Health care organizations, facing a rising tide of litigation from plaintiffs under the Americans with Disabilities Act (ADA) alleging that the organizations’ websites aren’t ADA-compliant, don’t have a safe harbor from the Department of Justice (DOJ) to fall back on, an attorney said. But there are ways to ward off most lawsuits.
Court rulings have been mixed on whether an organization’s website must be ADA-compliant, said James Fetter, an attorney with Nelson Mullins in Cleveland, at a Jan. 11 webinar sponsored by the Health Care Compliance Association.[1] However, that hasn’t stopped plaintiffs from suing, he said, noting that anyone with a relevant disability who visits a health care organization’s website could bring a claim.
“There are a lot of places out there looking for inaccessible websites,” potentially to bring legal action against them, Fetter noted. Research has shown that since 2018, website and mobile app accessibility lawsuits have made up roughly one-fifth of all ADA Title III filings in federal court, which now consistently exceed 10,000 lawsuits annually, he said. It’s unclear if mobile apps are covered, but plaintiffs are beginning to target them.
The ADA doesn’t expressly apply to websites, so some courts — although not all — have required a nexus between web and physical access, Fetter said. In the context of health care, this could limit plaintiffs to those who actually could use your facility. Other cases might be dismissed. Other courts, particularly in the northeast, take the position that you don’t need to have a physical facility to have a website ADA case, he said. “This could really come into play in terms of telehealth.”
In contrast, in the U.S. Court of Appeals for the 11th circuit, which covers Florida, Georgia and Alabama, Fetter said “there are rumblings” that websites are not places of public accommodation for ADA purposes. In Gil v. Winn-Dixie Stores, Inc., which was vacated for other reasons, the court noted that all public accommodations listed in the ADA are physical places.[2] This stance could reappear in future rulings, impacting Florida cases, he said.
