Search regulations

department-g7072af42e_1280
Department of Justice logo.

By Minh N. Vu and John Egan

Seyfarth Synopsis:  The DOJ issued final regulations under Title II of the ADA requiring state and local government websites and mobile apps to conform to WCAG 2.1 AA in two or three years, with few exceptions. 

Update: On April 24, 2024, the Final Rule was published in the Federal Register.  Under the now-finalized ADA Title II regulation, state and local governments with a population of 50,000 or more will have to comply with WCAG 2.1 AA by April 24, 2026; those covered entities with a population of less than 50,000 will have until April 26, 2027 to comply.    

The U.S. Department of Justice (DOJ) announced yesterday the issuance of a Final Rule which requires the websites and mobile apps of state and local governments to comply with the Web Content Accessibility Guidelines 2.1 Levels A and AA (“WCAG 2.1 AA”) in two or three years, depending on the number of people within their jurisdictions.  The Final Rule does contain some narrow exceptions to this requirement, but is overall quite stringent.  Case in point:  Even though the WCAG 2.1 AA allows for the use of a “conforming alternate version” of a website to provide access, the Final Rule limits the use of such conforming alternative versions to where it is not possible to make web content directly accessible due to technical or legal limitations.  In addition, the DOJ chose WCAG 2.1 AA even though the federal government only has to conform its websites, under Section 508 requirements, with the less demanding WCAG 2.0 AA.

There is quite a bit to unpack in the 320-page Final Rule so we will back later with more analysis and takeaways.  In the meantime, the DOJ did provide a helpful Fact Sheet which contains a summary of the major points.  As we have mentioned previously, this Final Rule is important because it will likely provide the roadmap for future DOJ regulations for public accommodations websites and mobile apps under Title III of the ADA.  If the Biden Administration gets a second term, we predict such a proposed rule will issue.

Edited by Kristina Launey

Website in Development
A laptop showing a website in development.

John W. Egan, Julia N. Sarnoff and Minh N. Vu

Seyfarth Synopsis: The W3C recently adopted Version 2.2 of the Web Content Accessibility Guidelines (WCAG) which adds nine new success criteria for digital accessibility.

On October 5, 2023, the Worldwide Web Consortium (W3C) issued Version 2.2 of the Web Content Accessibility Guidelines (WCAG).  Version 2.2 is the third iteration of the WCAG since 2008.  Version 2.0 (issued on December 11, 2008) consists of 61 “success criteria” for digital accessibility.  Version 2.1 (issued on June 5, 2018) added 17 success criteria to those that made up Version 2.0, for a total of 78.  Version 2.2 adds 9 new success criteria and removes one (i.e., Success Criterion 4.1.1 Parsing, Level A), for a total of 86 success criteria.  Thus far most experts agree that covered entities should focus on the success criteria designated as Levels A and AA, but that only reduces the number of success criteria to 55 in WCAG 2.2. 

The addition of even more success criteria to the W3C’s website accessibility guidelines is likely to cause frustration and confusion for businesses and state and local governments presently struggling to meet one of the earlier versions of WCAG.  A recent report to Congress found that many federal agencies required to comply with Levels A and AA success criteria of WCAG 2.0 (“WCAG 2.0 AA”) are not in conformance.  In fact, WCAG 2.0 AA is the only version of WCAG mandated by any federal law.  Those federal laws specify that federal agencies, providers of health care programs and services that receive federal financial assistance, and airline carriers must have websites that conform to WCAG 2.0 AA.  And in recent proposed regulations for state and local government websites, the Department of Justice (DOJ) proposed to adopt Levels A and AA success criteria of WCAG Version 2.1 (“WCAG 2.1 AA”) as the accessibility standard. 

What are these nine new success criteria?

  1. 2.4.11 Focus Not Obscured – Minimum (Level AA): This criterion benefits individuals with mobility or other disabilities who rely on a keyboard interface and need to be able to see on the screen where the keyboard is “focused”.  It requires that the focus indicator on a button or link (usually indicated by an outline around the button/link) not be entirely hidden by a pop-up or any other floating content on the page.
  2. 2.4.12 Focus Not Obscured – Enhanced (Level AAA):  This criterion is similar to its AA counterpart (2.4.11 above), except that the “enhanced” Level AAA version would require that the focus indicator on an interactive control be wholly unobscured by any pop-up or other floating content on the page.
  3. 2.4.13 Focus Appearance (Level AAA): This criterion, designed for individuals with disabilities who rely on a keyboard interface (including those with low vision), is a technical standard for what the focus indicator outline should look like. 
  4. 2.5.7 Dragging Movements (Level AA):  This criterion benefits individuals with manual dexterity disabilities.  It requires that for any action that involves dragging movements, the website must also provide a simpler alternative way to complete that action that does not require dragging movements.  There is an exception, however, for dragging functionality that is essential to a website.
  5. 2.5.8 Target Size – Minimum (Level AA):  This criterion benefits individuals with motor disabilities and provides a general minimum size for clickable elements on a webpage, such as links and buttons.
  6. 3.2.6 Consistent Help (Level A):  This criterion benefits screen reader users (who are typically blind or have other vision-related disabilities).  It requires that any help functionality provided on a website be located in the same place across all pages of the site, so that it is easy to find. 
  7. 3.3.7 Redundant Entry (Level A):  This criterion, designed to benefit those with cognitive or memory related disabilities, requires that any information previously entered by the user on a website that is required to be entered again in the same process be either (a) auto-populated on the website or (b) available for the user to select again.   
  8. 3.3.8 Accessible Authentication (Minimum) (Level AA):  This criterion benefits individuals with cognitive disabilities and prohibits websites from requiring users to complete cognitive function tests during the authentication process, subject to four exceptions. 
  9. 3.3.9 Accessible Authentication (Enhanced) (Level AAA):  This criterion is the same as its AA counterpart (3.3.8 above), except that it removes two out of the four exceptions to the rule against requiring cognitive function tests (no exceptions for “object recognition” and “personal content”).

