What practices need to know about digital accessibility requirements

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Earlier this spring, the U.S. Department of Health and Human Services (HHS) issued a pivotal rule titled Discrimination on the Basis of Disability in Health and Human Service Programs or Activities. This regulation mandates that health care organizations that receive federal financial assistance ensure their website content and mobile applications are accessible to individuals with disabilities. Specifically, recipients must comply, with very limited exceptions, with the Level A and Level AA success criteria and conformance requirements specified in the Web Content Accessibility Guidelines (WCAG) 2.1 by May 2026 (for organizations with 15 or more employees) or May 2027 (for organizations with fewer than 15 employees).

The impacts of this new rule are far-reaching, affecting a wide range of entities that receive federal funds, such as hospitals, health care providers participating in the Children’s Health Insurance Program, Medicaid and Medicare programs, and state and local human or social service agencies and nursing homes receiving federal funds. According to HHS estimates, 100% of hospitals and 92% of doctors will be subject to these new rules.

With one in four adults in the United States living with a disability, the need for accessible health care websites is more pressing than ever. Ensuring your digital platforms are accessible not only meets legal compliance mandates but also significantly improves patient care.

Examining the current legal landscape for health care

Unfortunately, the current state of digital accessibility in health care is lacking, with many health care websites failing to meet basic accessibility standards. Earlier this year AudioEye scanned over 90,000 health care web pages, finding an average of 84 accessibility violations per page, such as missing alt text, keyboard traps, and unlabeled buttons. Each violation poses a potential barrier for individuals with disabilities, which can hinder access to essential health information and services.

The requirement that websites and mobile applications be accessible is not new. The U.S. Department of Justice (DOJ) has consistently taken the position that all the services, programs, or activities of state and local governments (entities covered by Title II of the Americans with Disabilities Act (ADA)) and businesses open to the public (entities covered by Title III of the ADA, commonly referred to as “places of public accommodation”) must have accessible websites. Prior to the new HHS rule, the Civil Rights Division of the DOJ entered into multiple settlement agreements with major corporations such as Hy-Vee, Inc., The Kroger Co., Meijer, Inc., and Rite Aid Corporation to ensure that individuals with disabilities can access COVID-19 vaccination information and scheduling tools. Other high-profile cases involving private litigation against large health care organizations with respect to digital accessibility include those against HCA Holdings; Tenet Healthcare; and, most recently, Labcorp.

It is also important to understand that these lawsuits do not just target large organizations. In 2023, nearly 2,800 website accessibility lawsuits were filed in federal courts, and the number of state court filings may be similar or even higher. Many plaintiffs in these cases are known as testers — individuals who may have minimal or no actual relationship with the businesses they sue but who test websites for accessibility compliance — and smaller health care businesses are often the target. As an example, the California Medical Association has warned physicians about the risk of website accessibility lawsuits targeting small and solo medical practices.

Further, if your practice is sued, it is unlikely that you will be able to hold the company that built or hosts your website accountable. Due to the uncertainty in the accessibility space, many website providers contractually limit — or even completely disclaim — their liability for digital accessibility claims.

The bottom line is clear: Your website needs to be accessible, and you cannot always rely on your website provider to ensure compliance.

The best protection against potential digital accessibility lawsuits: having an accessible website

The best protection against these lawsuits is, simply, to have an accessible website. The WCAG, established by the World Wide Web Consortium, provide a comprehensive set of standards to ensure digital content is accessible to everyone, including individuals with disabilities. The principles underlying these guidelines are as follows:

• Perceivable: Information and interface components must be presented to users in ways they can perceive.
• Operable: User interface components and navigation must be operable with various input devices, such as a mouse or a keyboard.
• Understandable: Information must be understandable to all people regardless of ability, often written clearly and simply.
• Robust: Content must be robust enough to be interpreted reliably by a wide variety of user agents, including assistive technologies.

For health care organizations that have never considered digital accessibility, this new rule can seem overwhelming, but understanding these regulations and taking proactive steps to ensure your digital assets are accessible and compliant can help protect your practice from potential legal risks and improve your patients’ digital experience. Here are a few places to start:

1. Use alt text for images: Including alternative text for nondecorative images helps visually impaired users understand the content through screen readers. This is particularly important for images that convey essential information, such as diagrams or charts.

2. Limit the use of tables: While tables can be useful for presenting data, they can be challenging for screen readers to interpret. Use them sparingly and ensure they are simple and properly labeled, and that the reading order makes sense when linearized. If complex data presentation is necessary, consider alternative methods that are more accessible.

3. Provide clear labels for links: Links should have descriptive text that clearly indicates their destination or function. Avoid generic labels like “Click here,” which can be confusing for users relying on screen readers. Instead, use specific descriptions like “Read about our services” or “Contact our office.”

4. Implement automated accessibility solutions along with expert reviews: Leveraging automated tools can help continuously monitor, identify, and remediate accessibility issues on your website. These solutions, in addition to expert reviews of a website, can provide ongoing compliance with the latest standards and regulations, further reducing the risk of legal action.

By taking proactive steps now, you can help protect your organization from legal risks, provide better care and services to patients, and comply with the latest regulations in the health care space.

James Spolar, JD, is the general counsel and corporate secretary of AudioEye, where he brings over 20 years of experience in the legal field. He has an extensive legal background with a focus on commercial and corporate transactions, M&A, SaaS, public company corporate governance, regulatory, IP litigation and other chief legal officer experiences. His background includes senior legal roles at iMedia Brands, Life Time, Medtronic, and IBM. He began his career at AmLaw 100 law firm Dorsey & Whitney, has a B.A. in accounting, and is a certified public accountant.