The Americans with Disabilities Act (“ADA”) was passed in 1990 to prohibit discrimination against individuals with disabilities. The ADA has historically applied in “places of public accommodation,” or businesses that are open to the public, such as restaurants, schools, movie theaters, and doctors’ offices, as well as certain private entities that meet established criteria. The ADA has also historically required brick-and-mortar businesses to accommodate disabled individuals to allow equal access to those businesses’ services, goods, and facilities, such as widening the aisles for wheelchairs or providing auxiliary aids. However, the emergence of e-commerce over the last two decades has presented a new question in the context of the ADA: Are websites places of public accommodation?
Federal courts have begun answering that question in the affirmative. One example is a Florida District Court holding that a grocery store chain selling goods through its website and brick-and-mortar locations violated the ADA when it failed to make the appropriate accommodations on its website for visually impaired individuals. As a result, the grocery store was required to pay the individual's attorney fees and modify its website to be ADA compliant.
While claims in this area have typically involved websites for businesses with both websites and a physical presence, such as Home Depot, Winn-Dixie, and Target, ADA website cases and demands have begun to reach the health care field as well. In late 2016, Tenet Healthcare, which operates hospitals located in Florida, was named in an ADA violation class action on behalf of individuals with visual impairments alleging that the hospitals’ websites were not accessible due to their lack of screen-reader technology. Another example is the benefits company WellPoint, which entered into a public accessibility agreement that required modifications to its website and apps to comply with ADA accessibility standards. Other Health care facilities in Texas and Florida have also faced demands from plaintiffs’ attorneys in recent years for ADA claims implicating the facilities’ websites.
The proliferation of cases and demands implicating the health care industry is especially problematic due to the lack of guidance on what it means to have an ADA-compliant website. The ADA is enforced by the United States Department of Justice (“DOJ”), which for years had planned to promulgate regulations that businesses could use as a guidepost to ensure their websites were accessible to individuals with disabilities. However, in December of last year, the DOJ announced that it was officially halting efforts to create such guidelines but would continue to assess whether specific standards were appropriate to assist businesses with ADA compliance on websites. Accordingly, there are currently no federal standards for website compliance, which leaves health care entities in the dark when trying to accommodate disabled individuals while avoiding the barrage of lawsuits and demands.
In various court filings and settlement agreements, courts and the DOJ have indicated that the Web Content Accessibility Guidelines ("WCAG") published by the Web Accessibility Initiative of the World Wide Web Consortium provide sufficient measures for an ADA-accessible website. The WCAG are web accessibility guidelines that contain a number of recommendations aimed at making web content more accessible to individuals with disabilities. Several iterations of the WCAG have been published since their initial creation in 1999, including version 2.0 published in 2008 and supplement by version 2.1 in June 2018.
WCAG 2.0 has 12 guidelines that are organized under four principles: perceivable, operable, understandable, and robust. For each guideline, there are certain criteria to be met, organized into three levels: A, AA, and AAA. The DOJ's guidance indicates that WCAG 2.0 Level AA is likely sufficient for most websites.
To comply with the ADA and implement WCAG 2.0, Website developers should take all disabilities that patients who are viewing a practice's website might have, such as visual, auditory, physical, speech, cognitive, language, learning, and neurological impairments. Common examples of adjustments made pursuant to WCAG 2.0 include:
With health care advice available at the click of a mouse, patients often utilize online resources to look for information about providers, research symptoms, or seek treatment. Given that nearly 1 in 5 people in the United States are estimated to have a disability, and given that these individuals are more likely to utilize healthcare services than other populations, it is vital that these individuals are able to equally access websites of health care organizations and practices. As part of their internal privacy, security, and technology procedures, health care providers should work with their website developers to achieve WCAG 2.0 compliance, in order to reduce the risk of claims related to inaccessibility and to ensure that all individuals, including those with disabilities, to obtain the care and resources they need.
 WCAG 2.1 was published in June of this year, but it does not supersede WCAG 2.0.