ADA issues for dermatology practice websites

By Ben Tesdahl, JD, LLM, and Rob Portman, JD, MPP, May 1, 2024

Every month, DermWorld covers legal issues in “Legally Speaking.” This month’s authors are health care attorneys with Powers Pyles Sutter & Verville PC in Washington, D.C. Portman is also outside general counsel for the AAD and AADA.

Many dermatology practices have questions regarding how the Americans with Disabilities Act (ADA) applies to their practice websites, as website accessibility continues to be an area of government scrutiny and litigation. The following is the latest information on this evolving area.

Background

The ADA is a federal civil rights law that prohibits discrimination against individuals with disabilities in everyday activities, including the receipt of medical services. Section 504 of the Rehabilitation Act of 1973 is a civil rights law that also prohibits discrimination against individuals with disabilities on the basis of their disability in programs or activities that receive federal financial assistance, including health programs and services. Although this article will focus only on the ADA, both statutes have similar requirements for physicians — including medical practices — to provide services to and communications with persons with disabilities in an equally accessible and effective manner.

The ADA requires medical practices to provide persons with disabilities equal access to medical care services and the facilities where the services are provided. Medical offices are covered by Title III of the ADA as places of public accommodation. As an indication that ADA guidelines need to be flexible and that there is sometimes no hard and fast answer to a particular situation, the U.S. Department of Justice (DOJ) has noted the following:

“The right solution or solutions for providing accessible medical care depends on existing equipment, the space available both within the examination room and for storage of equipment, the size of the practice and staff, and the patient population. What is important is that a person with a disability receives medical services equal to those received by a person without a disability.”

Notably, ADA compliance is not required if it would impose an “undue burden” on the physician. However, determining whether ADA compliance constitutes an undue burden is very complex, and opinions may differ. Under federal law, “undue burden” means significant difficulty or expense, and that determination is made by weighing several factors.

ADA regulations specifically regarding physical accessibility state that various factors should be considered, including the nature and cost of the action, the overall financial resources of the site, the geographic separateness and the administrative or fiscal relationship of the site or sites in question to a parent corporation, the overall financial resources of the parent corporation, and the type of operation or operations of any parent corporation or entity.

Similar balancing tests apply to physician websites, although determining whether a website is accessible to people with disabilities is not easy, as discussed below.

If a dermatology practice’s website must be ADA accessible, what does that mean in practical terms?

While most physicians understand that their physical facilities must be accessible to individuals with disabilities, they often do not realize that their websites are considered a gateway to their facilities and therefore must also comply with the ADA (unless doing so would pose an undue burden).

Website accessibility is often overlooked as there are not any government regulations detailing exactly what constitutes an accessible website for businesses in the private sector just yet. However, the DOJ has issued guidance and numerous consent decrees confirming the department’s position that websites, including those owned by medical practices, must be ADA accessible.

The DOJ’s latest guidance on ADA website compliance was issued March 18, 2022, although it does not provide much that is new. However, the DOJ did emphasize some common website access barriers for people with disabilities that should be avoided. These include:

• Poor color contrast

• Lack of text alternatives for images

• A lack of captions for videos

• Inaccessible online forms

• Lack of keyboard navigation

Although not yet officially adopted by the government as an ADA standard, the DOJ does recommend adhering to the Bureau of Internet Accessibility’s Web Content Accessibility Guidelines (WCAG). The WCAG is often updated to keep pace with evolving technology, meaning several versions have been published. Each version builds upon the previous version, with new standards added. Consequently, if a health care entity conforms to the most recent version of the standards, it is also in conformance with the previous ones. The most recent version, WCAG 2.2, was published in October 2023. Working toward conformance with applicable standards in that version, when possible, is recommended.

While a full discussion of WCAG standards is beyond the scope of this article, the standards encourage companies to have websites that provide:

• Text alternatives to non-text content

• Captions and alternatives for multimedia

• Content that can be presented in different ways including with assistive technologies

• All functionality accessible from a keyboard

• Maximized capability with current and future user tools, such as screen-readers

Each version of WCAG has several guidelines that are organized under four principles: perceivable, operable, understandable, and robustness. For each guideline, there are testable success criteria, rated on three levels: A, AA, and AAA. It appears that level AA is a standard that DOJ would consider reasonable. In fact, in one of the very first website accessibility cases to go to a full trial, the court ordered the Winn-Dixie grocery store chain to conform its website to WCAG 2.0 (the WCAG version in effect at that time) and at level AA. More recently in November 2021, a settlement agreement between DOJ and Rite Aid pharmacy required Rite Aid to have its website conform to the newer WCAG 2.1 and again at level AA.

