October 23, 2017
Health & Employment Alert
Health & Employment Alert
Author(s): Jill H. Gordon
The explosion of mobile health applications (apps) on the market brings potential accessibility issues—such as private litigants seeking to bring disability claims or regulators looking for headline-grabbing enforcement actions—to the legal landscape. Companies like Grubhub and various ride-sharing providers have all been hit with lawsuits alleging that their mobile apps violate the Americans with Disabilities Act (ADA) because they contain access barriers that make it difficult, if not impossible, for disabled individuals to use the apps. Moreover, the U.S. Department of Justice (DOJ) has recently stepped up its enforcement of the ADA regarding accessibility of mobile apps.
Noncompliance may not only result in costly litigation, but lead to long-lasting reputation damage. Once the DOJ is involved things can get even more complicated. Companies have been subject to measures that go far beyond merely implementing changes to the mobile apps. Indeed, to date, settlements, with the DOJ have required such things as retaining an independent consultant to provide a written evaluation concerning the mobile app and submitting reports to the DOJ every nine months detailing compliance and/or lack thereof with the settlement agreement.
All companies, particularly those that seek, specifically, to serve the disabled—such as health care providers—can minimize exposure to the tide of litigation and enforcement actions by immediately evaluating and expanding the accessibility of their mobile apps to individuals with disabilities.
Multiple federal and state laws may be implicated when web technologies are not equally accessible to disabled individuals. Most prominent among the federal laws are the ADA and the Rehabilitation Act of 1973. Titles II and III of the ADA require state and local governmental agencies and private businesses, respectively, to make their goods and services as accessible to individuals with disabilities as they are to those without disabilities. Section 504 of the Rehab Act prohibits disability-based discrimination and requires accommodations by federal agencies and any entity that receives federal financial assistance. Additionally, Section 508 of the Rehab Act bars the federal government from procuring electronic and information goods and services that are not fully accessible to those with disabilities.
While there are clear guidelines for making websites accessible for disabled individuals, the same cannot be said for mobile apps. The Health Insurance Portability and Accountability Act (HIPAA) provides guidance as to the collection, storage and transmission of protected health information on mobile apps, but does not address how such information on mobile apps can be made more accessible to disabled individuals. Neither does the Health Information Technology for Economic and Clinical Health Act (HITECH)—which was created to stimulate the adoption of electronic health records and supporting technology in the United States. The problem is further exacerbated by the DOJ’s decision to delay the publication of its proposed rules regarding website and mobile app accessibility until 2018—eight years after the agency began the rulemaking process.
Despite the absence of formal rules, all signs point to WCAG 2.0 Level AA (WCAG 2.0) as the likely standard to use when working to improve the accessibility of mobile apps. WCAG 2.0 is published by the World Wide Web Consortium (W3C), an international community of organizations that develop protocols and standards for the World Wide Web. It is a comprehensive set of technical specifications and techniques to make web content more accessible to people with a range of disabilities.
The DOJ has used WCAG 2.0 as the standard for making mobile apps accessible to persons with disabilities and ADA-compliant in its settlements and consent decrees with various organizations. In addition, WCAG 2.0 is the standard that is contemplated under the Affordable Care Act (ACA). Section 1557 of the ACA requires “covered entities” (i.e., health care providers, health plans and clearinghouses) to ensure that health programs and services provided through Electronic and Information Technology (EIT) devices and systems 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. Although Section 1557 regulations do not require conformance to a specific standard, the Department of Health and Human Services has stated that covered entities “should consider following the widely accepted industry standard for web accessibility in the [WCAG] 2.0.”
WCAG 2.0 does not specifically address mobile devices and applications, but its principles and success criteria are relevant to mobile applications. WCAG 2.0 guidelines include:
In addition to WCAG 2.0, the W3C has issued draft guidelines as to how WCAG 2.0 can be applied to mobile web content and mobile apps. Though not yet final, the W3C guidelines provide useful guidance:
The DOJ has made clear that it deems accessibility of mobile apps an integral part of ADA and Rehab Act compliance. All companies, health care providers and insurance companies in particular, should take proactive measures now to make their mobile apps conform to WCAG guidelines to avoid becoming targets of disability discrimination litigation, even as the law on mobile apps continues to develop.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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