An Access Problem?



ADA Website Compliance an Evolving Issue for Physicians to Consider

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Law Feature — June 2017 

Tex Med. 2017;113(6):57-62.

By Joey Berlin
Associate Editor

Medical practices in Texas may be able to breathe a little easier about their websites for now.

A U.S. district court in San Antonio has dismissed one lawsuit by an Austin attorney who alleged in demand letters that a number of practice websites weren't compliant with the Americans with Disabilities Act (ADA). On the way to that court decision, attorney Omar Weaver Rosales sued hundreds of other businesses. And according to a court order, an Austin judge sanctioned him for his conduct toward his legal opponent in some of those suits, longtime Austin civil rights attorney Jim Harrington.

"I'm a big proponent of the ADA," Mr. Harrington said, "and I've been involved in maybe 450 cases altogether, but we would never do anything like this."

Mr. Rosales says he's no longer making an "ADA enforcement push" with regard to websites. Still, his actions toward medical practices highlight an undefined hole in ADA regulations. First passed in 1990, the ADA and its accompanying rules don't specifically address website accessibility, but the U.S. Department of Justice (DOJ) says it has "consistently interpreted" the ADA as covering websites. That interpretation gives attorneys some latitude to argue that certain websites don't accommodate the visually impaired and other people with disabilities. And legal precedents on the issue vary by state. Washington, DC, attorney Frank C. Morris calls it "a developing area of the law."

"There are no specific regulations yet on this," Mr. Harrington said. "The way it sort of has worked out right now … is, there's a differentiation between informative websites and then websites that you do commerce on, like Amazon, for example, or any of those kinds of store-purchasing things. But even then, it's really up in the air."

The Department of Justice has said it intends to propose rules on website accessibility "in the near future." But in the absence of further guidance from the feds, Texas physicians can take steps to make sure their websites comply with the ADA and don't attract lawsuits. San Antonio rheumatologist Chelsea Clinton, MD, chair of the Texas Medical Association's Council on Practice Management Services, says it's a good idea simply to compare your own website with those of other practices.

"The advice that I would recommend to other physicians is, imagine that your patients or website viewers are visually impaired," she said. "Would they have more difficulty reading the information on your website than they would as a patient on comparable websites?"

Lawsuits by the Hundreds

According to a report by KXAN-TV in Austin, Mr. Rosales represented one client in more than 300 lawsuits for various alleged ADA violations against businesses, including parking lot infractions, improper signage, and door thresholds. He would offer to settle cases for amounts in the low thousands, generally less than the cost of litigating, according to the report. Mr. Harrington got involved in defending some of the targets of the suits.

According to a U.S. district court order last December, Mr. Rosales' conduct in six cases earned him more than $175,000 in sanctions.

"From his baseless and offensive attacks on opposing counsel, memorialized in over a hundred court filings, to his fabrication of an e-mail submitted as evidence to the court, Rosales has behaved in embarrassing and shocking ways throughout this litigation," U.S. Magistrate Judge Mark Lane wrote in the order. 

Mr. Rosales said in April he thinks those hundreds of lawsuits were necessary for ADA enforcement because "the ADA has been around for 30 years, and yet we're still fighting for basic access." He said the sanction order was improper and was on appeal.

Shortly after the judge issued those sanctions last December, news emerged that Mr. Rosales had also begun targeting health care websites. According to KXAN, he sent letters to practices demanding payments of $2,000, or else he would sue the practice for ADA website violations.

TMA obtained a demand letter Mr. Rosales sent to a medical clinic enclosed with an unfiled lawsuit and an analysis of the clinic website's ADA compliance. His demand letter told the clinic, "Your website failed." Citing "new requirements of the ADA" and the Web Accessibility Initiative's Web Content Accessibility Guidelines (WCAG 2.0), the letter added, "Since your website does not comply with Federal law, you must immediately self-report to the Department of Health and Human Services (DHHS) and forfeit any Federal funds received until you have completed recertification." Mr. Rosales' unfiled lawsuit, which lists himself as the plaintiff, describes him as a "Disabled Veteran with mobility impairments and limited use of his hands."

Mr. Harrington, who had retired in 2015 from the Texas Civil Rights Project, announced to KXAN that he had created the Texas ADA Defense Project to combat Mr. Rosales' litigation threats. In the release announcing the project, Mr. Harrington called Mr. Rosales' actions "about as close to a shakedown as you can get" and "a perverted use of the ADA."