Should businesses meet these new success criteria?  We think businesses should prioritize getting to and maintaining substantial conformance with WCAG 2.1 AA because WCAG 2.1 AA was just proposed for state and local government websites by the DOJ a few months ago, and all federal agency websites are only required by law to meet the less demanding WCAG 2.0 AA.  Plus, the W3C already has a working draft of WCAG 3.0 which the W3C describes as an entirely “new model” with “many differences” from WCAG 2.  In short, WCAG 2.2 could be outdated in a few years. 

The W3C’s changes to its website accessibility guidelines shines the light on the need for the DOJ to exercise its own judgment in determining which success criteria should be adopted as legal requirements applying to the websites of private businesses and state and local governments.  The process of making and maintaining an accessible website requires a substantial investment of both money and human capital.  Businesses and state/local governments should not have to deal with a moving target, especially one set by an entity that is not accountable to Congress or any Executive agency and has no statutory authority to issue any legal standards under the ADA. 

Canine Companion
Service dog guiding their human companion.

By: Kristina Launey and Minh Vu

Seyfarth Synopsis: The Sixth Circuit Court of Appeals approved state-owned hospital’s exclusion of nursing student’s service animal that posed a direct threat to patients and staff with severe allergies where no reasonable alternatives existed to mitigate the threat.

The Sixth Circuit Court of Appeals recently issued a decision in Bennett v. Hurley Med. Ctr. concerning the use of a service animal in a state-owned hospital under Title II of the ADA that provides useful guidance on how health care facilities should assess whether a service animal poses a direct threat to the health and safety of others. This decision is also relevant for private health care facilities because the direct threat analysis is the same under Title III of the ADA.

The plaintiff was a nursing student who worked at a hospital as part of her educational program for four hours once a week for six weeks. She has a panic disorder and her service dog was trained to recognize symptoms of a forthcoming panic attack so that she could immediately take her medications.  

The hospital at first approved the student’s request that her service dog accompany her on her rotation. However, on the very first day one staff member and one patient experienced allergic reactions to the dog. In response, the hospital revoked its approval of the service animal. The hospital offered the alternative accommodation of crating the service dog on a separate floor from those with allergies in the hospital and plaintiff taking necessary breaks to be with the service dog. The hospital had determined that relocating patients and staff with dog allergies from the floor where the plaintiff had to work (her university program supervisor was on that floor) would be unworkable and directly compromise patient care.

The court first held that the hospital had not engaged in intentional discrimination by refusing to allow the plaintiff to have her dog accompany her on rotations. The court concluded that the hospital’s decision was motivated by staff and patient complaints of allergic reactions to the dog – not the disability.

The court then considered whether the hospital had violated Title II of the ADA by not modifying its policy to accommodate the service dog on Plaintiff’s rotations. After reviewing the DOJ’s implementing regulations, DOJ guidance, and “scant” relevant case law to determine what constitutes reasonable accommodation of a service animal in a healthcare setting, the court concluded that “service animals are permitted as a reasonable accommodation unless they are ‘out of control,’ ‘not housebroken,’ would fundamentally alter the activities of the public entity, or, if, after conducting an individualized assessment of the animal, the public entity concludes that the service animal poses a direct threat.” The court then concluded that the service dog’s presence did constitute a direct threat because of the actual allergic reactions that took place and the lack of a workable alterative to mitigate that threat. Specifically, the court found that separating the service dog from allergic patients and staff was not possible.

While this decision provides helpful guidance to health care facilities on the issue of service animal access, it should not be viewed as license to exclude service animals from such facilities. The U.S. Department of Justice has taken the position that blanket exclusions of service animals from health care facilities are not permissible, consistent with the principle that exclusions based on the direct threat defense must be based on an individualized assessment of the circumstances presented. Here, there was concrete evidence of the direct threat and the hospital demonstrated that there was no way to mitigate it.

MV at SCOTUS
Minh Vu at the Supreme Court of the United States

By Minh N. Vu and John W. Egan

Seyfarth Synopsis:  SCOTUS asked revealing questions in yesterday’s Acheson v. Laufer oral argument, but left attendees wondering whether the Court will provide much-needed guidance on the so-called “tester standing” issue for which it granted certiorari.

