Webinar video and transcription discussing online accessibility in the elective medical field

Website Accessibility and the Recent Tsunami of Lawsuits: Here’s What You MUST Know Now

Website accessibility lawsuits against medical clinics large and small are exploding. According to one 2020 study, as many as 98% of clinics may be vulnerable to financial loss.

In our latest webinar, moderator Karen Zupko of KarenZupko & Associates, Inc. and industry experts Etna CEO Ryan Miller, Jeff Segal of Medical Justice, and Michael Sacopulos of Medical Risk Institue explore the legal arguments for today’s online accessibility claims and the technical implications for serving the disabled community online while decreasing your risk of successfully being sued.

Webinar Transcription:

Karen: Hi, I’m Karen Zupko and it’s my pleasure to welcome you to this afternoon’s webinar on website accessibility and the recent tsunami of lawsuits. We’ve got an outstanding group of speakers today. Ryan Miller is the founder and CEO of one of the aesthetics industries most well-regarded marketing firms, Etna Interactive. Popular speaker and author, he shares over 20 years of experience with you today in this important topic.

Mike Sacopulos is an attorney, he’s the founder and president of the Med Risk Institute, welcome Mike, and Dr. Jeff Segal who will be our first speaker is the founder and CEO of Medical Justice. Dr. Segal is a neurosurgeon by training as well as an attorney. In the process of developing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on a whole variety of health care issues and Dr. Segal is also a partner at ByrdAdatto, a national business and health care law firm so, with that take it away.

Jeff: All right I think Ryan is going to set the stage shortly but the reason we’re here today is because we have received many phone calls of new defendants, people who auditioned for the role of being a defendant. Nobody wants to be a defendant but they’re on the receiving end in the crosshairs of litigation related to the Americans With Disability Act and its state equivalents. The ADA law was implemented decades ago and many in healthcare have been caught in the crosshairs, but recently people’s websites are being caught in the crosshairs so I think these are some of the near-term challenges that that we’re dealing with.

I just want to point out if you have questions, if you pose those in the little box on the right in your go-to webinar screen we have allowed plenty of time to answer questions.

Alright so the tsunami is here I cannot tell you the number of phone calls I’ve received, Ryan has said he’s received a number of phone calls, anybody in the healthcare liability business, Mike you’ve received phone calls, we’re all receiving phone calls saying what’s going on here. I’ve had a website for a long period of time, almost everybody I know can read it, can access it, many people have tools to be able to dig a little deeper but for the most part this looks like a cash crunch, or people going after the the physicians for just because they are looking for cash. So we’re calling this an epidemic of ADA lawsuits with doctors in the crosshairs.

Let’s go back down memory lane and let’s talk about the ADA act as it relates to people in healthcare. There was a supreme court case over 20 years ago called Bragdon vs. Abbott and here, it had nothing to do with a website, but it was a dentist who got sued. Why? He took care of a patient who was HIV positive and he said look I’m concerned, I don’t want to put myself or my staff in harm’s way because if something happens to me, if I get stuck with a needle, it would be a problem. So he said let’s do this not in my office, we’ll do this in the hospital, and by the way I’m not going to charge you any additional money for the professional fee, but you probably will incur additional charges because we are performing this in the hospital.

Well the patient predictably did not care for this and filed the lawsuit. This went all the way up to the U.S. Supreme Court and what did they determine? They determined that the doctor was unreasonable and did not use objective information to support his conclusion. His point was that yes you did indeed discriminate against this particular patient because if you use universal precautions, which was recommended at the time by the Center For Disease Control, you really should not be at any increased risk, and by the way how many of your other patients that you don’t test may be HIV positive? So I think this was not an entirely unreasonable conclusion from the U.S. Supreme Court.

Now let’s compare and contrast that with Mauro vs. Borgess Medical Center. This was an appellate court case, it did not work its way up to the U.S. Supreme Court and it does suggest that there are cases that end up on both sides of the of the balance here. So in this particular case, this is an employment law case, here a scrub tech his last name was Mauro was also HIV positive and he was terminated because they said that his role being in the operating room as an HIV positive individual could place patients in harm’s way. So he did admit under deposition that he occasionally did place his hands in the wound, not surprising he is of course a scrub tech, and he also admitted that occasionally his gloves tore, that’s no surprise every surgeon’s glove will tear at some point down the road. So the court concluded that if this actually occurred even if it is uncommon it could turn into a death sentence for the patient. The appellate court said that this was objective information and the medical center was within its rights to go ahead and let the employee go and they were within their rights to do so.

So now we go from people in the workplace or patients in an office to websites, and the question is whether websites are considered places of general accommodation because this is going to be the buzzword in terms of getting through the door to go ahead and sue someone. You have to determine that a website, according to the ADA, would be a place of or in public accommodation. We’ll talk about this going forward.

This is a real lawsuit that one of our clients received recently, and apparently this is a repeat offender, this plaintiff is suing multiple people alleging somehow they can’t get the information they need from a plastic surgeon’s website to make an informed decision. What type of information were they looking for? Well testimonials that may not have had proper closed captions so they could read it, and they not only go after the Americans With Disability Act but they also reference a state act the Unruh Civil Rights Act, and many states have an equivalent analogy.

So here I’ve circled the defendant in this case, the plastic surgeon is a public accommodation within the definition of the title, but really they’re basically saying the defendant’s website is a public accommodation and this is kind of the new stuff. I mean before it was the office, the office itself didn’t have the proper ramps, the proper handles to keep people from falling down, making sure the mirror was the proper distance above the sink in the bathroom, and so on and so forth. That stuff has been litigated for decades now but the lawsuits related to websites that is new material.

Alright so things that start on the west coast happen to percolate frequently across the country, what starts in California often works its way across the country and this is a ADA website case that was in the 9th circuit 2019, and so the 9th circuit includes California, Oregon, Washington, Hawaii, Alaska, and a few other states and so on and so forth. But here’s what they ruled, they ruled that the ADA applies to services of a public accommodation, of a public accommodation not services in a place of public accommodation, meaning if you went into Dominos and somehow they didn’t have facilities that would accommodate someone with a disability that would be in a place of public accommodation, but the ninth circuit said it’s really of accommodation. You know it’s amazing how one little word can make so much of a difference, but anyway the bottom line was that people were struggling on the website and the app to go ahead and order and pay for pizza and Domino’s knew about the Americans With Disability Act. Accordingly their website was not compliant, plaintiff wins, the person who tried to access domino’s website, won their case.

