Legal consequences abound at every corner in healthcare. Each month this blog discusses examples of what those consequences can be.
It is common for healthcare providers and business associates to have websites—which may be covered by the Americans with Disabilities Act (ADA) or analogous state laws. If so, and if a particular website is not accessible (reasonably usable) by a person with a disability, then liability can attach to the provider or associate. As the Civil Rights Division of the US Department of Justice explains:
Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards.
The ADA was enacted into law in 1991, well before websites became a common feature of everyday life and commerce. Nevertheless, civil actions have been brought against various business entities for, among other things, maintaining websites that are inaccessible to visually impaired individuals. Unfortunately, there are no universally recognized standards of accessibility for these individuals. In 2010, the Obama administration had proposed to promulgate regulations that would have addressed the obligation of places of public accommodation to make websites accessible to persons with disabilities. In December of 2017, the Civil Rights Division published a notice of withdrawal of the proposed rulemaking “for further review.” Despite the lack of promulgated standards, these civil actions are not going away. And that begs the question: which standard of accessibility of a place of public accommodation might be applicable to, among other places, that of a healthcare provider.
The World Wide Web Consortium (W3C) is a private organization that develops “technical specifications and guidelines” that are intended to “lead the Web to its full potential.” Among other things, the W3C issued the Web Content Accessibility Guidelines (WCAG) Level 2.0. The guidelines have three levels of “success criteria” in increasing levels of accessibility. Courts have relied on these guidelines to impose standards—and liability—on businesses. For example, see the recent decision of Thurston v. Midvale Corporation, BC663214, decided in the Superior Court of California, County of Los Angeles, on May 21, 2018.
The plaintiff in Thurston was visually impaired. She brought an action against a restaurant that operated a website and alleged that the website was not accessible to her under Title III. After concluding that the restaurant was a place of public accommodation, the court found that the plaintiff encountered various barriers to the website that prevented her from using its features. In so doing, the court noted that the plaintiff did not attempt to hold the restaurant liable for violating the WCAG but simply referenced those guidelines in support of her contention that the website was not accessible. The court imposed a monetary award under California law and entered an injunction compelling the restaurant to “prospectively comply” with the WCAG, which, the court noted, was “often used by the DOJ in its consent decrees.”
What should a healthcare provider or business associate make of this? First, a healthcare organization might well be defined as a place of public accommodation under Title III. If so, and assuming the provider maintains a website, that website should be accessible to the visually impaired. The question then becomes how accessibility might be defined. The WCAG offers suggestions that may be looked to for answers. However, take note that a version 2.1 of the WCAG was issued on June 5, 2018, which expands the success criteria of version 2.0. Whether courts will look to that version of the guidelines as a set of de facto standards remains to be seen.
**Editor’s Note: The views expressed in this column are those of the author alone and should not be interpreted otherwise or as legal advice.