effective communication

Seyfarth Synopsis: DOJ’s response to members of Congress about the explosion in website accessibility lawsuits contains some helpful guidance for public accommodations fighting these claims.

As we reported in June, 103 members of the House of Representatives from both parties asked Attorney General Jeff Sessions to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” The letter urged the Department of Justice (DOJ) to “provide guidance and clarity with regard to website accessibility under the … ADA.”

DOJ’s September 25 response did not do what the members asked, but it did provide some helpful guidance and invited Congress to take legislative action to address the exploding website accessibility litigation landscape. DOJ first said it was “evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.” (This is helpful – to at least know this issue has not fallen totally off DOJ’s radar.) It continued:

The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.

Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.

These statements are not surprising, as DOJ (granted, under the previous Administration) has made them on other occasions.  But here’s the part of the letter that is helpful for businesses:

Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.

(emphasis added). The fact that public accommodations have “flexibility” in how to comply with the ADA’s effective communication requirement has been lost in the past eight years, even though DOJ made this point in its 2010 Advanced Notice of Proposed Rulemaking (ANPRM) for websites.  In that document, DOJ stated that a 24/7 staffed telephone line could provide a compliant alternative to an accessible website.  The few courts to have considered this argument in the context of an early motion to dismiss have recognized its legitimacy, but have allowed cases to move forward into discovery on this and other issues.  There have been no decisions on the merits addressing the viability of having a 24/7 telephone option in lieu of an accessible website.

The statement that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA” is new and significant.  It is a recognition that a website may be accessible and usable by the blind without being fully compliant with the privately developed Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1.  The statement confirms what some courts have said so far:  That the operative legal question in a website accessibility lawsuit is not whether the website conforms with WCAG, but whether persons with disabilities are able to access to a public accommodation’s goods, services, and benefits through the website, or some alternative fashion.

In response to the members’ concern about the proliferation of website litigation lawsuits, DOJ said:  “Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.”  DOJ is essentially putting the ball back in the Congressional court, where little is likely to happen.

Edited by Kristina M. Launey.

Seyfarth Synopsis: New Affordable Care Act and Medicaid Regulations will require covered entities providing health care programs and services have accessible electronic information technology, including accessible websites.

While we continue to wait for new regulations for the websites of state and local governments, federal agencies and public accommodations, two new regulations from the Department of Health and Human Services (HHS) strongly suggest that health care provider websites must conform to the Web Content Accessibility Guidelines (WCAG) 2.0 AA to meet their non-discrimination obligations.

Effective July 18, 2016, a new “Meaningful Access” rule interpreting the Affordable Care Act’s (ACA) Section 1557 Anti-Discrimination requirements will require providers of health care programs and services that receive federal financial assistance comply with new requirements for effective communication (EIT) (including accessible electronic information technology), and physical accessibility.  Because most health care providers do receive federal funds through Medicare reimbursements, this rule has broad coverage.  Effective July 1, 2017, new Medicaid rules will require managed care programs to have (EIT) that complies with “modern accessibility standards,” and impose other effective-communication requirements such as large print and other alternative formats.

Section 1557 of the ACA requires covered entities to ensure that health programs and services provided through EIT be accessible to individuals with disabilities unless doing so would result in undue financial and administrative burdens (in which case the entity must provide the information in an equally accessible alternative format) or a fundamental alteration in the nature of the health program or activity.   HHS did not specify a website accessibility standard in the new rule.   However, the agency said that compliance with accessibility requirements would be “difficult” for covered entities that do not adhere “to standards such as the WCAG 2.0 AA standards or the Section 508 standards,” and “encourages compliance” with these standards. Moreover, recipients of federal funding and State-based Marketplaces” must ensure that their health programs and activities provided through websites comply with the requirements of Title II of the ADA — requirements that are the subject of a pending rulemaking at the Department of Justice.  The Rule also requires providers to give “primary consideration” to the patient or customer’s auxiliary aid or service for communication.