The U.S. Supreme Court (SCOTUS) heard oral argument yesterday in a case arising under Title III of the Americans with Disabilities Act (ADA) for the first time in eighteen years to decide whether a “self-appointed [ADA] tester” has standing to challenge a place of public accommodation’s alleged failure to provide legally required disability accessibility information on its website, even if she has no intention of visiting that business.  However, at least half of the argument focused on whether the Court should decide this issue at all because Plaintiff/Respondent Laufer dismissed the underlying lawsuit after SCOTUS granted Defendant/Petitioner’s request to consider the question.  

Some background is in order.  The Plaintiff/Respondent, Deborah Laufer, filed a lawsuit (one of over 600 similar lawsuits she had filed according to her Petition for Certiorari) alleging that she visited the website of the Defendant/Petitioner Acheson Hotel (“Acheson”), and found it was missing information regarding accessibility features of the hotel required by the ADA.  She admittedly had no intention of ever visiting the hotel and had reviewed the website for no reason other than to test its compliance with the ADA regulations.  

The district court concluded that encountering the ADA violation without any intent to visit the hotel was not sufficient for Laufer to establish the injury required for her to have standing to pursue the case.  The U.S. Court of Appeals for the First Circuit disagreed and reversed, holding that an intent to visit the business was not necessary for standing.  Laufer’s encounter with the allegedly deficient information on the website was a sufficient injury to establish standing to sue, the First Circuit ruled.

After SCOTUS agreed to hear the case, Laufer dismissed her case in the district court and then asked SCOTUS to dismiss her case as moot.  Acheson vigorously opposed the request, arguing that Laufer had deliberately abandoned her claims to avoid a potential decision overturning the First Circuit’s very plaintiff-friendly standing precedent.  SCOTUS declined that request, stating that the issue of mootness would be considered at oral argument, along with the original question presented.  Then, on September 20, 2023, to further her mootness argument, Plaintiff filed a brief informing SCOTUS that the property at issue had been sold and Acheson no longer owned the hotel.

This was the state of play going into the oral argument yesterday, with counsel for Acheson, Laufer, and the United States presenting their arguments to the Court.

The two issues that dominated the argument were:

  1. Should the Court address whether Laufer had standing as a tester or simply declare the matter moot and not address the standing issue?
  2. On the standing question, when has a plaintiff suffered an injury sufficient to have standing when the violation is on a website?

Justice Thomas teed up a vigorous round of questioning by almost all the Justices on the mootness issue by asking Acheson’s counsel why the Court should decide the standing issue now that the case is moot.  Justices Sotomayor, Jackson, and Kagan seemed most inclined to declare the matter moot and not address the tester standing issue.  Justice Kagan said it felt “unjudicial” to consider a case that was “dead as a doornail” and said the case was “dead, dead, dead” in “all the ways a case can be dead.” 

Chief Justice Roberts, on the other hand, seemed concerned that a plaintiff could manipulate the process to keep SCOTUS from addressing the tester standing issue.  Justice Barrett seemed to share his concern, noting that Laufer had voluntarily dismissed the judgment she received in the Eleventh Circuit in a different case which had the effect of reducing (but not eliminating) the number of conflicting appellate circuit decisions on the question of tester standing.  Justice Alito suggested that a decision from SCOTUS on the issue was important given the split among the circuits on the issue of tester standing.  The viewpoints of Justices Gorsuch and Kavanaugh were not readily apparent.  Despite the apparent differences of opinion among some of the Justices on whether they should decide the tester standing issue, they and the parties appeared to agree that SCOTUS has the authority and discretion to address it, even if the case is moot.

On the issue of tester standing, the Justices posed a flurry of hypotheticals to counsel for the parties and the United States to ferret out their positions.  Under what circumstances does a plaintiff encountering a violation on a website suffer an injury sufficient to establish standing?  Counsel for Laufer took the position that encountering a violation on a website is itself sufficient to establish standing irrespective of the intent for visiting the site and any consequences flowing from that encounter.  The United States seemed to take a similar position.  Acheson disagreed.  Not surprisingly, the liberal Justices seemed more open to a less demanding standard for standing than their conservative counterparts.

SCOTUS concluded oral argument with no clear indication of whether or how it will rule on the tester standing issue, but it was clear that some Justices support a substantive ruling on the issue to clarify the law now.  As ADA specialists, we do hope the Court will address the question, as clarity and uniformity of the law are important for plaintiffs and defendants alike.

Edited by: Kristina Launey

shelly-collins-YppMBEPyfFQ-unsplash
Alligator swimming

By: John W. Egan and Ashley S. Jenkins

Occasionally we see a story in the news that we can’t resist blogging about, and this one is no exception:  Last week, an emotional support alligator named “Wally” was denied access to Citizens Bank Park in Philadelphia to watch a professional baseball game.  We thought this would be a nice opportunity to remind our readers about the difference between an emotional support animal (ESA) such as Wally, and a service animal.