But that is not where the story ends, the story has additional chapters in it and this is recent news. We go from the West Coast to the East Coast and this is the 11th circuit which includes Georgia and Florida and they said we don’t agree with California. Somebody was trying to sue Winn-Dixie because of their website, and certainly most Winn-Dixies do not look like the picture that I’ve presented on here although many of the cars may actually be the same ones that are out there.

But this was a similar case regarding the website and they said we actually find the conclusion to be the opposite of what took place in California. We do not believe that the website is a place of public accommodation and it did not create a barrier, that people with disabilities are still able to use Winn-Dixie’s facility, and the defendant in this case Winn-Dixie wo. So completely opposite outcome compared to what happened in California in the ninth circuit.

So you must be asking yourself well where do I live, do I live in the 9th circuit or the 11th circuit, and if I don’t live in any of those circuits what does that mean to me? Alright so I’ve thrown up the map and unfortunately I don’t have Hawaii in this map but Hawaii’s in the ninth circuit. But the bottom line is there are many circuits across the country the 9th circuit has spoken, the 11th circuit has spoken, but every other entity, every other appellate court has not spoken, silent. We don’t know whether they’re going to lean towards California, we don’t know if we’re going to lean towards Georgia, what the outcome will be, and so we’ll just have to wait and see. Now that does not mean that cases are not being filed in any of these geographic regions in the country, in fact I can guarantee you cases are being filed in these parts of the country. How do I know that? Because Ryan told me, Ryan told me he has cases of people in the second appellate, second and third and there are probably others that when we’re done here you’ll pick up the phone call and go what about me, I’m on the receiving end.

So the bottom line is, and this is just a you know a legal description, when there’s a split in terms of the law between various appellate circuits, that’s right for going up to the U.S. Supreme Court to adjudicate the differences and to harmonize the law so everybody can make predictions. I mean for something as important as this, namely website and accessibility, it would be nice to harmonize the law across the country because they’re relying upon a federal law. The Americans With Disability Act is a federal law so it would be a good idea I think for the supreme court to ultimately interpret what the law means as it relates to websites. With that let me just pass off the baton to Ryan here.

Ryan: Thanks Jeff for that, the thing I think it’s important for everyone to understand coming away from what Jeff just started with is that there is not a specific set of legal requirements that you are held to today. There is no law explicitly mandating and in fact what’s opened the doorway for these lawsuits to come to be is this gray area of interpretation where plaintiffs and the attorneys that are representing them are pointing at businesses and saying look we believe that the interpretation is that your website will eventually be found to be a place of a public accommodation, and therefore will be held to the equal access requirements of the ADA’s section 508 Title III, and so we’re proactively going after you. Some cases there are some people I think are bad actors they’re just in this for the money but the bigger point is, and I think it was really brought to a head during the height of the pandemic, is that we rely more than ever before today on the web and that for individuals that with disabilities the web is actually a very hard place to function. This movement, and I believe it will be a movement that ultimately at a federal level here in the United States, it’s actually already federalized in Canada, that there will be a movement towards defining the web as a place where businesses need to provide public accommodation. If you think about it today you probably pay your bills, or got your groceries during the pandemic, or ordered some significant portion of the meals that you ate directly through the internet and if you weren’t able to do that whether on an app or on the web, that would be a really big problem for you or a member of your family.

You know as the gentleman both highlighted here that already if you’re in the United States you are already at risk, just a quick nod we know that we’ve got some folks from Canada who are joining us on the call today, in Canada it is province by province and it is an explicit mandate for compliance against the body of code that we’ll be talking about although not all of the provinces have yet had their date where their requirements have started. The requirements when they do come up, when a law firm today takes a plaintiff case, they file a suit against you, and say you are not conforming, you’re not creating an environment of equal access on your website, what are they checking? Well explicitly there is a set of technical requirements that have been articulated by an independent third-party organization called the W3C, it’s specifically referred to as the WCAG, to make things super confusing for you there are multiple versions and multiple levels.

The version that has been most often cited in the litigation that we’re aware of here in the United States today, it’s also the version that is the law of the land in those provinces that have already implemented in Canada is Version 2.0 Level AA. This is the technical benchmark that’s being used. Now what’s worth noting is back at the end of last year in October of 2020, federal legislation was proposed that died, it was never passed, that established that businesses needed to be substantially conformant, who defined substantial, with this specific body of technical requirements. Now what’s important to understand is that the WCAG 2.0 Level AA has 38 separate requirements into which you might go oh no big deal 38 things I can go check 38 things. It’s 38 separate requirements on every page but more explicitly when we look at any one of the requirements, so this is 1.1.1 it addresses your non-text content so those might be things like the images on the page, the videos that you offer, for those of you that are active in podcasts the podcast that you publish, your PDF files. Those elements are non-text elements of your website. Well let me show you, let me open up we have that little blue arrow there, let me show you what it looks like if we open and expand that to reveal all of the pieces separately that constitute conformance with that one requirement. So it’s about seven separate requirements inside of this one item so that 38 items is actually over a hundred separate logical tests that need to be conducted on every page of your website to establish conformance.

You know a really simple one that’s on here many of you are familiar with the idea of Captcha, right sometimes it’s a strangely presented warped body of text with lines through it, or other times you’ve experienced Google Captcha where it says you pick all of the images that contain fire hydrants. It’s a simple requirement, those are graphical elements or non-text and it’s the requirement that those Captcha, the tests that are implemented before forms can be submitted, are presented in ways for people who have visual or auditory disabilities. So it is that granular that these tests need to be run.

As we step back and we say okay well wait a minute what are the implications for the web, the ADA was passed back in 1998, but as Jeff pointed out it’s only just now that we’re starting to see litigationand that’s what’s bringing attention to this, not an explicit legal requirement.

There was a test done at the end of last year and what was found was that the vast majority of sites, 98% of all sites had at least one WCAG 2.0 failure on just their homepage, you didn’t need to go any deeper to run the test. So what do we do right so how do we actually get conformant to mitigate the risk? There are two different approaches, they both have some significant downsides so let’s talk about both of them.

One are what are called accessibility overlays and for most of you this is probably going to be the option that you choose. The second is manual conformance, so being clear here we intentionally, in our organization, we don’t use the word compliance because there is no law against which we can comply. It’s the idea of substantially conforming to that WCAG 2.0 level AAA checklist.

So what is an overlay? We’ve probably seen one and may not have realized what it was. You’ll notice in the lower right corner of the screen there’s the little blue circle with that universal symbol for handicap or disability, right the individual in the wheelchair, we click that we expose it, and we’re presented with a variety of tools. Things that might change the contrast on the site, allow us to use a screen reader to have the website read to us, to limit or inhibit flashing, right for people with seizure disabilities flashing or fast movement on a website actually can cause seizures. We’ve got all these tools that are meant to adapt the site for individuals with different disabilities.

