There has been a proliferation of ADA lawsuits alleging that websites are not accessible to the blind or deaf. Individuals who are blind or have low vision may require assistive devices and specialized software to access the Internet. These devices often include software that enables them to magnify the content of a web page, reads the content to them, or enables them to use a braille reader to read a website. Some individuals with disabilities cannot use a mouse and can only navigate with a keyboard, touchscreen, or voice recognition software. For persons with hearing impairments, the visual aspects of a website are accessible, but audio on a website may not be.

While we continue to wait for new regulations for state, federal, and private websites, two new regulations from the Department of Health and Human Services (HHS) suggest that health care provider websites must conform to the Web Content Accessibility Guidelines (WCAG) 2.0 AA in order not to discriminate against the disabled.

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 to comply with new requirements for effective communication, including accessible electronic information technology. In addition, effective July 1, 2017, new Medicaid rules will require managed care programs to comply with “modern accessibility standards.”

Section 1557 of the ACA requires covered entities to ensure that health programs and services provided through electronic information technology be accessible to individuals with disabilities unless doing so would result in undue financial and administrative burdens or a fundamental alteration in the nature of the health program or activity. Unfortunately, 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 comply with “standards such as the WCAG 2.0 AA standards or the Section 508 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 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.”

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 signs point to WCAG 2.0 AA as the likely 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. WCAG 2.0 AA was developed by a private consortium of experts called the Worldwide Web Consortium (W3C), and is frequently used as the website access “standard” in Department of Justice (DOJ) settlement agreements. In addition, the Department of Justice 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.

What would it take for a website to comply with WCAG 2.0 AA? In general, WCAG 2.0 AA ask owners of websites to: (1) provide text alternatives for any non-text content so that it can be changed into other forms people need, such as large print, braille, speech, symbols or simpler language; (2) provide alternatives for time-based media; (3) create content that can be presented in a simpler layout without losing information or structure; (4) make it easier for users to see and hear content by, among other things, separating foreground from background; (5) make all functionality available from a keyboard as opposed to have to use a mouse; (6) make text content readable and understandable to web navigation tools; (7) make web pages appear and operate in predictable ways; and (8) maximize compatibility with assistive technologies.

Recent litigation settlements provide a good example of the potential exposures businesses face when their websites are not accessible. To settle a class action lawsuit brought by blind individuals alleging that its website was not accessible, Target agreed to pay $6 million to eligible class members and to make substantial modifications to its website. The court in the Target case also awarded plaintiffs almost $4 million in attorney fees and costs. Similarly, as part of a settlement, Netflix agreed to include closed captioning for all of its Internet streamed movies and to pay $755,000 in fees to the plaintiff’s attorneys.

Until some clarity is brought to the legal landscape, it would be prudent for healthcare providers to assess the accessibility of their websites to ensure that they can be used independently by individuals with a variety of disabilities. Healthcare providers may want to work with their website designers and vendors to modify their websites to meet the requirements of WCAG 2.0 AA, to the extent practicable and readily achievable.