Websites and The Americans With Disabilities Act - An Often Unrecognized Risk

Key takeaway

When most physical therapists think of the Americans with Disabilities Act, their first thought is presumably not related to a rehabilitation provider’s website. However, this particular area of ADA Compliance has recently become an increasing area of concern that must be acknowledged. Specifically, Title III of the Americans with Disabilities Act of 1990 (the “ADA”) requires “places of accommodation” be accessible to the disabled. Although the ADA does not specifically address websites, courts have seen an increase in the number of lawsuits filed against businesses claiming that their websites are not fully accessible to the disabled and therefore do not comply with the ADA.

The courts are split on how the ADA applies to websites. The 3rd, 6th, 9th, and 11th circuits have found that Title III of the ADA applies to websites with an associated physical store or location. The 1st, 2nd, and 7th circuit courts have applied a broader standard, holding that a place of public accommodation does not have to be a physical structure. In addition, the author of this post is aware of numerous circumstances in which businesses have been subject to mediation in an effort to resolve ADA website compliance matters.

While the courts are split, the Department of Justice (the “DOJ”) has long held the position that the ADA does apply to websites. Despite this position, the DOJ has continuously delayed publishing any proposed amendments to the ADA that would specifically address websites. In fact, the DOJ recently announced that any proposed amendments to the ADA would not be released until 2018. Website owners are therefore left with the risk of litigation without any real clarity or certainty as to how the ADA applies to websites and what specific set of standards should be implemented to ensure full compliance.

To reduce the risk of litigation, physical therapy providers and other businesses should take steps now to implement best practices and industry standards to improve accessibility to the disabled. These improvements should include compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 AA at a minimum. https://www.w3.org/WAI/intro/wcag These improvements should be made not only to traditional websites, but also to mobile applications. Website owners should also periodically audit any enhancements or improvements that are made to ensure continued compliance.

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Paul J. Welk

Paul is chair of Tucker Arensberg Attorneys Health Law/Health Information Technology Industry Group and focuses his practice on corporate and healthcare law. In this capacity, he represents physical therapists, physicians, dentists, not-for-profit organizations, professional organizations and other business corporations and entities. Some of the recent transactions and clients he has worked on include the representation of: Multiple state physical therapy professional associations on a variety of issues Multiple physical therapy private practices with development and implementation of ownership succession plans A venture capital company with the $13 million dollar stock acquisition of a target company Multiple physical therapy providers in successful third party payer appeals Multiple buyers of the assets and associated real estate of dental practices Multiple physical therapy providers regarding the transfer of partial ownership interests and the negotiation of governance and shareholder documents Multiple physical therapy providers with asset and stock acquisitions and divestitures A manufacturing company with the successful negotiation of a shareholder dispute and stock purchase A service provider with negotiation of a $5 million annual service contract A publicly traded company regarding the merger of two wholly owned subsidiaries Two publicly traded companies regarding the ongoing review of distribution, supply and service contracts A seller of a skilled nursing facility and related real estate Multiple regional rehabilitation provider networks on a variety of issues, including formation and ongoing operations A large physician practice in its sale to a health system Areas of Practice: Business and corporate law, health law, mergers and acquisitions Articles and Presentations: Paul regularly lectures and writes on topics related to business and healthcare law and is the founding author of Legal Impact, a regular column in the American Physical Therapy Association Private Practice Section’s Impact Magazine. Memberships and Activities: Paul is a member of the American and Pennsylvania Physical Therapy Associations and past Chair of the American Physical Therapy Association Committee on Risk Management and Member Benefits. He is also a member of the Bloomsburg Medical Supply Ethics Committee, the Duquesne University School of Physical Therapy Advisory Board, the Pennsylvania Bar Association, and the American Health Lawyers Association. He is an adjunct instructor at the St. Francis University School of Physical Therapy and a licensed physical therapist in the Commonwealth of Pennsylvania. Jurisdictions: Paul is licensed to practice law in Pennsylvania. Education and Background: Paul received his Bachelor of Science and Master of Physical Therapy degrees with honors from Duquesne University and his law degree with honors from the University of Pittsburgh. He served as associate editor of the University Of Pittsburgh School Of Law Journal of Law and Commerce and received the CALI Excellence for the Future and Esther F. Teplitz Awards for academic performance in the health law curriculum. Paul is a graduate of the University Of Pittsburgh School Of Law’s Health Law Certificate Program.