There are benefits and there are risks. The benefits are these: they’re fairly inexpensive, for sites that are less than a thousand pages they’re less than 500 a year, there’s even some free ones out there although those have problems that I’ll highlight in just a second. They’re fast to deploy, you can usually get them up on the site in a couple of hours. They do offer some future proofing, the one that I just showed you on the screen actually uses artificial intelligence so that if a member of your team, let’s say they publish a blog with a photo in the blog but they forget to put text behind that image describing, it’s called alt text, describing what the image depicts, suddenly that single image is now a liability and these overlays use artificial intelligence to look at and analyze the content of the image and to create spontaneously from a computer what they think the image contains as a way to protect you in the future should that liability kind of find its way into your website.

Some overlays offer various levels of legal support. Things like making a video to show all the different ways that you conform that you can use in your defense to providing a time record of when and how different accessibility conformance updates were deployed. The risks here is that they don’t actually fix, these overlays are a little bit like putting lipstick on a pig, they don’t actually change the entity underneath. A website that is not conforming to the requirements will still be non-conformant, and in some cases and we’ll show you in a second there’s some pretty aggressive criticism that they actually make the web harder to use for individuals with disabilities. They do not address all of the accessibility concerns that are out there, and specifically what they can’t do is add closed captions to your videos, they can’t take a PDF file that contains non-machine readable text, so that’s like a scan of a media appearance right let’s say you were covered in a newsletter article a newspaper article or a magazine article, you put it on your scanner and you scan that, that’s a picture of text that can’t be read by someone who has a disability and so it’s not going to fix that as well as a couple of other points.

In addition to that, and this is one of the ones for us that technically slowed our rush to find the right disability overlay or accessibility overlay, was that most of them dramatically slow your site performance especially for mobile users. You may or may not be aware but over the next couple of months Google is preparing to release something called their Page Experience Update which directly links your search engine rankings to how fast your mobile site performs. On average what we found on a hundred point scoring scale most disability overlays were subtracting 30 points from that score which is potentially damning for search engine rankings.

So the big picture here, let’s say we implemented an overlay does it actually protect me from getting sued? Because most of these suits aren’t actually making it to court. As the gentleman can attest most of them are being settled because it’s easier to pay someone off than to pay to litigate once that case is brought against you. And what the overlays cannot do is they can’t stop the suit from being levied in the first place. In fact there’s quite a bit of evidence that in fact suits continue to be filed even on sites after overlays are implemented.

So we’ve done a bunch of testing, we grabbed a handful of the most popular overlays, we ran them through for the feature set analysis how much and how many different disabilities do they cover, and the performance hit how much do they impact the site speed at the end. We landed on this one this is a bit of a free recommendation for everybody that’s on the call it’s called accessiBe, it does come at a fee, we don’t receive any compensation if you choose to use this on your site, but I will share the results of that testing because we believe this is probably going to be the best option for those that choose overlays.

But here’s the full disclosure on this, it doesn’t matter which one of the major overlays you pick they are all named by name, and at least one major piece of media coverage out there as being a bad thing for the disabled community. Why? it’s because it’s not actually encouraging businesses to build accessible conformant websites. It’s taking a shortcut with the hopes of quickly deterring the lawsuits that are coming in but not fixing the underlying problems.

So if you choose to do this path, you set an account with a service like accessiBe or whichever one you choose, there are others that are free, you install the software on the website, then there’s the checklist of all of these different things that you have to fix manually, and your overlay, if it’s a free one they’re not going to tell you what they don’t cover. The services that are out there that come with a fee provide a secondary checklist to guide you through things that you might want to check on your own, but they don’t certify it so you’ve got to take care of that yourself or trust that you’ve got a good agency partner that will be diligent in addressing those issues.

What do they cost? Well it’s typically less than eight hours, it might be a little bit more if you’re someone with hundreds or thousands of videos, lots of media content or a podcast, but typically less than eight hours of media time, of agency time rather, to get it configured, get it installed, and check on all of those things that aren’t being covered by the overlay, and they range anywhere from $40 to $140 a month. They’re more on very large sites so if you’ve got a site that’s more than a thousand pages that’s where you’re potentially going to see some higher monthly charges.

Now manual conformance, so in the light of all that I’m sure you come back and say well wait a minute why don’t we just fix these underlying problems, that’s morally or ethically the right thing to do, and the honest answer is it’s the cost. It’s why in Canada their legislation actually exempts business with fewer than 50 employees because they’ve realized it would actually be a significant financial burden to do this.

So the manual approach is an audit, right I highlighted that there’s more than 100 separate logical tests that need to be run against each of the pages of your site. Most commonly it’s run against a representative set of pages, anywhere from 8 to 20 pages of the site are selected that are representative of other similar pages, so for example maybe you only test one of your photo gallery cases if you’re in aesthetic medicine, but all of your other cases are assumed to be roughly the same. Once that test is done you prioritize and select which updates are you actually going to be able to afford to do. You decide if you’re going to do an overlay at the same time as insurance for yourself and for your practice, and then you customize and publish this thing called an accessibility statement.

Why didn’t I mention that accessibility statement up above? Well because the overlay products that are reputable like that one is mentioned, accessiBe, they actually include the development of the accessibility statement for you, or if you’re doing the manual approach you’ve got to do it yourself. Then you’ve got to cross train every person who contributes to your website to ensure that they understand what needs to be done differently as you go into the future so that you don’t accidentally introduce a single element that essentially creates again the liability for you and makes your site non-conforming because of that one change. What does that manual effort cost?

The audit alone, just the process of having an expert body come in and look at your website, assess what it would take to get you to the place of conformance, is typically a $10,000 to $14,000 effort. For that some will actually certify you at the end of a multi-stage process, then you’ve got to go through and do the code and content enhancements on your site, those can be equal or greater than the actual assessment costs. So you’re probably looking at a minimal effort, a minimal cost for the effort to conform that’s closer to $20,000.In some cases more expensive than your original website development cost.

Now maintenance and social media are also considerations so I want to touch on both topics briefly. The accessibility effort, the thing that you have to understand is it’s not a one and done. In many cases I would say it’s probably fair to think of it like the re-certification or the maintenance of certification for your operating center. You have a big moment in time where you get everything certified, you prepare the binders, you train the staff. You then have that ongoing responsibility to maintain compliance so that you don’t have complaints brought against you during your course of operations and then you have to re-certify at some point down the road.

