Is your dermatology practice's website ADA compliant?
Legally Speaking
Robert M. Portman, JD, MPP, is a health care attorney with Powers Pyles Sutter & Verville, in Washington, DC, and serves as legal counsel for the AAD and AADA.
By Christina L. Krysinski, JD, and Robert M. Portman, JD, September 2, 2019
The Americans with Disabilities Act of 1990 (ADA) is a comprehensive federal civil rights law designed to ensure equal access and protection for individuals with disabilities. Under the ADA, medical practices are considered public accommodations and are therefore required to ensure that their products and services are equally accessible to persons with qualified disabilities. While you may be familiar with the ADA’s requirements for construction of buildings or other physical accessibility standards, many practices are not aware that the ADA’s standards also apply to websites. This article covers your obligations to ensure that your practice’s website is accessible to individuals with disabilities.
Q: Why do I need to make changes to my office’s website to comply with the ADA?
A: Title III of the ADA prohibits discrimination on the basis of disability by doctors’ offices. Individuals with disabilities face significant barriers in accessing information online.
Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodation and guarantees people with disabilities the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Public accommodations include doctors’ offices, along with other private entities like restaurants, movie theaters, hotels, and retail stores. As a result, your practice’s office must comply with the ADA’s requirements.
Title III requires that a public accommodation make reasonable modifications in policies, practices, or procedures when needed to afford goods and services to people with disabilities, unless it can show that doing so would fundamentally alter the nature of the goods and services it provides. ADA regulations also require public accommodations to provide appropriate auxiliary aids and services — such as qualified sign language interpreters, qualified readers, or written materials in braille or larger type — where necessary to ensure effective communication with people with disabilities. “Effective communication” means communicating as effectively with a person with a disability as with a person without a disability. The level of assistance needed to do that will hinge on the type of activity involved.
However, the rules have limits. Public accommodations are not required to provide auxiliary aids or services where doing so would fundamentally alter the goods or services being provided or create an “undue burden,” such as significant difficulty or expense. These facilities are also not required to provide access to goods and services to a person with a disability who poses a direct threat to others’ health and safety, such as if the person has a contagious condition.
While the internet as we know it today did not exist when the ADA was enacted in 1990, several courts and the U.S. Department of Justice (DOJ) have interpreted the ADA’s accessibility requirements to apply to websites of public accommodations. Specifically, websites must be equally accessible to, and ensure effective communication with, persons with disabilities. Given that the internet is increasingly becoming a popular mode of communications among doctors and patients, it is essential that your practice ensure that its website is accessible to individuals with disabilities. For example, many individuals use the internet to obtain health care information or research physicians, access information from their physicians, or fill out forms.
Individuals with disabilities are often effectively denied access to certain services because many websites are incompatible with assistive technology, such as speech recognition software or screen readers. This sometimes occurs because website developers assume that everyone accesses websites in the same way and, therefore, fail to include design features that are compatible with assistive technologies. For example, screen readers for individuals who are blind often cannot read PDF documents, while alternative text-based formats (such as HTML or Rich Text Format) are more compatible with screen readers. As a result, it is critical that all website content (including text, images, sounds, videos, controls/navigation tools, and animation) are accessible, at least to the point where doing so does not impose an undue burden on the practice, particularly in terms of cost.
Q: How do I comply with the ADA’s accessibility requirements for websites?
A: There are no strict standards, but the WCAG are useful guidelines for ensuring website accessibility.
Unfortunately, there is no clear guidance available for establishing ADA compliance for websites. The safest way to comply with the ADA is to ensure that your website meets the applicable Web Content Accessibility Guidelines (WCAG), available at www.w3.org/WAI/standards-guidelines/wcag/. While meeting the WCAG standards is not explicitly required under the ADA (as there are other ways to provide persons with disabilities with equal access to a public accommodation’s website), these standards are a useful framework for making your website accessible. The WCAG standards include elements like providing text alternatives for non-text content, such as images or charts, as well as including text transcripts or captions for audio and video content. The standards also include guidelines for organizing web content in a way that allows users to easily navigate the website and find the content that they need.
As previously noted, cost is a factor in the ADA analysis in that public accommodations are not required to take steps to provide equally accessible goods and services if doing so would impose an undue burden on the entity. Complying with the WCAG standards can be very expensive and may take several months or years to achieve. Each practice will have to do its own cost-benefit analysis weighing the cost of achieving ADA-compliant accessibility with the risk of being sued for violating the ADA.
At a minimum, you should consider things like:
- Adding text equivalents to every image
- Posting documents in text-based formats
- Structuring your website to allow users to alter the color and font size through their web browser
- Captions on any videos
Your website should include an accessibility statement that provides an alternate method of communicating with your practice via email or phone in order for patients or others to request information in a compatible format. You should also train at least one staff person to be able to respond to and address any accessibility concerns.
In addition to your website, you should also consider whether any mobile applications that your practice uses are accessible for individuals with disabilities. There are digital accessibility experts that you can hire to perform a website audit or review mobile applications and recommend appropriate improvements; however, these services can be costly. For a lower cost option, accessibility evaluation tools may also be available online, but these tools may not provide accurate results.
Q: What do I do if I receive a complaint or a demand letter about my website’s accessibility or ADA compliance?
A: Take the complaint or demand letter seriously and consult with an attorney.
There is a cottage industry of attorneys seeking to sue practices for non-compliant websites. As a result, lawsuits based on non-compliant websites of public accommodations have increased in recent years. For example, in 2017, there were over 800 lawsuits filed in federal court against businesses (including, but not limited to, physicians’ offices) alleging that the business was a public accommodation with an inaccessible website. Most of these lawsuits were in New York and Florida, but the risk of a lawsuit exists for physician’s offices all over the country. Many lawsuits have also been filed in state courts.
In addition to private lawsuits, individuals can file complaints with the DOJ alleging disability discrimination by a public accommodation. After receiving a complaint, the DOJ may refer the complaint for possible resolution through the ADA Mediation Program or to a United States Attorney’s Office in your area for investigation. The DOJ may also refer the complaint to another federal agency, undertake its own investigation, or consider the complaint for possible litigation.
In the event that you are contacted with concerns about your website’s accessibility or a demand letter, we recommend taking the complaint or demand letter seriously and speaking with an attorney with ADA expertise as quickly as possible. You might consider making changes to your website in response to a complaint or demand letter, but you should first speak with an attorney. While lawsuits based on an allegedly non-accessible website have had varying success, the ultimate risk to your practice will depend on the specific facts and circumstances in light of the lack of clear guidance from the courts or federal government in this area.