Proposed new regulations for state and local governments

In August 2023, the DOJ issued a Notice of Proposed Rulemaking (NPRM) that would make WCAG the standard for compliance for state and local governments. While these proposed rules would not apply to private businesses, they may be a harbinger of eventual future rules for private businesses and are therefore worth reviewing.

If the proposed rules become finalized, state and local governments would have 2-3 years to comply with the new rules based on their population. Notably, the proposed rules would apply to both websites and mobile apps. The new rules would make WCAG 2.1 the applicable standard at levels A and AA, but not AAA. The DOJ also noted in the proposed rules that it realizes that perfect compliance with any standard is not possible, although the level of compliance the DOJ would accept is not clear, and the agency is seeking public comment on that issue.

Interestingly, the proposed rules strongly discourage creating an entirely separate website at a different address that would provide accessibility only to people with disabilities. Instead, one website accessible by everyone is the preferred approach.

The proposed rules also contain some limited common-sense exceptions for website accessibility. The exceptions where full accessibility is not required would include archived content, pre-existing documents, content posted by third parties, and links to third-party websites.

State attempts to mandate website accessibility

A lot of attention has been paid in recent months to California, where the Assembly re-drafted an existing bill, AB 1757, that would require all public businesses that own or operate a website to have that website comply with WCAG 2.1. The proposed law would provide statutory damages of $4,000 every time any person who is blind, low visioned, or cognitively disabled visited a company’s website or was deterred from visiting the website. The law also allows such persons to win their attorney’s fees if they bring a lawsuit. The proposed law would apply to both public businesses in the state and, for the first time ever, also to website developers who operate, maintain, and/or build websites for public accommodations. Commentators fear that laws such as AB 1757 would encourage a torrent of personal lawsuits that would be relatively easy for individuals to win.

What are the consequences of a dermatology practice website that is not ADA-compliant?

In addition to the risk of government fines for lack of website accessibility, there is a much bigger potential for a dermatology practice to become the subject of a private lawsuit filed by a disabled individual or disability rights organization. Indeed, there has been a spike in website accessibility lawsuits over the past few years. According to one source, plaintiffs in 2022 filed 3,255 website accessibility lawsuits in federal court alleging violations of the ADA — a 12% increase from the previous record of 2,895 lawsuits set in 2021. Notably, the foregoing figures do not include lawsuits filed in state court, so the total number of lawsuits in all courts throughout the U.S. is even higher. California and New York appear to be the jurisdictions with the most website accessibility lawsuits, and one source found that about two-thirds of all website accessibility lawsuits were brought by just five law firms located in California and New York. However, Florida and Pennsylvania have had many website accessibility lawsuits as well.

A handful of such suits were aimed at very large health care systems, and typically claimed that their website was not accessible by visually impaired persons using screen-readers. However, larger medical practices could also be a target of such lawsuits.

Notably, it has become very common for certain law firms to send “friendly” letters to website owners indicating that the owner’s website is not in compliance with WCAG standards and offering to assist the owner in coming into compliance for a specific fee. The letter will also say that if the owner declines, the firm will be prepared to take legal action against the owner. Medical practices that receive such letters should contact legal counsel with experience in this area before responding.

Conclusions

ADA website compliance for dermatologists is still an evolving and uncertain area. However, at the current time, hiring a web designer to create a website that complies with WCAG 2.1 at Level AA would be a prudent step — albeit potentially expensive, and possibly an undue burden for some physicians. Website development vendors and online bloggers cite wildly differing costs, but they often recommend an initial website audit to determine its ADA compliance, followed by additional costs to bring the website into full compliance with WCAG 2.1, and ongoing costs to conduct monthly accessibility monitoring thereafter.

Unfortunately, physician groups seeking to avoid ADA risk associated with their websites must navigate very broad legal guidelines and weigh multi-faceted concepts of reasonableness and undue burden that are often extremely fact-specific, and where even judges often disagree. Therefore, dermatologists seeking to avoid or minimize this risk should proceed with caution and seek legal guidance when in doubt.

This article is provided for informational and educational purposes and is not intended to provide legal advice and should not be relied upon as such. Readers should consult with their personal attorneys for legal advice regarding the subject matter of this article.

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