How could something like this happen, a single moment in time undo everything? Let’s run through a quick hypothetical: Let’s say that you have videos that you’ve produced and you’ve adopted the practice of first publishing all of your videos to YouTube, and you’ve enabled on your YouTube channel automated closed captioning. YouTube has this service where it’s a setting on your channel, you turn it on, and it automatically adds that closed captioning text for you. You don’t even need to take the time to do it yourself. Then your protocol is you embed the video from YouTube onto your website and that ensures that it has the closed caption. There’s a problem. About one in every 80 videos that you upload to YouTube for some unexplained reason just won’t get the closed captioning, even if it’s turned on your channel. But your protocol doesn’t call to wait before publishing to check to make sure that those closed captioning appear, you add it to your website and boom just like that, there’s a video without closed captioning and that’s enough to precipitate a lawsuit. That’s the risk that we’re facing inside this environment.

Now where are you most likely to get sued and we’ve seen a variety of website accessibility lawsuits from both coasts, I’m only aware of one in the middle of the country that I’ve heard about so far, and they are largely focused on these areas. Websites that, for the way that they were developed, limit the ability of the user to use the tab or keyboard to navigate the pages of that website. Right so this would be for someone who relies on keyboard controls because they can’t readily operate a mouse, relies on keyboard controls to move through your site, if they can’t get to your pages it’s seen as being inaccessible. If they can’t understand the content of your images.

Now I mentioned before what alt text is, it’s a abbreviation for alternative text for people who are visually impaired and it’s text that is read out loud by the software as it moves through the body of a page. Similarly closed captions on video content or full transcripts associated to things like audio files and podcasts need to be offered. Now the last of these areas where we see major risk and I’m aware of at least two lawsuits where I’ve seen this referenced are PDFs that contain non-machine readable text, and the example I gave you earlier was that you were covered in a magazine, you set it on the bed of the scanner in the office, you took that scan, but you didn’t use what’s called OCR or object character recognition to create a transcript, you published it on a media page, someone can click and open it and it’s visually available but it’s not available to the visually impaired and on pages like that we actually need to offer a full-text transcript on a page below where we link to that PDF. These are the kinds of things that are most likely to get you and your clinic in trouble.

Now we get questions all the time, but what about social media and I don’t think Jeff or Mike, I don’t think you’ve seen this yet, I’m not aware of any lawsuits there, I would say this is a low risk but we’ll take a moment since we’re on the line just before we wrap up to just touch on this point. If you think about it what they’re concerned with largely is equal access. If you publish an image or a video, and the good news is that Facebook and Instagram, they’re owned by the same company, they automatically close caption videos that you publish there.

If you publish a video they want equal access we’ve got that covered, but if you publish an image there’s no part of the service where you actually can do the equivalent of alt text on either platform today. I suspect this will probably change and so we need to ensure that any image that goes onto a social media platform like Instagram has text with it that would allow me to gain essentially, the substantially, the same content or same experience that’s contained in that image, and that might influence or change how you post on social media, and if you’re using newer novel platforms, there are new platforms in social media that that emerge at least twice a year, make sure that any video that you’re posting there is automatically being closed captions to limit your liability now and into the future, and if you are sharing files or linking to files through social media be sure that those files contain text that’s machine-readable. Machine-readable, the way to know that is you can place your cursor and click, if you can highlight individual letters in words, the screen reader or the software reader will pick that up. If you can’t it means it’s a picture of text and that’s a problem.

So what now, what do we do? You have a choice to make right, you’ve got that that high road or low road. Do you want accessibility conformance that’s driven through the overlay, a little bit of a shortcut, some specific risks or pitfalls that come with it, or do you want to go the route of manual conformance? Either way it’s a conversation that you need to be having with your agency partner and you probably need to be having it right away because these lawsuits are only accelerating they’re not diminishing.

What we see as a comfortable third option for those that choose the manual conformance path because that will take time, is you might want to choose to combine the two approaches if your end goal is ultimately to be manually conformant.

Now what if in the interim you happen to get a letter? Now the first thing you need to do is assess applicability. We’ve seen at least one letter in which the specific assertion was just wrong and it was a simple matter of having the technical team advise the legal team so they could respond back and say hey there’s no basis for this you’re wrong in your assessment.

In the event that that’s not the case you need to seek help so I think maybe Mike and Jeff when I wrap up here it’d be good for you guys to talk about the connection to a conversation with your insurance agency, but bring in your legal team, bring in your agency or your technical team and share with them the copy of the letter because they, we will need to see that exact text because there is always an explicit assertion and your conversation should be both about how do we fix this immediate issue that’s raised by the plaintiff and then once we’ve addressed the crisis let’s mitigate the risk.

What other risk factors are out there, let’s go back and have that conversation about conformance in an approach. Your attorney is probably going to acknowledge the letter so that the plaintiff’s team understands what you’re doing, you’re going to execute some kind of remedy and communicate that back, and you know I would say as a final thought here, the reason why we’re in the position we’re in is because we’re in a kind of legal gray zone where the ADA says, it talks about the idea of public accommodation and we have varying circuit courts that have different opinions about whether or not your website is a place of public accommodation, and we have plaintiff’s attorney who are using the gray zone, the lack of a clear federal guideline about whether or not who needs to comply and to what level, they’re using that gray zone as a vehicle to open lawsuits and in many cases achieve settlements even though the broader goal I believe is really about creating a web that’s more accessible for everyone.

So on that maybe Mike or Jeff do you want to talk a little bit about the intersection should they receive a letter with insurance and then Karen let’s hand that back to you for any Q&A.

Karen: I want to encourage people to please post your questions I can’t believe that some of you are like me not like me scratching my head wondering who could post and a whole series of things are racing through my mind. Let’s hear your questions, please post in that question box.

Jeff: I want to first start by throwing a question to Mike because there are there are two forks in the road. You either get a demand letter from an attorney or you get a lawsuit from an attorney or from the courts, but ultimately the plaintiff attorney has popped it forward. Those are two different dimensions and you’ve certainly seen similar types of actions with things like copyright or privacy violations where there are so many gray zones and I remember a number of our clients getting a demand letter from a plaintiff saying hey look you stole the images from our website etc., give us $5,000 or $50,000.Now those are two entirely different paths that youwould think about.

$5,000 is painful but not as painful as $50,000, and then I’d like you to talk about insurance potentially as a mechanism for assisting here, that’s something that everybody should know about.

Mike: I think where you’re headed with the $5,000 and $50,000 is folks may have to make a business decision, I’ll address insurance here in a moment, but you’re going to have some form of a deductible and perhaps the least expensive thing to do is to hold your nose and cross your fingers and write a check for a small amount of money. I don’t like to encourage that, that falls in my mind in the category of negotiating with terrorists but sometimes that is the least expensive both financially and time-wise to get rid of a problem. It doesn’t mean that the problem won’t come back again right so ultimately I think that you’re going to have to address if you do have website issues with a firm much like Ryan’s that does exceptional work to be able to help you get in get your site in a little bit better shape.