The new Medicaid Rule will require that entities providing managed care programs provide information in a format that is “readily accessible”, which it defines to mean “electronic information and services which comply with modern accessibility standards such as section 508 guidelines, section 504 of the Rehabilitation Act, and W3C’s Web Content Accessibility Guidelines (WCAG) 2.0 AA and successor versions.”  The agency intends this definition to be more clear, reflect technology advances, and align with the requirements of Section 504, and recommends entities consult the latest section 508 guidelines or WCAG 2.0 AA.

While both rules make reference to the Section 508 standards for accessible websites which has been the standard for federal agency sites for many years, all indicators point to WCAG 2.0 AA as the standard to use when working to improve the accessibility of a website.  The federal government has issued a proposed rule to replace the existing Section 508 standards with WCAG 2.0 AA.  Most experts we deal with consider the Section 508 standards outdated.  WCAG 2.0 AA was developed by a private consortium of experts called the Worldwide Web Consortium (W3C), and is the website access “standard” in all U.S. Department of Justice (DOJ) settlement agreements. It is also the legal standard for all airline websites covered by the Air Carrier Access Act.  Moreover, DOJ has indicated in its Supplemental Advanced Notice of Proposed Rulemaking for state and local government websites that WCAG 2.0 AA should be the legal standard for such websites.

By Eden Anderson

As we have previously noted, Title III of the ADA requires that public accommodations provide, at their expense, “auxiliary aids and services” to ensure “effective communication” with persons with hearing disabilities.  The “nature, length, complexity, and context of the communication” at issue and the individual’s “normal method of communication” must be considered before assessing whether a particular auxiliary aid or service must be provided to afford “effective communication.”  This can be a very difficult determination in the healthcare context, where communications can be complex and urgent, including in life or death situations.   

A federal district court in Florida recently applied this legal obligation in the context of a hospital providing medical services to deaf patients and concluded that the use of video relay interpretation, passed written notes, and gestures sufficed to meet the hospital’s obligation and rejected the plaintiffs’ claim that a live interpreter was necessary to afford effective communication.   

In Martin v. Halifax Healthcare Systems, Inc., three individuals who are “completely deaf” and whose primary mode of communication is American Sign Language filed a lawsuit claiming that the hospital violated the ADA by failing to provide live interpreters for communication.  Two of the plaintiffs had been patients at the hospital, one of whom was treated while “in the throes of a serious heart attack.”  The third plaintiff had accompanied her pregnant daughter to the hospital. 

Although two of the patients occasionally received live interpreter services, in most instances  the hospital instead communicated with the plaintiffs through video relay interpretation, passed notes, and gestures.  The court held that such efforts were sufficient to afford effective communication.  The court noted that there was no evidence that the use of other communication methods adversely affected the plaintiffs’ understanding of the medical issues or that the plaintiffs “would have reached a different decision about treatment options or reached a more beneficial result” had live interpreters been provided. 

While the decision is a positive development for health care providers and other places of public accommodation, hospitals and health care providers should not view it as license to not provide sign language interpreters for deaf patients.  On the one hand, the ruling comports with the ADA regulations stating that a public accommodation is not required to provide an individual’s requested auxiliary aid or service so long as the one that is provided results in effective communication that is timely and protects the privacy and independence of the individual with a disability.  On the other hand, the rule seems inconsistent with the Department of Justice’s view that hospitals and health care providers must provide interpreters for important health care related communications.  The DOJ’s position is memorialized in a number of its settlements with hospitals and health care providers and a hospital that does not subscribe to this position would be at greater risk of a DOJ inquiry.    

Edited by Minh N. Vu and Kristina M. Launey

By Eden Anderson

Title III of the ADA requires that public accommodations provide, at their expense, “auxiliary aids and services” to ensure effective communication with persons with hearing, vision, or speech disabilities.  But what does that really mean for a business?  What is effective communication?  The Department of Justice last month released its most recent guidance on this topic (the “Guidance”).  DOJ’s previous guidance on the subject was issued in 2011 in a primer targeted for small businesses.  Since the DOJ and state enforcement agencies have taken a keen interest in this subject, businesses should take a minute to review these two guides and make sure that they, and their employees, are meeting their obligations.

