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.