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Can you be sued if your website isn't ADA-accessible?

June 1, 2021
Accessibility isn't just for wheelchairs—your practice website must also meet accessibility requirements. But how to do so is a bit murky.

Could you become the target of a lawsuit that alleges your website is not accessible to people with disabilities? Yes, you could, and your odds are increasing with time. Allow me to show you how to stay out of trouble.

When the Americans with Disabilities Act (ADA) became law in 1990, its purpose was to eliminate physical barriers for people with disabilities. In time, its scope expanded. Some 20 years later, in 2010, the US Department of Justice (DOJ) announced that the rules would apply accessibility standards to websites.1 They were slow in making that happen, and they never actually got around to writing any rules. In December 2017, the DOJ announced that they weren’t going to issue any rules. Rather, they recognized that a body of civil case law had developed, and they felt that would do the job.2 This was followed up with a statement in September 2018 that said they wanted to allow flexibility for businesses, and that websites may not measure up to published standards. But this didn’t mean they weren’t compliant with the ADA.3

While in most cases businesses prefer not to have government regulations, in this case, leaving the matter in the hands of the courts has made things difficult. It has created a very fuzzy regulatory environment with varying interpretations of the law, depending on the judge involved. It’s an open invitation for lawyers to file lawsuits to test their limits. Since the DOJ first suggested that they weren’t going to make any rules, there has been an explosion of lawsuits.4 Fully one-third of all ADA lawsuits today concern website and app accessibility.5 In 2015, when the DOJ was still talking about making rules, only 60 website accessibility lawsuits were filed in federal court. In 2017, this had increased to 814. In 2018, the number rose to 2,258.6 The curve then flattened.7 After a pause in 2019 and a decrease in 2020 due to the pandemic, lawsuits in 2021 are increasing again to new record levels.

The published standards referred to by the DOJ are written by the World Wide Web Consortium. They have been publishing guidelines for making websites accessible since 1999. They’re called Web Content Accessibility Guidelines (WCAG). Version 2.1 was published in June 2018, and that is considered the current gold standard for website accessibility.8 The problem with these guidelines is that they are very stringent, and the costs for making a website fully compliant are estimated at anywhere from $3,000 to $50,000.9 I imagine this is well beyond what many dentists would like to budget for website accessibility.

How to affordably protect yourself

To get the best answers about this issue, I contacted a lawyer who specializes in defending businesses against website accessibility lawsuits. Martin Krezalek, JD, a partner in the Blank Rome law firm in Manhattan, has successfully defended companies around the country in website accessibility litigation, and he frequently publishes and lectures on the subject. He granted me a telephone interview in which we explored this issue. Krezalek has successfully argued that the September 2018 statement of the DOJ makes it clear that not every website needs to be strictly compliant with WCAG standards. Of course, there is no way to stop a lawyer from suing a practice, whether they have a valid case or not. But he told me that if your website meets basic accessibility standards, which can be done for a more modest fee, you should be able to avoid a lawsuit.

In a webinar Krezalek presented last year, he discussed what plaintiff lawyers are doing. This is the best way to understand how to avoid being a target. In the webinar, he said that several years ago the lawsuits began when individuals with disabilities became frustrated with websites, did not receive cooperation from businesses, and then hired lawyers to get satisfaction.

But in the last three or four years, this has changed so that now law firms usually initiate the complaints. Krezalek says about two-thirds of the lawsuits are being filed by only 10 firms. These firms pick an area of focus, usually by industry and sometimes by geography, and compile a list of participants in that category. Then they run an accessibility scan of the website, and scans of most websites come back with a list of errors. They then send a demand letter listing the errors, or they just file the lawsuit and await the response. The goal is to make it less costly for defendants to settle than to defend themselves. More than 90% of these cases never go to trial but are negotiated to a settlement.

I asked him what accessibility scanning software a plaintiff’s lawyer is most likely to use. The most prominent free tool is the WAVE web accessibility evaluation tool. If you scan your website with this, it gives you a list of accessibility issues. If you bring the number of major errors on the site it reports down to fewer than five, you make your website an unattractive target.

A common misconception is that you can have a widget installed on your website that will take care of accessibility issues. These widgets allow visitors to adjust the contrast, text size, and other website elements. Some of them convert the website into a bare-bones text-only website. While these tools address some accessibility issues, they don’t address the most critical ones. In his webinar, Krezalek said, “We often get the question as to whether overlays and widgets will protect us from lawsuits, and the answer is probably not.”

To survey the status of dental website accessibility, I asked the technical department members at Infinity Dental Web to take a random sampling of dental practice websites and run the accessiBe scanning tool on them. While not the popular tool for lawyers, it gives an easy-to-understand rating, which suits my purposes for this article.