The “effective communication” obligation exists because people who have hearing, vision, or speech disabilities communicate differently from people without these disabilities.  For example, a person who is blind is not going to be able to read a menu or legal documents.  A person who is deaf is not going to be able to hear what a doctor says about his diagnosis.  Thus, in most instances, these individuals will need appropriate “auxiliary aids and services” to ensure effective communication.

The Guidance explains that the key to effective communication is to consider the “nature, length, complexity, and context of the communication” and the person’s “normal method of communication.”  In some contexts, effective communication may entail simply reading something to a blind individual (e.g., a menu so he or she can order in a restaurant ), or exchanging notes with a deaf individual (e.g., about a product for sale in a retail setting).

In other contexts where communication is extensive (e.g., educational or medical settings), ensuring effective communication can be complex and costly, and may require the provision of an interpreter or the acquisition and use of unfamiliar technology.  As the Guidance explains, various technologies can be used to ensure effective communication, such as computer-assisted real-time transcription, video remote interpreting, and screen reader software.  The public accommodation should consult with the individual—especially in these more complex situations —to determine an aid or service that will provide effective communication.  If more than one aid or service would allow equally effective communication, the public accommodation is not required to provide the individual’s requested aid or service.

The Guidance notes that the public accommodation must provide the aid or service unless it can show that it would “fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.”  The standard for establishing this defense is quite high; the Guidance states it will be shown only in “rare” circumstances.

As important reminders, the Guidance also notes the following: Continue Reading New Justice Guidance Reminds Businesses They Are Responsible for Ensuring Their Communications With People with Disabilities Are Effective

By Minh N. Vu

A recent decision by the federal court in the Northern District of Illinois serves as an important reminder that organizations that do not lease or own physical space where they provide goods, services, or accommodations to the public may still be covered by Title III of the ADA when they hold conferences or events.  In People of the State of Illinois v. Illinois High School Ass’n, the Illinois State Attorney General and a disabled high school student sued the Illinois High School Association (IHSA) for refusing to adopt policies and procedures that would allow athletes with disabilities to compete in IHSA events and competitions.  The IHSA is an organization comprised of 98% of public and private high schools in Illinois.  The high schools rely on IHSA to organize and administer their state championship meets.  The plaintiffs contended, among other things, that the IHSA’s refusal to establish special qualifying standards for athletes with disabilities to compete in these state championship meets – as it had done based on other criteria such as gender, school size, and geography – violated Title III of the ADA.  The U.S. Department of Justice, which enforces Title III of the ADA, filed a brief supporting the plaintiffs’ position.

IHSA moved to dismiss the ADA claim, arguing that it is not a place of public accommodation because it is only an organization that promotes athletic events, and has no physical place where it provides goods and services to the public.  The court denied the motion and allowed the case to move forward.  Specifically, the court held that a “place of public accommodation” is a “facility operated by a private entity whose operations affect commerce” and that falls within certain categories, including a gymnasium, place of exercise or recreation, school, place of education, stadium, or other place of exhibition or entertainment.  The court pointed out that by organizing and holding athletic events in these types of facilities, the IHSA could be considered an “operator” of a public accommodations facility.

Although this case is still pending, private organizations should consult counsel before hosting events in physical spaces to ensure they understand and comply with Title III requirements applicable to operators of public accommodations.  For example, operators of public accommodations facilities are required to ensure effective communication of event materials to attendees who have speech, hearing, and sight disabilities.  Sign language interpreters, assistive listening devices, and written materials may have to be provided, at no charge to the attendee, at events.  The physical set-up of the facilities, including routes to elevated platforms and seating must also be accessible.