As the story goes, Wally (a six-foot long, 55-pound alligator, equipped with a red harness and leash that boasts an impressive following on social media) and his owner were invited to the stadium by the Philadelphia Phillies to meet the team. When they arrived at the stadium too late to meet the players, a friend of Wally’s owner bought tickets so could stay for the game. While waiting in line, stadium employees informed Wally’s owner that the stadium allows service animals, but not emotional support animals (even if they are purported hug-giving, couch-laying alligators). The owner did not object and stressed in the article that he and Wally were only there because they had been invited by the Phillies in the first place and did not claim that Wally is a service animal.

The stadium was correct that it did not have to allow Wally the ESA into the stadium.  Under the Americans with Disabilities Act (ADA), public accommodations such as the stadium are only required to allow service animals entry, as the U.S. Department of Justice has explained in this useful FAQ.    

So, in case you have an emotional support alligator, llama, cockatoo, pig, marmot, peacock, or other domesticated (or wild) creature that shows up at the door of your business, here’s a quick primer on the difference between an ESA and a service animal:

ESAs Are Not Service Animals

The ADA defines a service animal as a dog that is individually trained to do work or perform tasks for people with disabilities.  Public accommodations must allow service dogs to accompany customers with disabilities in all areas of a facility where the public is allowed to go.  In addition, while miniature horses are not technically service animals, the ADA regulations require that public accommodations allow miniature horses that perform work or tasks for individuals with disabilities into their facilities just like service dogs, except they are subject to certain weight and size limitations.  Businesses should also keep in mind that most states recognize service animals in-training that are with their trainers as well. 

In contrast, ESAs provide comfort and support to their owners by being present, but they are not trained to perform any work or task.  We note, however, that dogs or miniature horses that are trained to perform work or tasks relating to a psychiatric disability (e.g. reminding someone to take their medications or taking affirmative action in the event of a panic attack) would be considered a service animal and must be allowed to accompany its owner into a public accommodation.

Unlike the ADA, the Fair Housing Act (FHA) recognizes ESAs as “assistance animals”—defined as any “animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability.” The FHA requires housing providers to allow ESAs as a reasonable accommodation (regardless of any pet restrictions) when a resident makes a request that is supported by reliable disability-related documentation or when the disability-related need for the animal is apparent.  

The bottom line is that public accommodations do not have any obligation to admit an ESA.  

There Are Only Two Questions You Are Allowed To Ask

When a customer with a purported service animal enters (or attempts to enter) a public accommodation, there are only two questions that can be asked if it is not obvious that the animal is a service animal: (1) Is the animal required because of a disability? and (2) What work or task has the animal been trained to perform?

One misunderstanding we hear often is the expectation that the animal must have documentation.  Under the ADA, public accommodations are not allowed to request any documentation at all.  And remember, public accommodations also cannot ask for a demonstration of the tasks the animal performs or inquire about the nature or extent of the customer’s disability.  

A public accommodation also cannot charge any special fees related to the animal (including pet fees) but can charge for damage caused by the animal if it normally charges for such damages.  The business also has no obligation to care for or supervise a service animal.   

Limited Reasons Why You Can Exclude A Service Animal  

The ADA requires that service animals be under the control of their handler at all times. This means that the animal is harnessed, leashed, or tethered while in public places, unless these devices interfere with the service animal’s work or the person’s disability prevents their use. In those instances, the handler must use voice signals or other effective means to maintain control of the animal.

There are limited circumstances when a business can ask a person to remove a service animal from its premises.  They are: (1) if the animal is out of control and the handler does not take effective action to control it; or (2) if the animal is not housebroken.  In either instance, the business must invite the customer back without the animal or allow the customer to remain on the premises without the animal.

*                        *                        *

Finally, it is important to remember that service animals do important work and the tasks they are trained to perform are absolutely essential for people with disabilities.  By one account, training a guide dog can take 3 years and can cost up to $50,000 annually.  These types of trained, working animals must be admitted under Title III of the ADA for good reason.    

Edited by:  Minh N. Vu

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Fair rides with lights.

By Minh Vu and Lotus Cannon

Seyfarth Synopsis:   New Eleventh Circuit decision says amusement park operators must base rider eligibility requirements on actual risks and cannot simply adopt manufacturer recommendations, even when required by state law.

How many natural limbs must a person possess to ride a roller coaster or other thrill-ride at an amusement park?  Until now, many parks simply adopted manufacturer recommendations, as required by state law.  A recent Eleventh Circuit decision upends this practice, demanding manufacturers and/or amusement parks conduct safety assessments that are tailored to specific rider eligibility requirements.

In Campbell v. Universal City Development Partners, Ltd. the plaintiff sued a waterpark under Title III of the ADA (“ADA”) after the park would not let him ride an aqua coaster because he did not meet the rider eligibility requirement of two natural, grasping hands.  (The plaintiff does not have a right hand and does not use a prosthetic.)  The plaintiff alleged that the park’s requirement violated the ADA which prohibits the imposition of discriminatory eligibility criteria unless those criteria are “necessary.”  The District Court for the Middle District of Florida granted the park summary judgment, finding that the criteria were “necessary” under the ADA because they were created by the ride’s manufacturer and Florida law requires compliance with manufacturer requirements.   The district court reached this conclusion even though the manufacturer had not identified any specific risks for riders with missing limbs. 

