Practice Website Accessibility: Is Yours Risking AwDA Litigation?


“C


lick by” lawsuits based on violations of the Ameri- cans with Disability Act are being targeted at dental practices in increasing numbers. Learn what makes a website accessible, your role in compliance and


how to reduce your risks. Even the most skilled and seasoned dentists face professional liability claims. But how would you feel if a lawsuit were filed by someone who wasn’t a patient — or who hadn’t even driven past your office doors?


Litigation based on violations of the Americans with Disability Act (AwDA) has expanded to include not only physical barriers but also digital accessibility. In addition to “drive by” lawsuits focused on physical barriers to access issues, “click by” lawsuits are being filed, targeting office websites that are not accessible to those with hearing, vision or learning impairments.


ARE DENTAL PRACTICES AT RISK?


“Click-by lawsuits against dental offices have been on the rise for the past few years” said Mark R. Gibson, an attorney specializing in de- fense of healthcare providers. “Indeed, these website lawsuits tripled in volume between 2018 and 2020 and have been trending upward ever since.”


Gibson noted several reasons for the increase. “Recent legal prec- edents have made it easier for plaintiffs to sue even in the absence of a doctor-patient relationship. There’s the fact that liability can be based on a single minor technical violation and of course, the existence of significant financial incentives for plaintiffs and their attorneys.”


Most dentists and other small business owners earnestly want to comply with well-intentioned AwDA legislation; however, it contin- ues to be exploited for financial gain by predatory plaintiffs.


WHAT MAKES A WEBSITE COMPLIANT?


It’s complex. For non-governmental organizations, there are no regulations that detail web content compliance standards. Businesses like dental offices, which fall under public accommodations require- ments (Title II and Title III), must have websites that offer “reasonable accessibility” to people with disabilities. The courts generally refer to a set of industry standards — Web Content Accessibility Guidelines (WCAG)¹ — which can be quite stringent. These criteria include, but are not limited to:


• Alternative text for images and non-text content. • Video closed captioning for the hearing impaired. • Proper structure to work with screen reader technology. • Color contrast and text sizing to facilitate readability. • Predictable page order and understandable navigation. • Ability for users to avoid or correct input mistakes.


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WHY ARE DENTAL OFFICES BEING TARGETED?


Simply put, finding noncompliant websites and filing litigation is too easy due to several factors:


• Those looking to file suits for profit can browse through hun- dreds of websites from the comfort of their computers.


• Dentists aren’t expected to be web experts nor have web content that’s updated as often as e-commerce businesses, so their sites are less likely to be accessible.


• No prefiling notice is required; this means dentists don’t have the opportunity to make the changes needed to comply. Plaintiffs and their legal firms are often simply seeking payment — not fixes.


Minimum damages for a first offense are $4,000 and can multiply for every site revisit. In addition, a successful plaintiff can recover their attorney’s fees—which can run into the tens of thousands. You may have personal liability for these amounts if not covered by your busi- ness liability insurer.


Because these suits can come without warning, the best defense is to be proactive in auditing and regularly updating your website.


HOW CAN YOU REDUCE YOUR RISK?


The good news is you don’t have to be an expert in web accessibility standards or know how to code them. As a practice leader, your role is to ensure that the individuals or companies you hire to build or update your website are both aware of the accessibility standards and


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