability. They advocate hand-coding the website. It is far more expensive and employs programmers. Of course, "scan and overlay" providers counter that the best line-by-line hand-coding is still subject to user failure, obsolescence, and an ADA violation, whether you spend $50 or $10,000.

The truth is that both options provide improved ADA accessibility, yet neither guarantees permanent compliance, because the technology is always changing and needs updating.

The right choice often depends on where a business or health care provider is in the development of their website. If you are in the process of building a site, then configuring WCAG 2.1 AA accessibility into the design might be a reasonable option, whereas tearing a website down and rebuilding from scratch is likely an unreasonable burden.

The courts have not tolerated excuses of ignorance or inaction from businesses when deciding discrimination cases based on a lack of "access" via public websites. Providers should be following the law at all times, and take ethical, proactive steps to ensure equal access to care, services, and products for all prospective and active patients, whether visiting the office in-person or online.

What to Do Next

Practitioners should likely contact a company to help install and test accessibility software for their website. Be prepared to pay a subscription service fee (approx. $49 month) to download website accessibility software that has to be monitored and updated for any website programming changes or new ADA requirements.

At least a dozen companies can be found online that develop or resell website accessibility software. Choosing a free plugin will not meet your compliance needs, so I do not recommend that route.

If you think you can install and manage accessibility software on your own website, then review the vendors found online and choose a company that works best for you. If you do not feel comfortable doing this yourself, then find a company that will install and update your website accessibility remotely.

Each practitioner will have slightly different needs based on their computer programming experience and technical support resources. The more you can manage, the less support you need, and vice versa. Find a vendor that understands your industry and your particular needs.

References

1. Civil Monetary Penalties Inflation Adjustment Under Title III. United States Department of Justice, Civil Rights Division.
2. Robert A. "ADA Questions Remain Over Web Accessibility Cases and the Lack of DOJ Regulations." ABA Journal, July 1, 2019.

David Bibbey is the president of the Florida State Oriental Medical Association (FSOMA) and the CEO of Patient Data Protection, LLC, a HIPAA and ADA compliance company specializing in supporting small practices and sole providers with HIPAA Privacy & Security Rule technologies and ADA website accessibility. You can contact David with questions and comments: Tel: 352-268-5088, ext. 4; Web:www.patientdataprotection.com.