The district court holding did not sit well with the U.S. Department of Justice (DOJ) which filed an amicus brief in support of the plaintiff. The Eleventh Circuit also did not agree with the district court, vacating judgment for the park and remanding the case for further proceedings. 

In reaching its decision, the Eleventh Circuit first held that the park bore the burden of proof to show that the limb requirement was “necessary.”  Second, the Court held that following state law mandating compliance with manufacturer requirements did not make the requirement “necessary” because state law cannot trump federal law (in this case, the ADA) when the two conflict. Third, the Court rejected the argument that compliance with manufacturer requirements is “necessary” because manufacturers have a comparative advantage in identifying safety risks.  The Court noted that the manufacturer had not actually identified any “actual risk” for people who are missing limbs.  The only safety risk that the manufacturer had identified relating to riders with disabilities concerned the impact of prosthetic limbs falling from the ride and striking someone, and as well as risks for riders with sight disabilities.  The Court said: “[W]e hold that a manufacturer-imposed safety requirement is ‘necessary’ only to the extent it is related to actual risks to the health and safety of guests.”  Finally, the Court stated that the need for administrative efficiency did not make the criteria “necessary” because the criteria themselves were not based on actual risk.

While this decision requires amusement parks to do more than just rely on manufacturer eligibility requirements, it does not prevent them from imposing legitimate eligibility requirements on riders based on actual risks.  The problem in this case was that no relevant risk assessment had been conducted by the public accommodation or manufacturer to justify the limb requirement.  

The decision also contains some useful nuggets.  For example, the Court recognized that “necessary” eligibility criteria include those that protect the health safety of the person with a disability, not just the health and safety of other riders.  This is a win for public accommodations because the current regulations only allow for the exclusion of individuals with disabilities when their participation poses a “direct threat” to the health and safety of others.   Further, the Court concluded that the term “necessary” includes more than what is required for safety and could include administrative feasibility.  On this issue, the park argued that it needed to rely on manufacturer requirements because it could not make individualized assessments for every rider.  The Court said it did not need to address this issue because the manufacturer requirement itself was lacking (i.e., not based on an assessment of “actual risk”) so the case did not present the question of whether a legitimate rider requirement could be applied to all similarly situated riders.

In sum, amusement parks should be reviewing rider eligibility requirements that impact people with disabilities to see if they are based on an assessment of actual risks.  If not, they should revise those rider requirements or conduct/commission additional risk assessments.

Edited by Kristina Launey

pexels-gül-işık-2292837
Rolled up diploma tied in a red ribbon being handed off.

By John W. Egan, Dov Kesselman, and Ashley S. Jenkins

A recent “Dear Colleague” letter issued jointly by the U.S. Department of Justice (DOJ) and the Office of Civil Rights of the Department of Education (OCR) places colleges and universities on notice of recent enforcement activities under Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504) directed at digital accessibility.  Referencing recent consent decrees entered into between OCR and more than 50 institutions of higher learning in just the last year, the Letter sends a clear message that institutions should meaningfully address the accessibility of their online properties and communications.

The Letter describes the increasing reliance by colleges, universities, and post-secondary institutions on not only their own websites, but also third-party social media and third-party platforms like YouTube, Spotify, and Apple Podcasts, to deliver services, programs, and activities.  It cites broad obligations to provide disability access, not only to students, but to members of the public as well.

Specifically, the Letter references the recent court-approved consent decree in an ADA enforcement action commenced by the DOJ against the University of California at Berkeley, which addressed the accessibility of Berkeley’s online content, including thousands of hours of free coursework made available to the public.  This agreement, as well as the 50-plus consent decrees that OCR entered into with covered entities over the last year that are also referenced in the Letter, have a number of common themes that provide insight into the DOJ’s and OCR’s position on these issues:

  • Digital Accessibility Standard: Adoption of an institution-wide digital accessibility standard, such as Web Content Accessibility Guidelines (WCAG), Version 2.0 or 2.1, Level AA; 
  • Broad Remedial Coverage: Requirement to audit digital properties and content via a qualified consultant.  Audit methodologies to include not only automated scanning tools, but also manual code review and testing with a screen reader.  Audit scope to cover not only university websites but also third party social media and other sites where they post content, with a corresponding remedial obligation for identified accessibility barriers;
  • New Content to Be Accessible With Institutional Controls: New content on the university website and third-party sites all subject to the institution’s selected digital accessibility standard, with certain agency reporting obligations, and the requirement to develop a plan to maintain accessibility going forward; and
  • Means To Provide Feedback: Posting of an accessibility statement and/or means for individuals to notify the university of any alleged technology-based barriers or related commentary.