Now you do have some potential of getting insurance through your normal policies, depends on what you have. This as everyone has said is a gray zone so policies have not traditionally been written directly on point on this. If you were to look at your general liability policy it has some degree of coverage for media and advertising, it’s generally geared towards misuse of copyrighted material, but oftentimes that language is a little bit loose, it hasn’t come up before, and arguments can be made that that coverage should extend to a claim on the Americans with Disability Act that your practice is facing. There are other areas of insurance that are more likely to cover it. EPLI employment type of coverage also provides some coverage for this situation, as does directors and officers coverage under some. All of this is language dependent upon the type of policies that you have, again we’ve not seen until recently a wave of these and insurance companies are slow to react and to alter the language of policies to address specific types of new risks.

I think in the coming months and years we’re going to see some clarification from the insurance industry, but right now it is worth checking. You are looking for third party coverage for these type of claims and this is something that you could check with your broker to see if the policies and coverage you have in place would address these type of claims. A call to your broker shouldn’t cost you anything and at least you would know if you’re covered in the event that you draw a letter or a lawsuit.

Ryan: Mike if I can add on there one of the things that I think clinics need to be cautious of, is I’m aware of at least one clinic that received a formal suit as opposed to a demand letter, settled, and then as soon as that check cleared at the exact same attorney with a different plaintiff filed a second suit for a different issue, the client did not become fully conformant, and within literally within days of the check clearing. So your reference to terrorism I, think it’s a real risk, it’s a real threat, and unfortunately this is one of those things that as business owners we all need to be taking really seriously.

Mike: it makes the legal profession so endearing to everyone doesn’t it right, when you have these kind of things. So there are ethical rules that prevent lawyers from agreeing not to bring claims for other clients in the future, so you if you think well I’ll settle it and I’ll make part of the deal is they can never sue me again, my guess is you’re going to see someone wave that and try to hide behind it, and you’re absolutely right you may be encouraging a whole flotilla of claims to come by writing a small check to start with only to find out that you have a whole series of other checks to write thereafter. So that’s part of that needs to be part of your calculus and ultimately if you’re exposed you’re going to need to do some work on your website to reduce that exposure. I don’t think anybody on this panel would encourage just the write the check and hope for the best strategy of life, we can’t do that.

Ryan: Yeah and from the survey I would say everyone on this call today is exposed. You know unfortunately I’m aware of other agencies that have for several months been telling clinics that, hey all you need to do to comply is to install this free overlay, without the secondary conversation about all of the other things that need to be manually adjusted with the overlay, and every one of the clinics I’ve talked to in that instance when we look at their site for them we can easily pick out additional areas of non-conformance even though they’ve deployed the overlay so it you know I would argue that probably you know that 98 or 100 of the individuals who are joining us for this are in fact in a position of risk today.

Karen: Well, we’ve got a very rich question that I think needs to be posed because I suspect this asker has a whole group of other people wondering the same thing. It sounds like this: ‘Why is this an issue for plastic surgery Sites? The sites are for marketing information, and at the end of the day for the promotion of the practice. They are not essential, not required, no one has to use it, it’s not like it’s a public utility serving the public. Going to the website isn’t a requirement to becoming a patient. I assume the legislation applies to all but it seems absurd.’

Jeff: Let me just take a first stab and then Ryan, we’ll all have something to say, it’s like a red cape to a bull in a matador. So yes, do we think every aspect of the law is appropriate, no we do not, and the general context is that if you don’t like how the law is implemented we have to change the law or at least have the law interpreted by judges who see things differently. I think a straight face argument can be made that even in an aesthetic surgeon’s practice that the website is providing some information and the question is, is it information that somebody would use to make an informed decision as to which doctor to see. So if there are 10 different doctors to see it would be helpful to know is this practice going to be helpful to me as someone who is disabled so that I can navigate through their physical structure both without any problems as well as feel at home and welcome. But also it’s to help them make an informed decision. That is indeed the argument that’s being made. The argument that’s being made legally is that the website is an appendage of the business and that if, it’s true nobody needs to market, but if you don’t market you will have no business unless you’re the only game in town. Ryan pick up from there.

Ryan: Yeah so the first thing is I’m going to counter that and say it’s not just plastic surgery. The first suit I ever heard of back in 2020 was actually for a dermatology practice and then very very shortly thereafter in late 2020 the second one that I became aware of was for an orthopedic office followed by an ophthalmology clinic. So it wasn’t actually until early this year that I started to see that movement towards plastic surgery, number one. Number two, as we think about it, the fact that for some clinics I think that’s true it is just a marketing platform, although I would argue that that same doctor if called in front of a state medical licensing board or a society would argue that it’s actually about patient education and that’s their main motivator in most cases is as a vehicle to educate patients who are considering both them and their procedures, and I would go a little further and say well today much information coming out of the clinic, so for clinics that do price-based promotions specials, many times the only place you can learn about them today is actually on the website so that is a feature. Or clinics use bill pay that’s routed through the websites. Many clinics have patient portalsthat are an integral part of how patients interact with the patient today. All of those things are things that are I would say an integral part of how the patient interacts with and gains information from the business. But more broadly, why is medicine and elective medicine being targeted? Well in that ADA Section 508 title III there are specific areas that are defined for this this type of public accommodation or equal access, and medicine is listed explicitly in there. So because of the fact that medicine is seen as something that directly relates to our our health and our happiness it often from a legislative standpoint is named explicitly and this happens to be one of those cases so I would argue it’s not so much of a target on plastic surgery. In fact plastic surgeons are sort of late to the hunt in terms of being shot at, but more explicitly healthcare is directly being targeted, plastic surgeons probably right now looks like easy prey because of the perception of deeper pockets.

