Predictability is good for business entities—including healthcare providers and their business associates—especially when the consequence of unpredictability can be litigation. However, predictability is somewhat uncertain today in the area of electronic information, specifically, about whether a healthcare provider can be sued under the Americans with Disabilities Act (ADA) for having a website deemed to be inaccessible for a person with a disability.
A previous Journal of AHIMA article from 2018, explored the issue of website accessibility. Since that article was published, the US Court of Appeals for the Ninth Circuit addressed the question of whether an individual could sue a business for its alleged failure to have a “fully accessible” website in Robles v. Domino’s Pizza, LLC, No. 17-55504 (9th Cir. Jan. 15, 2019). The Ninth Circuit determined that yes, an individual could sue a business for this reason, creating a split between the federal courts of appeals with the decision.
The plaintiff in Robles is blind. He alleged in a complaint that the defendant “failed to design, construct, maintain, and operate its website and mobile application to be fully accessible to him.” The district court dismissed the complaint, concluding that, although the ADA applied to the defendant’s website and app, the failure of the Department of Justice to develop “meaningful guidance” would result in a due process violation if certain standards were imposed on the defendant through litigation.
The Ninth Circuit reversed. It agreed with the district court that the ADA applied to the website and app. The Ninth Circuit held that the defendant was a “place of public accommodation” under the ADA and that there was a sufficient “nexus” (or connection) between the defendant’s website and app and its physical restaurants for the ADA to be applicable. The Ninth Circuit parted company from the district court, however, on the latter’s holding that it would be fundamentally unfair (and hence a due process violation) to apply the ADA to the defendant because, absent guidance from the United States Department of Justice (DOJ), the ADA was unconstitutionally vague.
The Robles court held that the defendant had “received fair notice that its website and app must comply with the ADA” because that statute articulated “comprehensible standards to which Domino’s conduct must conform.” The Ninth Circuit also rejected the district court’s reliance on the “primary jurisdiction doctrine” as a basis to dismiss the complaint. That doctrine allows a court to stay or dismiss a proceeding pending resolution of an “issue within the special competence of an administrative agency.” The Ninth Circuit concluded that the district court was competent to decide the application of the ADA to the website and app and that deference to the DOJ would unduly delay resolution of the dispute between the parties.
How does this lead to uncertainty? The defendant in filed a petition for certiorari with the United States Supreme Court. If the petition had been granted, the Supreme Court would have reviewed the Ninth Circuit’s decision and might have rendered a definitive ruling on the applicability of the ADA to websites and apps and on the need for DOJ guidance to implement ADA compliance for websites and apps. However, on October 7, 2019, the Supreme Court denied the petition. Absent that definitive interpretation, the United States courts of appeals are split on the interpretation of the ADA. The First, Second, and Seventh courts of appeals have held that there is no need for a nexus between a website and a physical location of a business. In other words, a “standalone” website can be a “place of public accommodation.” The Third, Sixth, Ninth, and Eleventh appear to have adopted the nexus test. In other words, where a business entity is located can lead to a different result if it is sued over an allegedly inaccessible website or app.
What does this mean for healthcare providers? First, location counts—both because a civil action can be presumably brought where a healthcare provider physically “resides” and where its website or app reaches (for example, across state lines). This leads to questions of whether personal jurisdiction to sue the healthcare provider exists in a particular state (or in a United States district court within a particular state) and whether the healthcare provider might avoid any accessibility challenges to its website or app by compliance with existing nongovernmental accessibility standards.
**Editor’s note: The views expressed in this column are those of the author alone and should not be interpreted otherwise or as advice.