Further, the Letter references a 20-part internet video series developed by OCR, which, while not exhaustive, does address digital accessibility concepts and methods of execution. It covers topics such as digital access in education, how people with disabilities use various forms of assistive technology, related federal regulations, and coding techniques for the elimination of barriers, including through the use of mini lessons.  Additionally, the Letter references the Department of Education’s intention to publish a Notice of Proposed Rulemaking (NPRM) to amend Section 504 regulations, which may address digital accessibility.

Based on these developments, now is the time for colleges and universities to review, with the advice of qualified counsel, their policies, procedures, and protocols addressing key areas of regulatory focus, such as:

  1. Accessibility of digital content on university websites and social media platforms;  
  2. Procurement of accessible technologies from third parties, such as vendors that provide athletics, library, merchandising/e-commerce functionality on institution websites;
  3. Audits for WCAG conformance and existing consultant contracts and relationships; and
  4. The terms of previous settlement agreements or consent decrees, and the institution’s ongoing compliance with these terms. 

We will continue to monitor these regulatory and enforcement activities and will provide additional reporting on future developments.

Open laptop with law book and gavel setting on the keyboard.

By  John W. Egan and Ashley S. Jenkins

Seyfarth Synopsis: New Kansas law will allow resident businesses to sue ADA website plaintiffs and their counsel over “abusive” litigation to recover defense fees and potentially punitive damages.

The Kansas legislature recently passed The Act Against Abusive Website Access Litigation that, starting on July 1, 2023, will allow Kansas businesses to sue ADA plaintiffs and their counsel to recover legal fees, as well as potentially punitive damages, for “abusive” website accessibility litigation commenced in any jurisdiction.  The new law allows businesses (or the State Attorney General on behalf of a class of businesses) to file claims against plaintiffs and their attorneys in a Kansas court of competent jurisdiction to recover fees incurred in the defense of out-of-state website accessibility litigation, as well as in the Kansas enforcement action.  The new law even authorizes the court to award punitive damages or sanctions not to exceed three times the fee award but does not provide any standards to guide the court in that determination (all these remedies also assume that a Kansas court would have personal jurisdiction over ADA plaintiffs and their law firms).

The new law adopts a “totality of the circumstances” test to determine if an ADA website lawsuit qualifies as abusive, which considers: (1) the number of substantially similar actions filed by the same plaintiff or firm (including those previously-declared frivolous or abusive litigation in the previous 10 years); (2) the defendant’s number of full-time employees and available resources to correct the alleged website access violation(s); (3) whether the jurisdiction or venue is a “substantial obstacle” to defending the case; (4) whether the plaintiff or his or her attorney is a Kansas resident; and (5) the nature of settlement discussions, including the “reasonableness of settlement offers and refusals to settle.” 

If the prospect of punitive damages were not enough of a deterrent for plaintiffs to sue Kansas businesses over website accessibility, the law even includes an available presumption that an ADA website case is abusive.  Specifically, when a business makes good faith attempts to cure the alleged violation after being placed on notice (either in the pleadings or otherwise) within 30 days, then the presumption applies. However, the presumption is unavailable where the business fails to correct the violation within 90 days of being placed on notice, as determined by the court.  This framework harkens back to previous failed legislative initiatives to amend the ADA to mandate that plaintiffs provide businesses with notice of violations and opportunity to cure before a case can proceed. 

The Kansas law will sunset if and when DOJ issues website accessibility regulations – which may well happen in the coming years.

As we have previously reported, website accessibility litigation is now making up a greater percentage of federal ADA Title III cases than ever before.  The litigation is highly concentrated geographically, with 92 percent of federal ADA website cases filed in only three jurisdictions last year: New York, Florida, and California.  Businesses of all shapes and sizes are often targeted, including many businesses domiciled outside of these jurisdictions.  

The Kansas law explicitly states that there are instances where website accessibility litigation “is abused for the primary purpose of obtaining an award of attorney fees for the plaintiff instead of remedying the alleged access violation,” and that “this small minority of cases . . . are almost always filed in another state’s court system against smaller Kansas businesses.”  In fact, according to our data, the entire state of Kansas only had seven ADA Title III accessibility lawsuits in 2022 and none of them were about websites.  It remains to be seen whether the Kansas law will deter website lawsuits against Kansas businesses, and whether plaintiffs, their lawyers, and the U.S. Department of Justice will challenge the law.

Edited by Kristina M. Launey 

building-ge3fd3b34c_1280
Red hospital building graphic

By John W. Egan and Minh N. Vu

Seyfarth Synopsis: Under a new Consent Decree with the DOJ, 24 Arizona eye surgery centers can no longer require patients with mobility disabilities to pay for third-party services to transfer them on and off operating tables, must pay $1M in damages and penalties, and implement comprehensive ADA policies and training.   

We predicted that the DOJ would get more aggressive in enforcing Title III of the ADA during the Biden Administration and we were right. On the heels of a comprehensive Consent Decree with UC Berkeley comes a Consent Decree involving 24 eye surgery centers in Arizona. 