"I got involved because I don't want anybody abusing the ADA," Mr. Harrington said. "What's going to happen is that Congress ends up amending it when you have this kind of nonsense going on."

Vague Regs and a "Niche Business"

Mr. Rosales is hardly the only attorney who's made an issue over website accessibility. In fact, Mr. Morris, an attorney for the national firm Epstein Becker Green, says the practice of law firms targeting establishments for ADA noncompliance has become a "niche business."

"One in Pittsburgh has sent out, I think, over 1,000 demand letters, and there are some other people in Florida and elsewhere who have tried to jump on this sort of unholy bandwagon," he said. These firms were "taking the laudable goals of the ADA and just really perverting them for a financial interest," he added.

Title III of the ADA requires that individuals with a disability be offered "the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations" of a private entity's "place of public accommodation." Laws and regulations specifically applying that standard to websites don't exist. But in information accompanying revisions to ADA rules last year, the Department of Justice said it has "consistently interpreted the ADA to cover websites that are operated by public accommodations and stated that such sites must provide their services in an accessible manner … 24 hours a day, seven days a week."

The government cited the WCAG as part of its guidance for accessibility. WCAG 2.0, the most recent version, is a set of 12 guidelines for accessibility that fall under four principles: perceivable, operable, understandable, and robust. The guidelines within those principles include protocols for such aspects as keyboard accessibility, navigability, readability, and not causing seizures. (See "Accessibility Guidelines.")

The Department of Justice, disability advocacy groups, and individual plaintiffs all have had some success suing for ADA website compliance claims, Mr. Morris says. While the WCAG 2.0 are officially just guidelines, Mr. Morris says in Justice Department settlements that involve website accessibility, the government has required entities to come into compliance with WCAG 2.0 over some period of time, making the guidelines de facto standards.

He says the ADA doesn't award damages in private lawsuits, but nondiscrimination statutes in some states, such as California and New York, do allow for monetary damages. It's not clear whether Texas law allows for an individual to advance a web accessibility suit and win a monetary award.

High-profile companies have been the target of some online accessibility lawsuits. In 2006, the National Federation of the Blind (NFB) sued department store giant Target. The previous year, NFB had notified Target its website wasn't accessible to visually impaired and blind users, according to the Web Accessibility Initiative. Key issues NFB cited included a lack of alternative text, an inability to complete online purchases without using a mouse, and missing headings important to site navigation. Target ultimately settled the suit in 2008, with terms that included agreeing to modify its site to full accessibility and paying class damages of $6 million.

The lack of legal and regulatory clarity on website accessibility makes it difficult for website designers. Tom Daniel of Officite, a TMA-endorsed vendor that offers website and internet marketing services, says the company incorporates as much of the ADA regulations and laws into its web design work as it can. (See "Website Help From Officite.") Similarly, Officite will try to fix an ADA compliance issue to the best of its ability if a client approaches the company about such an issue.

Officite recommends that its clients seek advice from legal counsel for help interpreting ADA laws.

A Suit Dismissed

In February, U.S. District Court Judge Orlando L. Garcia threw out Mr. Rosales' suit against Concentra Operating Corp. in San Antonio, which Mr. Rosales had filed on Oct. 27, 2016. According to the judge's order, Mr. Rosales alleged Concentra had denied him and "others similarly situated from 'navigating and utilizing the information on Defendant's website about the goods, services, facilities, privileges, advantages, and accommodations at Defendant's business.'"

Concentra argued Mr. Rosales hadn't shown his "alleged disability affected his ability to use the site or caused Plaintiff any harm, injury or damage," according to the order. 

Judge Garcia found that Mr. Rosales had "not demonstrated if and how his disabilities prevented him from using Defendant's website" and that it was unclear that any issues Mr. Rosales encountered with the website were related to his specific disabilities. Also, he wrote, Mr. Rosales had shown no plan to return to the website.