Jeff: Oh yeah, it’s Willie Sutton is the person that we referenced. They asked Willie Sutton why he robbed banks and he said answer’s simple because that’s where the money is. So a lot of this is a ploy to get cash. I can’t tell you that it doesn’t just happen on websites it also happens in businesses, in fact in Georgia as an example, they had what were called testers. People that had real disabilities would go into convenience stores, ask to use the bathroom, they never intended to nor did they purchase anything from the convenience store, but they would take their ruler out measure was the mirror the appropriate distance above the sink, and so on and so forth, and for many of these convenience stores that have no background training experience in this they were not in compliance, or they didn’t conform to the law using the proper terminology. So they got they got hit with litigation, it was one of these hey pay us now modest amount, pay us $2500 bucks, we’ll go away, you don’t have to litigate this, and many people rolled over. In fact you’d find the exact same plaintiff, the same person with a disability, the same tester going from convenience store to convenience store making a pretty good living. This was indeed their day job. In fact we wrote about one practice out in I think it was in Nevada or Arizona but I didn’t know whether this patient was a test or not. It was an individual, well anyway the practice was performing some type of cosmetic procedure related to I guess it was penile enlargement and this patient came in with cerebral palsy, barely able to move his arms, also had a background history of hypertension, and a and seizure disorder, had epilepsy poorly controlled with medication. Came in to have the procedure performed and as they were kind of thinking through this they gave him the informed consent form to sign, he couldn’t even sign it and he lived alone so the question was how is this individual going to be able to even manage or take care of himself postoperatively. From my perspective I don’t I mean I don’t know  enough about the procedure that’s being performed but I would just say it’s probably not a great surgical risk if you can’t actually take care of yourself post-operatively, but my concern  which was no less important was that he may have been a tester you know a significant   disability saying that a procedure was denied to him precisely because he was disabled. So it’s not just websites that are out there that cause a tsunami of ADA litigation.

Karen: Thanks Jeff, I’ve got a couple other questions that we want to go for zippier answers here guys. This is from a fellow attorney: ‘I have a client who is sued without warning, a letter, because two of 150 videos on YouTube were not closed captioned like Ryan stated. The videos were not on the website. Is there a way to review YouTube channels to assure that all videos are closed captioned without going through them manually?’

Ryan: No. I only know because I had to write the protocol for my team to do this about a month ago. There are tools inside of YouTube, your channel’s analytics, to export all the links to all of the video content but then you still have to open each one manually look to see that there is a cc inside of a little white pill-shaped icon, a cc icon present on the video to know that the captioning worked. Google does not today, it’s a free automated service, I don’t think they anticipated that it was going to provide, the organization was intended to provide legal protections, so they haven’t provided any kind of utility that say yes I was successful you now have closed captions there, that reporting is not available. It may be available at some point in the near future but it’s not there today, it’s a manual review. Great question.

Karen: Okay, this is another great question: ‘Hey are webinars like this required to be accessible with captions?’

Ryan: The short answer is yes. So on our site we actually use a third-party transcription service in addition to closed captioning on YouTube when we do our webinar content so we present both the closed captioning and a text transcript specifically to provide the coverage.

Karen: Okay, um the comment was, ‘Ouch. I was afraid of that.’

One other question is: ‘Who should be allowed to post on your social media or your website? my experience is, and you know I wonder about yours, that sometimes it’s a part-time employee, sometimes we’re encouraging all the nurses ‘oh please you know post, you had permission and you’re going to post this on our social media and on yours’. So can we talk a little bit about permissions or authority or control on posting?

Ryan: Do we have another hour? So gentlemen you guys can chime in on this, I would say today because I’m not aware of any litigation on social media related to ADA, your bigger risk is actually related to HIPAA and patient privacy, making sure that you have consent forms for the use of their likeness whether it’s in video or photo. I’m aware of lots and lots of settlements and suits that relate to staff members who grabbed a photo, they didn’t get the consent form, they published it to social media and then a big brouhaha ensued, and so I would say yes you need to be selective, yes you need to train. This is one more layer to add to that training, but certainly the bigger consideration is you know state medical marketing laws, business and professions code, avoiding false fraudulent misleading statements in your advertising, and ensuring that you get patient permission. Jeff and Mike what else would you add on that?

Karen: Well Mike, I’d like to toss this one to Mike because I think it’s part of the HIPAA compliant training that he’s been providing to quite a few plastic surgery practices here around Chicago.

Mike: So one of the things that I’m seeing is that sometimes estheticians have their own channels or doing things on their own in addition to what the practice is and so oftentimes the consent to use an image runs to the practice but not to the individual employee of the practice and there you have a problem knowing that it’s going on through your practice and you’re allowing this kind of a dual or duality of use of images. Besides the fact that it is creating a nice body for the esthetician to then declare free agency status and move on down the street costing you lots of money so it’s multiple reasons why you want to be very careful when it comes to this and I know we’re a little bit far afield of ADA but I thought it’s another risk that people should know about when we’re talking on this topic.

Karen: If we did the image on our site or our social media and we followed all the rules and we have the little cc, but when Nancy posts it on her site does the cc transfer, or when it’s re-purposed, reposted must I go through those steps? I think this is a big point based on all the conversation that I heard at the aesthetic society meeting.

Ryan: So I want to stress again, I’m not aware of any ADA lawsuits being brought against anyone for social media posting activity yet. So in terms of the evidence for me to be as a business owner concerned or focused on mitigating the risk there, there’s not a lot of evidence in that space so I would lower the perceived threat level and still say you know the broader question here is one about how do I take a social media star inside my office and provide guidance for thoughtful and regulated participation on social media on behalf of this this business. The advice that we give all of our clients is that all of the posts need to first go through the practice’s own social media channels following your documentation for how that’s going to be handled. So what kind of claims are permissible, are there consents on file. Once that’s done your esthetician, your nurse injector, that person is free to then repost but they are not permitted to do first-party posts on their personal social media because it has direct and immediate bearing on the medical licensure of the medical director. I’m not a lawyer guys I realize I just started talking like one there for a second so correct me if that’s wrong but this is the way that we guide our clients. It provides the assurance as well that all of those posts carry the branding of the clinic and can actually support the growth of the brand overall. Jeff or Mike did I say anything that was incorrect there?

Jeff: No you didn’t, welcome to the clan, you’re now one of us. Just getting back to the question of who should be posting I think Mike is exactly correct also that HIPAA privacy issues are where you can and will get burned and because it is so mission critical I think it’s probably a good idea not just to appoint one individual but two people should lay eyes on something so mission critical making sure all the proper authorizations are obtained and that nothing untoward goes up that could violate privacy. When I say mission critical I think of it like aviation, I mean virtually every commercial plane that goes up has a pilot and co-pilot it really keeps the fatality rate going down so yes I would say two people have to lay eyes on it to check off.

Karen: Okay got another one, oops Mike…

Mike: I just wanted to get Ryan’s opinion on a hybrid approach to overlay and manual. When it comes to these requirements of patient portals you briefly touched upon it but now we’re seeing open note requirements and the Cures Act is talking about information blocking. It seems to me that there are certain portions of websites that are far more critical to be ADA com compliant than perhaps others and maybe you could disagree with me on that or talk about that.