The Consent Decree concluded a lawsuit the DOJ filed in the U.S. District Court of Arizona against the medical practice operating these eye surgery centers, as well as the organization that provided management, infrastructure, and technology services to that practice, as well as other partner practices. The lawsuit alleged that the eye centers refused to provide transfer assistance to patients who needed such assistance to get onto tables for surgery, and instead required them to pay a medical transportation provider to transport them from their homes in gurneys or stretchers and place them on the surgical table.  The DOJ alleged that the defendants had “sometimes” assisted patients, but in 2017 began requiring surgical patients with mobility disabilities who could not bear their own weight to pay for their own assistance.  The agency took the position that this was an unlawful surcharge under the ADA, as well as a violation of the obligation to provide reasonable modifications to normal policies, practices, and procedures, free of charge.

Last week, the DOJ and defendants agreed to a 22-page Consent Decree under which defendants would not only stop requiring patients with mobility disabilities to assume transfer-related costs, but also pay $1 million in damages and penalties, including establishing (and publicizing) a claims fund for aggrieved individuals, and implementing ADA policies and staff training. Here are the key aspects of the Consent Decree:

  1. “Interactive Process” Required For Providing Transfer Assistance.  Defendants and partner practices will engage in an “interactive process” with patients in need of transfer assistance when scheduling surgical appointments, which must include consideration of patient preferences and an individualized assessment of patient needs to determine transfer assistance options.  Defendants will provide and pay for transfer options that may consist of in-house staff assistance, equipment to provide transfer assistance, or third-party transportation services.
  2. Policy Requirements.  Defendants and partner practices will implement a transfer assistance policy that includes, among other things, a process for conducting individualized assessments for transfer assistance requests, acquiring transfer equipment, training of personnel to provide this assistance, and resolution of related patient disputes.  Defendants will also adopt and post a non-discrimination policy on their websites, as well as in employee handbooks and patient materials.  
  3. Staff Training.  Defendants and partner practices will provide annual training on ADA Title III requirements for facility accessibility, interacting with individuals with disabilities, and techniques for safely transferring individuals with disabilities to and from medical equipment, examination tables, and surgical tables.     
  4. Claims Fund, Damages, and Civil Penalty.  Defendants will deposit a sum of $725,000 into an independently-administered claims fund for aggrieved persons and pay for the administration of the fund.  The fund is to be distributed, in its entirety, to patients and prospective patients who, since 2017, were advised that they needed to pay for third-party medical personnel to transport them to surgical appointments.  Additionally, defendants will pay compensatory damages in the amount of $225,000 to specific individuals to be identified by the DOJ, as well as a civil penalty of $50,000 to the United States Treasury.
  5. Settlement Notice.  Defendants will notify patients eligible for compensation by U.S. Mail and e-mail monthly for one year.  Notice will also be provided on defendants’ websites, and this posting must conform to the Web Content Accessibility Guidelines (WCAG), Version 2.0, Level AA.  Additionally, once a month for at least 6 months, defendants will “post, pin, and maintain a tweet” on their Twitter accounts publicizing the Notice, and do the same on their Instagram and Facebook pages.    

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The DOJ’s position is generally consistent with its previous guidance entitled Access to Medical Care for Individuals with Mobility Disabilities issued in July 2010.  In response to FAQs addressing accessible services and facilities at doctors’ offices, clinics, and other health care providers, the guidance states that medical personnel must provide “reasonable assistance” to enable individuals with mobility disabilities to receive medical care, which may include providing aid, through trained personnel and potentially with the assistance of lifts or other medical equipment, to facilitate the transfer in and out of mobility devices as necessary to receive treatment and care.  

The DOJ’ s position that the ADA requires health care providers to provide transfer assistance in health care settings raises a thorny question for health care providers with limited staff who neither have the training nor physical strength to provide such assistance.  Does a dental practice with one dentist, a receptionist and a dental assistant need to hire additional staff to provide transfer assistance, for example?  The ADA and its implementing regulations state that public accommodations do not have to modify a policy, practice, or procedure that “fundamentally alters” a public accommodation’s services or facilities, but this defense has not been tested in the context of transfer assistance in the health care setting.  The defendants in this case elected not to test this defense.  Had they done so, the analysis would have been fact intensive and would have required an analysis of their operations, the types of patient assistance they already provide, the nature of the services provided, and other factors. 

Medical providers of all sizes should take note, evaluate their own protocols for handling transfer requests, and consult with knowledgeable counsel as to the ADA compliance considerations that these issues raise.  

Edited by Kristina Launey

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Plaintiffs filed 3,225 website accessibility lawsuits in federal court in 2022 – a 12% increase over 2021. 

2022 was another record setting year for website accessibility lawsuits filed in federal court.  The total number of lawsuits filed in federal court alleging that plaintiffs with a disability could not use websites because they were not designed to be accessible and/or work with assistive technologies in 2022 was 3,255–360 more than 2021. This 12% increase in the number of lawsuits in 2022 is just slightly lower than the 14% 2021 increase, and matches the 12% increase we saw in 2020.  While these numbers pale by comparison to the explosion of cases we saw from 2017 to 2018 (an increase of 177%), the continued year-over-year increases are still very significant.