We checked seven dental websites that had no accessibility widget. None of them were rated as compliant with WCAG 2.1 AA standards. Five were rated as semicompliant, and two were rated as noncompliant. We also checked seven websites with an accessibility widget. Again, none of those were rated as compliant. Three were rated as semicompliant and four were rated as noncompliant, so poorer scores overall than websites with no widget. My guess is that the widgets did not cause accessibility problems for the websites but gave the web developers a false sense of security so that they did not address other accessibility issues.

In our sampling, we did not include any websites with the accessiBe widget since they were the makers of the tool we used. Krezalek did give the accessiBe accessibility solution high marks for effectiveness and affordability.

Are you going to be a target?

Right now, there are only a handful of dentists being sued for website accessibility problems. Plaintiff law firms are not currently focusing on dental practice websites. But this is no time to become comfortable. Krezalek said that they are currently targeting several industries, including urologists in California. Could dentists be next?

I believe now is a good time to address this issue. It isn’t that difficult or expensive to have your website made ADA compliant. Search online for accessibility solutions for dental websites. When you find a company, test the websites they claim to have made accessible, using the WAVE tool mentioned, and see if they have a minimum number of major errors. Expect them to quote you a reasonable price for fixing your website.

You need to be especially careful if you incorporate some functionality into your website, such as making an appointment or paying a bill. I recommend that if you have an outside party providing this functionality that you test the service yourself with a screen reader to make sure that the visually impaired can perform the function.

Defraying the costs

On a final and happy note: if your practice has gross revenues of less than $1 million, a provision in the IRS code allows you to take a tax credit of 50% of the cost of making your website accessible, up to a maximum credit of $5,000.10 This will make the task even more affordable. 

References

1. Nondiscrimination on the basis of disability. Accessibility of web information and services of state and local government entities and public accommodations. ADA. December 7, 2012 Accessed March 25, 2021. https://www.ada.gov/anprm2010/web%20anprm_2010.htm
2.Nondiscrimination on the basis of disability; Notice of withdrawal of four previously announced rulemaking actions. Federal Register. December 26, 2017. Accessed March 25, 2021. https://www.federalregister.gov/documents/2017/12/26/2017-27510/nondiscrimination-on-the-basis-of-disability-notice-of-withdrawal-of-four-previously-announced
3. Raizman D. Rusie JS. DOJ’s recent website accessibility letter reaffirms obligations while opening the door to a due process defense. Ogletree Deakins. October 26, 2018. Accessed March 31, 2021. https://ogletree.com/insights/dojs-recent-website-accessibility-letter-reaffirms-obligations-while-opening-the-door-to-a-due-process-defense/
4. Levy SD, Krezalek MS. A call for regulation: The DOJ ignored website accessibility regulation and enterprising chaos ensued. Law. November 9, 2018. Accessed March 31, 2021. https://www.law.com/newyorklawjournal/2018/11/09/a-call-for-regulation-the-doj-ignored-website-accessibility-regulation-and-enterprising-chaos-ensued/
5. Krezalek M, Taylor J. Website accessibility lawsuits update 2020. YouTube. July 28, 2020. Accessed December 3, 2020. https://www.youtube.com/watch?v=aFc3lqrCiPg
6. Burns S. This year’s website legal issue is not GDPR. It’s accessibility. Accessly. September 7, 2020. Accessed March 29, 2021. https://accessly.io/category/healthcare/
7. Grant J. 'Curve flattens' for ADA website-accessibility lawsuit filings, Seyfarth report says. Law. May 6, 2020. Accessed March 26, 2021.https://www.law.com/newyorklawjournal/2020/05/06/curve-flattens-for-ada-website-accessibility-lawsuit-filings-seyfarth-report-says/?slreturn=20210226152528
8. Web content accessibility standards. Wikipedia. Accessed March 30, 2021. https://en.wikipedia.org/wiki/Web_Content_Accessibility_Guidelines 
9. Bailey J. How much does it cost to make your website accessible? Story Collaborative. February 13, 2020. Accessed March 31, 2021. https://blog.story-collaborative.com/how-much-does-it-cost-to-make-your-website-accessible
10. IRS tax credits and deductions. ADA. Accessed March 25, 2021. https://www.ada.gov/taxcred.htm

DAVID A. HALL, DDS, AAACD, graduated with honors from the University of Minnesota School of Dentistry and ran a private practice in Cedar Rapids, Iowa, for many years. In 1995, he launched a website promoting his dental practice. After requests from other dentists for help with their websites, in 2009 he founded Infinity Dental Web, a marketing agency that does digital marketing for dentists. He may be contacted at (480) 273-8888.

About the Author

David A. Hall, DDS, AAACD

DAVID A. HALL, DDS, AAACD, graduated with honors from the University of Minnesota School of Dentistry and ran a private practice in Cedar Rapids, Iowa, for many years. In 1995, he launched a website promoting his own dental practice. After requests from other dentists for help with their websites, he founded Infinity Dental Web in 2009, a marketing agency that does digital marketing for dentists. Dr. Hall may be contacted at (480) 273-8888.

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