Ryan: Yeah so I would say the reason why most clinics are concerned about it today you know isn’t because they believe they have a moral or ethical obligation to build a more accessible site. It’s they’re trying to avoid suit and what we know today is a single video without captions, a single photo without alt or alternative text, is enough for a lawsuit so in terms of prioritizing one area of the site over the other you know most of our clients, the messaging is, what do I need to do to not be sued first, and the fastest thing to be done is always going to be that overlay with the few manual small number of manual fixes that aren’t covered by the overlay. Even for practices that feel whether for moral, ethical, or business practical reasons that they want to pursue full manual compliance that’s going to take several weeks or months to execute and that gives you the coverage in the interim.

Karen: One question that’s come up here says: ‘What about Facebook Live, do I need captions if I’m doing Facebook Live?’ I think that’s a good question, thank you.

Ryan: Yeah so my understanding is that the live platform, and I apologize because I’ll need to go and research this answer afterwards, but my belief based on my reading I actually haven’t tested it personally where I’ve tested all of the other feature set is that it is captioning you in real time when you’re live. The trick that people need to understand on both the Facebook and Instagram platforms enabling the display of closed captions is a deep buried setting, you have to go through like three or four mouse clicks to get there, but you can turn it on to test it yourself. If you seek out that setting, it’s in your settings on on both the app and on the web-based versions, turn that on and you’ll be able to actually see the evidence that it’s there so you can assure yourself that it’s happening.

Karen: Okay,  another question that’s come in: ‘Do you recommend an accessibility statement on websites, and if so what should it include?’

Ryan: Yeah so the W3C includes, they offer a template, so search the letter W, the number 3, the letter C, accessibility statement. They actually offer a statement generator. It’s a template they’ll prompt you for, answering the questions as part of those questions are quite technical because the statement declares how far and into what version and which level of accessibility you are conformant and you may not be able to determine that on your own you’ll need to partner with your agency in order to fill out that center section of it. If you’re choosing an accessibility overlay like the one that I recommended, again we have no financial interest in accessiBe we just evaluated it and it scored best in our testing, they will deploy a statement as a part of their plug-in that’s inside the plug-in. If you’re doing a manual conformance test you can use the template generator to help you create that. What is it doing though, what the statement is doing is it’s declaring both to disabled individuals but more to the attorneys that are representing them, we are making a concerted effort to be substantially conformant, here is what we have done, and if you are having a problem what do you need to do to alert us so we can help you. So that component of it alone I think you know Mike or Jeff if I stood in front of a legal office and said I had made substantial efforts, I had a clear path, this plaintiff did not choose to exercise that path and alert me, I think it helps in mounting that defense and avoiding the need to settle.

Jeff: Particularly in federal court, when and many of these cases go to federal court federal judges will rely very much upon your intent. Were you doing a good job to try and solve a problem, if the answer is yes and the other person or the plaintiff is basically saying I don’t want your help I’m just looking for the money I think the judge will rule in your favor actually, or at least lean in your favor.

Karen: Yeah we talked a little bit about that yesterday amongst ourselves so I’m glad that question came up because I think demonstrating a positive intention to be helpful is important.

Here’s another good question: ‘If I were to have a new, all capital letters, website designed how do I guarantee the website designer complies with these ADA requirements? Should this be explicitly stated in the contract for building the new site?’

Ryan: Yeah so a couple things if we go back and we look at the data point that I shared earlier that 98% of the sites on the web just their homepage alone is non-compliant today, this is a whole new approach to coding that’s not very common outside of the public sector. The public sector has had more focus on this for a long time it’s why their sites tend to be much more boring because they are rigidly using, they’re using these rigid templates that are already pre-tested as being conformant. So the long and the short of it is you can have that conversation with your agency and say I want to make sure this is a part of my project, expect the cost of your project to roughly double, and in order to get any kind of guarantee, I know for our agency because we don’t offer the conformance testing internally as our own delivered service we rely on a third third-party tester to actually get that guarantee, there would likely need to be an additional service that’s embedded in which a third party is engaged to provide that conformance assurance at the end. It is very much an iterative process where you design, develop, and then you have to test so there are new steps, there’s new labor, and new approaches to development that are going to be required for that full conformance. The question comes up if we know that these suits are happening why isn’t everybody moving this way, and the answer is which way as an agency owner probably when I struggle with my team is that the difference between 2.0 level AA, 2.0 level AAA, 2.1 A, 2.1 AA are dramatically different, a full doubling of effort if we go from 2.1 AAA to, or excuse me, 2.0 AAA to 2.1 AAA. So because there’s no law defining, at least in the United States, what conformance looks like and whether we must hit full conformance or simply demonstrate a substantial conformant good faith effort I don’t know how to design the process today, and what we’re doing in partnership with our clients are more focusing on the retrofit to say once the site is built what do we need to do to provide the adequate level of protection and demonstrate that good faith effort until we have an explicit law telling us all this is how to do it and this is your checklist.

Karen: Well it seems to me as though, we still have 129 folks who are with us, that we should all be writing our respective specialty societies and that medicine should go forward to ask for this level of clarity because this is all a little bit crazy-making.

This will be our last question and we will go through the written questions that were not answered. This gentleman or woman wants to know will there be a live recording provided to participants for today’s webinar, and I believe we agreed that the recording would live on all of our individual websites and you see those posted so you can go to any one of the participants and you’ll find that information there.

Ryan: Typically Karen, we see about a 72-hour delay for posting depending on whose sites it’s going to go on and for us it’s because we do the transcription of it.

Karen: Right, there we have another example so it will be 72 hours.

Well I want to take this opportunity to thank you all for joining us. Food for thought and please do write your specialty society, get them on the case, thanks guys.

Jeff: Thanks everyone.

Ryan: Thank you, Karen.

Mike: Thank you.

Website Accessibility Webinar Unanswered Questions:

During the live webinar, a number of questions were shared that, due to time limitations, could not be answered. Those questions, and answers from the panelists, appear below. Please use the blog comments at the bottom of this page to share additional questions.

Are we able to shift liability to the company creating the website through legal agreements?

  • JEFF: Vis a vis marketing snafus, an indemnification agreement may help with legal liability, but the doctor still has obligations related to advertising and marketing that he cannot delegate. The Board of Medicine/Dentistry will not care that the agency caused the problem. It will conclude that the doctor selected the agency. The doctor is ultimately responsible for marketing content whether or not he placed that content online. 

If there are APIs built in to the site, would liability fall on the practice or on the vendor?

  • RYAN: APIs are simply methods for connecting or integrating applications online. The API itself is not likely to be ADA non-conformant. That said, any content you choose to introduce to your site should be inspected independently to assure that it meets WCAG 2.0 Level AA standards at a minimum if your goals are to support the disabled community and limit liability.