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2022: 2017: 814; 2018: 2,258 (177% increase from 2017); 2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (12% increase from 2019); 2021: 2,895 (14% increase from 2020); 2022: 3,255 (12% increase from 2021). *The number of cases that could be identified through a diligent search.]

Especially striking is the fact that, based on our soon-to-be-released overall 2022 ADA Title III lawsuit numbers, these website accessibility lawsuits made up a whopping 37% of the ADA Title III lawsuits filed in 2022, up from roughly 25% in 2021.

The first half of 2022 saw a steady climb from 210 in January to 383 in March, a dip to 164 in April, then spikes at 412 and 448 in May and June. The monthly numbers were more consistent at between 232-273 in July through October, with a dip to 163 in November, before a December finish of 201.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2022 – Dec. 2022): Jan. 2021 (210), Feb. 2021 (285), Mar. 2021 (383), Apr. 2021 (164), May 2021 (412), Jun. 2021 (448), Jul. 2021 (232), Aug. 2021 (237), Sep. 2021 (247), Oct. 2021 (273), Nov. 2021 (163), Dec. 2021 (201). *The number of cases that could be identified through a diligent search.]

New York, Florida, and California federal courts continued to be the busiest by far, with Florida regaining the #2 spot and Pennsylvania besting California for the #3 spot.  New York federal courts continued to be bombarded with lawsuits, totaling 2,560 lawsuits in 2022 (continuing an upward trend from 2,074 in 2021, 1,694 in 2020, 1,354 in 2019, and 1,564 in 2018).  Florida was a distant second with 310 lawsuits. California federal courts saw only 126 lawsuits in 2022 (halting the prior upward trend of 359 in 2021, 223 in 2020, 120 in 2019, and 10 in 2018), as shown in the chart below. Pennsylvania passed the 200 mark at 216 in 2022, materially up from 167 lawsuits filed in 2021 and 173 in 2020.  Illinois retained the #5 spot with 19 suits—considerably fewer than its 34 in 2021 and 32 in 2020 and 91 in 2019). Connecticut and Indiana remained in the top 10 with relatively meager numbers at 5 and 2, respectively, and newcomers Massachusetts, North Carolina, and Minnesota beat out Oregon and Wisconsin for the final 3 top 10 spots, with 13, 3, and 1 filings, respectively.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2022: NY 2,560, FL 310, PA 216, CA 126, IL 19, MA 13, CT 5, NC 3, IN 2, MN 1. *The number of cases that could be identified through a diligent search.]
[Graph: New York, Florida, Pennsylvania, and California Federal ADA Title III Website Accessibility Lawsuits 2017-2022: NY: 2017 (335), 2018 (1,564), 2019 (1,358), 2020 (1,694), 2021 (2,074), 2022 (2,560); FL: 2017 (325), 2018 (576), 2019 (529), 2020 (302), 2021 (185), 2022 (310); PA: 2017 (58), 2018 (42), 2019 (92), 2020 (173), 2021 (167), 2022 (216); CA: 2017 (9), 2018 (10), 2019 (121), 2020 (223), 2021 (360), 2022 (126).]

If you’re wondering why California has so few website accessibility cases relative to New York, it is likely because New York courts have been more favorable toward plaintiffs, especially when the defendant is an online-only business. Whether online only businesses are covered by the ADA remains unanswered by the Court of Appeals for the Second Circuit; however, with a few exceptions, district court judges in New York that have addressed the issue have found that online only businesses are covered by the ADA. 

In contrast, in California, both federal and state courts of appeals have reached the conclusion that online only businesses are not covered by the ADA, making it much more difficult (if not impossible) for plaintiffs to sue online-only businesses for accessibility violations.  Thus, we predict fewer website accessibility cases in both California state and federal courts in the future.

These numbers do not account for the many demand letters sent out by law firms which never result in lawsuits, as well as lawsuits filed in state courts (mostly in California) which are more difficult to track.  These numbers also do not include lawsuits filed alleging that a mobile app is inaccessible, unless the lawsuit also alleged an inaccessible website.

Will the Title II rulemaking effort slated to start in 2023 make a difference in the 2023 lawsuit count?  Unlikely, as that process can take a significant amount of time, and only would apply to state and local governments under Title II and not private businesses.  While a Title III rulemaking could follow, it is highly unlikely to be completed by the end of this Presidential term.

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About our methodology:  Our 2022 numbers are based on searches using keywords of data from the Courthouse News Services.  Thus, it is possible that there are some website accessibility cases that were not captured in the searches if their descriptions did not include the keywords.  We then review the thousands of entries manually to remove lawsuits that may be about websites but are not about a website’s accessibility to a user with a disability.  For example, there were a number of lawsuits in 2018-2021 (a very large explosion of such suits in 2021 in California) brought by plaintiffs with mobility disabilities alleging that the reservations websites of hotels did not provide adequate information about the accessibility of hotel facilities.