The judge wrote that Mr. Rosales needed to show a "significant possibility of future harm." To analyze whether that potential harm existed, the court used a four-factor test to determine whether Mr. Rosales had the intent to seek Concentra's services. The court found he failed to meet all four factors: 

  • Proximity: Mr. Rosales lived more than 60 miles from the Concentra facility, the court said, outside the 50-mile limit some courts had previously applied in similar cases.
  • Past patronage: Judge Garcia wrote that Mr. Rosales did not contest Concentra's contention that he had never sought its services in the past.
  • A "definitive plan" to seek services: The court found Mr. Rosales hadn't indicated he intended to seek Concentra's services.
  • Frequency of nearby travel: Mr. Rosales did not indicate he was a frequent visitor to San Antonio or that he often travels near the Concentra clinic, according to the court. 

Mr. Rosales told Texas Medicine in April that he was no longer pursuing ADA enforcement regarding websites because "a lot of things are still up in the air," including administrative rules with the switch in presidential administrations. He doesn't regret filing the Concentra suit, he says, because it resulted in "new case law," including the 50-mile limit.

"It's a good practice, I think, to be compliant," he said. "But there's still some gray area as to how far the DOJ is going to go in its compliance efforts. So just for us, I decided there's a lot of gray area, it's not cut-and-dry, and I just decided … to not continue it.

"I like physicians. I don't have any qualms or problems with physicians at all. I have close friends who are physicians. I felt it was better to just let it go."

Protect Yourself: Develop a Plan

While it remains unclear whether individual ADA litigation for websites should be a source of anxiety for Texas physicians, Mr. Morris says simply having a plan in place can go a long way. Physicians can analyze their own site and engage with their web design vendor to make sure accessibility is an element that gets attention in the design and maintenance of the site.

He says if you have an accessibility plan prepared, and someone files suit or sends a demand letter, "then you're in a pretty good position to say that … they're not a catalyst for your taking any action ― that you already simply had made the decision that you were going to enhance the accessibility of the … website, and therefore, that the lawsuit should be either dismissed or simply stayed, pending your completing the remediation plan."

Physician practices and other businesses can also use online accessibility testing sites such as the Web Accessibility Evaluation Tool. Users can enter in any URL and receive an analysis of whether the site is compliant based on the tool's interpretation of the ADA. 

On the other hand, those online website checkers are a reason why Mr. Morris says physicians should be "reasonably worried" about the threat of an ADA lawsuit. Any online user can analyze a website with them.

"They're not entirely accurate, and they come out with false positives and false negatives," he said. "But it's very simple and easy."

Mr. Harrington says he's "telling people not to worry about" ADA website issues, and he doesn't foresee other attorneys following Mr. Rosales' lead.

"No, because the law's not favorable at all on this point, number one, in terms of defining accessibility," he said. "But it's also not favorable in terms of standing. You can't just surf the web looking for inaccessible sites and then file lawsuits. That's not going to fly in court; there's no chance on Earth that's going to happen."

Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.

Legal articles in Texas Medicine are intended to help physicians understand the law by providing legal information on selected topics. These articles are published with the understanding that TMA is not engaged in providing legal advice. When dealing with specific legal matters, readers should seek assistance from their attorneys.

Modified May 30, 2017.

 SIDEBAR

Accessibility Guidelines

The Web Accessibility Initiative's Web Content Accessibility Guidelines (WCAG 2.0) are one of the sets of standards the federal government recommends for making websites accessible under the Americans with Disabilities Act. WCAG 2.0 includes four principles ― perceivable, operable, understandable, and robust ― and various guidelines grouped within those principles. Some of these are shown here. 

Perceivable  

  • Provide text alternatives for any non-text content so it can be changed into other forms people need, such as braille or speech.
  • Make it easier for users to see and hear content, including separating foreground from background. 

Operable

  • Make all functionality available from a keyboard.
  • Do not design content in a way known to cause seizures. 

Understandable  

  • Make pages appear and operate in predictable ways.
  • Help users avoid and correct mistakes. 

Robust  

  • Maximize compatibility with current and future user agents, including assistive technologies.

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SIDEBAR

Website Help From Officite

Officite, a TMA-endorsed vendor, offers website and internet marketing services for health care practices. For more than a decade, Officite has helped physicians build their web presence and connect with patients. Officite's services include website design, search engine optimization, pay-per-click advertising, social networking, and patient review management. Officite's menu of services aims to help physicians attract, connect, and communicate with new patients on the internet. For more information or to learn more about discounted TMA-member pricing and packages, visit the Officite website or call (888) 817-4010.

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