Is your website in compliance with the ADA?

Is your practice website accessible and compliant with the Americans with Disabilities Act (ADA), which prohibits discrimination due to disability?

“A little attention to your website now can potentially avoid big headaches down the road,” says AOA General Counsel Michael Stokes, J.D. “There are simple steps you can take that will improve the accessibility of your website. In a lot of cases, these steps can be accomplished by a knowledgeable web developer in an afternoon.”

In a Q&A, the general counsel explains where the law stands on the ADA and closed captioning of medical content on websites and television—and how doctors can avoid liability including fines and attorneys’ fees.

What does the ADA do, and what does it have to do with the accessibility of a practice’s website?

Signed into law in 1990, the Americans with Disabilities Act prohibits places of public accommodation from discriminating against persons with disabilities.

Do websites or applications on the internet constitute a place of public accommodation?

Unfortunately, there is not a clear answer to this question. The ADA is silent on this issue because its date of passage occurred prior to widespread commercial use of the internet, so this issue is being addressed in the courts. Some courts have found that websites and applications on the internet constitute a place of public accommodation while others have not.

Where is this headed?

In 2020, a bill (The On-Line Accessibility Act H.R. 1100) was introduced in Congress to amend the ADA to specifically provide that websites and mobile applications are places of public accommodation. The bill “would require any consumer-facing website or mobile application to be in substantial compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level A and Level AA standard, or provide an alternative means of access for individuals with disabilities that is equivalent to what content is available on the website,” according to Law Practice Today, published by the American Bar Association’s law practice division. The bill would also require the person with a disability to provide notification to the website and an opportunity to correct the problem before suit could be filed. However, this bill was not passed.

Due to the split in the circuit courts, it is likely that this issue will be addressed eventually by the U.S. Supreme Court. The Department of Justice (DOJ), the agency responsible for enforcing the ADA, stated in a letter to Congress last year that the DOJ maintains its position that the internet is a place of public accommodation, but it has declined to use the web content accessibility guidelines as a legal standard in the absence of further regulation. DOJ also seemed to indicate that regulations in this area would not be forthcoming. Until either the DOJ issues regulations, the Supreme Court renders a decision to resolve the split between the various circuit courts or Congress passes the On-Line Accessibility Act or similar legislation, the question of whether a business can be sued will depend on its location.

What should doctors of optometry do if they receive a demand letter from a plaintiff’s lawyer?

Take the following steps:

• If the monetary damage is large, it makes sense to get a lawyer involved.
• Doctors may wish to contact their insurance broker to determine if coverage would be provided for potential liability in this instance.
• Check the accessibility of their website—free services such as WAVE^® will check website pages for accessibility issues. Some services offer a browser extension that doctors can add, allowing them to check pages on demand. This will alert them to problems with their website pages but further inquiry is needed when examining their video web content.
• Determine what content is inaccessible and how it can be fixed. Consider accessibility when viewing video content. Consult your IT designer for additional assistance.
• Make the necessary corrections to their website.
• Discuss with their lawyer whether to contact the letter writer immediately or wait to see if they file suit.
• Never admit to any liability, experts recommend. At this point, if the accessibility issues are corrected, doctors may wish to see if opposing counsel follows up with a subsequent letter.
• Consider that, arguably, doctors will be in a stronger position as they will have corrected any inaccessible material on their website.
• Decide that going forward all new content will be reviewed for accessibility.

Given the uncertainty in this area, a practical solution in this case may be to use services that offer auto captioning for hosting videos. For example, videos that are loaded to a dedicated YouTube channel and then embedded on a practice’s site, with YouTube’s closed-captioning option automatically included. Vimeo, another commercial site, also offers a service such as YouTube for video captioning. This is an inexpensive and reliable way to close caption videos and guard against liability due to individual or governmental complaints for failure to provide accessible videos placed on your business website. If using a vendor to create videos for a website, doctors should make sure that the topic of accessibility is addressed in the statement of work between a practice and its vendor.

Any other considerations regarding the ADA, accessible websites and practices?

Website accessibility involves more than just closed captioning. Additional elements that make a website accessible include:

• Providing text equivalents with images—these text equivalents can be read by website visitors who use screen-reader software.
• Posting documents in a form that can be read by screen readers.
• Allowing website fonts and colors to be manipulated by the user. This is important for users with low vision or color-vision deficiency.
• Designing website navigation so that it works smoothly with web-browser accessibility software, screen readers and other tools used by individuals with disabilities to help them navigate internet sites.