If we utilize streams from YouTube or Vimeo (and videos are housed on there), how is that addressed in an accessibility audit?

  • RYAN: Video closed captioning is not covered by any of the accessibility overlays and videos require a manual audit whether you choose an overlay or manual conformance. Vimeo offers closed captioning for a premium…or you can add captions manually. YouTube offers it for free as a channel configuration…but periodically fails to generate captions and therefore requires manual checks.

Ryan mentioned that he has the data for mobile performance hit from accessiBe. Can he share?

  • RYAN: For sites that presently return a Performance score less than 40 the performance hit from accessiBe is marked, but still less than all of the other overlays we tested. For pages that have performance enhancements and score above 60 we documented an average performance hit of only 11 points. Etna Interactive’s engineering team has identified coding enhancements that would further reduce that hit and has shared these ideas with the accessiBe team. 

If video has no audio (text overlay only ) must there be cc stating no audio?

  • RYAN: I presume you are speaking of a video slideshow (where there are pictures of text and usually some kind of musical accompaniment). For a visually impaired person, this video would be inaccessible and nonconformant. Adding closed captions, or publishing this video on a page with descriptive text, would provide equal access to an individual with visual impairment.

If you have a social media feed on your website, is that a liability? If so, how do mitigate? Add descriptive text for a picture?  That could be a issue with character limits… Also, what if you’re posting a picture of a PDF flyer with text?

  • RYAN: This is a great example of where I need to consult my own experts more often! One of my social media specialists was listening in to the webinar and was quick to correct me…you can add ALT text on social media posts…it’s just not intuitive. Facebook uses AI to guess at ALT text. You can edit the ALT text by clicking Edit Photo before posting and choosing the ALT text option. Instagram you click the options button and choose Change Alt Text. This will assign ALT text on the social platform but may not carry through on social feeds!

How do we manage conformance on a before and after gallery showing aesthetic surgery results?

  • RYAN: Any image published to your site, inclusive of before and after photos, needs descriptive ALT text. The good news is that this will also benefit your search engine optimization! Our Curator B&A gallery management software (https://www.etnainteractive.com/products/curator-ba/)  automatically generates ALT text. Check with your agency for the best way to address this for your office.

Are there many software solutions out there? This is the first I have heard of this and our website is large. We have blogs, media, online appointments, and bill pay, education, and much more. We are a large orthopedic office. I want to ensure accessibility, especially for the blind. Thanks so much. Great info! 

Ryan, do you have an ADA compliant screening tool that you recommend?

  • RYAN: While there is software to automate some of the accessibility conformance testing, many of the tests require human interpretation and technical expertise. There are companies that specialize in site audits; for large and complex sites expect a large price tag for the audit.

If you settle, the settlement becomes public, does this encourage more lawsuits?

  • JEFF: In a bona fide lawsuit, the public record is generally limited to whether the case went to trial, and, if so, who prevailed. If the plaintiff prevailed, then the judgment is disclosed. If you choose to settle a case, then the public record merely discloses that the case was dismissed. The public record does not describe the details of a cash payment. Still, the point is valid. If you settle a case, the plaintiff’s attorney will know that you wrote a check. That attorney is not foreclosed from bringing another of his clients for a second shot at the goal post. In the context of website ADA lawsuits, if you settle and have not fixed the technical problems that “caused” the lawsuit, odds are high you WILL be sued again. 

Can you be sued if you take a vendor or colleague video and embed on your site and that video has no cc?

  • RYAN: If you choose to embed a 3rd-party video on your site, like one provided by a device or pharma company, that’s your choice and as a result it’s your responsibility to ensure captions are present.
  • JEFF: This is America. Anyone can sue for any reason or even no reason. Once the content is on YOUR site, you will be responsible for that content. We see this in the context of defamation law. A website, for example, may just be parroting whatever someone else said on their site. Once this content is placed on your site, by any means, it is considered “republishing.” And republishing creates its own liability. 

Ryan – What would you say to your customers that are trying to balance compliance vs not wanting to damage their business by applying changes to their website that will negatively impact rankings.?Obviously being compliant is the right thing to do but the flip side is also a financial risk.

  • RYAN: The Google Page Experience update is now forecast for release in August. I would advise tackling accessibility conformance first and immediately follow with efforts to enhance overall performance scores as measured on https://web.dev.
  • JEFF: When a business owner is trying to juggle many goals (often competing at cross purposes with one another), I generally counsel balance. To give an example, I am a strong believer of asset protection. But I do not counsel the same type of asset protection for all physicians. The needs of a physician just starting his career are different for those in mid-career. Those needs are different for those close to retirement. So, asset protection is a process. You can spend a fortune on asset protection, and still have exposed vulnerabilities. And beyond dollars and cents, some types of asset protection add operational complexity. So….regarding ADA conformance, tackle the high-impact changes first. Do the basics. Will you still be exposed? Yes. But you will be on the road to conforming to requirements. I hope the federal government will eventually give all of us better guidance. 

Any recommendations on web developers that would be good resources, and have already been trained on this?

  • JEFF: Yes. Ryan Miller at Etna Interactive. BTW, I was not paid to write this. 🙂

If I installed accessiBe, would I still need to manually go through each page?

  • RYAN: Overlays in general only cover so much. You will need to identify what is covered by your chosen overlay and manually addressing anything not covered. This may or may not require you to check every page depending on your overlay choice.

Is there any commercial source of conforming templates?

  • RYAN: Starting with a “more conformant” theme is a great start. WordPress for example, offers a variety of themes that purport to be accessible at https://wordpress.com/themes/filter/accessibility-ready. Keep in mind, however, that the moment you begin refining code or publishing content, all bets are off.

During a virtual cosmetic consult what accommodations need to be made for the patient to be prepared?

  • JEFF: The basic preparation begins with having the patient’s consent to proceed. Ideally, the platform should transmit data securely unless the patient authorizes use of a “less secure” platform. If a patient has specific needs related to a disability, ideally they will let you know. That is the case when a hearing-impaired or vision-impaired patient comes to the physical office. THEY generally let you know in advance so you can make preparations to assist with communication. If the patient states they are hearing-impaired or vision-impaired, first ask them if they want to use a particular platform to make it easier to help them. The vast majority of times the patient has already solved the problem for themselves and the patient will be the best resource. I recently did a podcast interview with a hearing impaired attorney. HE guided me on the best platform for him and I yielded to his request. Turned out to be a great choice, 

Is there any indication that the U.S. would adopt the number of employee requirements like Canada? Smaller practices will bear a bigger financial burden to adapt to these changes.

  • RYAN: When you reach out to your Federal Representatives be sure to share your wish that small businesses be given either an exemption or more time to fully conform.

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