Section 508 Compliance - Even Regulators Get the Blues
From Scott Gerschwer, Ph.D., Compart NA Marketing
508 Compliance is Not Just Required for Blue Cross Blue Shields, It’s a Great Opportunity.
Medicare and Medicaid rules state that healthcare institutions receiving reimbursements through these programs must make program information “readily accessible” to the public. “Readily accessible” information can be defined as “electronic information and services which comply with modern accessibility standards such as section 508 and W3C’s Web Content Accessibility Guidelines (WCAG).
Section 508 refers to an amendment of the Rehabilitation Act of 1973 often called Section 508—stating that members of the public who have disabilities must be able to access government websites as well as websites of organizations receiving any form of government funding (including web documents) like everyone else.And the number of website accessibility lawsuits (i.e. lawsuits alleging that plaintiffs with a disability could not use websites because they were not coded to work with assistive technologies like screen readers, or otherwise accessible to them) filed in federal court nearly tripled from 2017 to 2018, from 814 such lawsuits in 2017 to at least 2258 (177%) in 2018, according to the accessible technology firm UsableNet.
Clearly this is a touchy subject A case in point is Robles v. Dominos Pizza LLC, which was filed in the Central District of California in September 2016, centered on the inability of individuals who were blind or had limited vision to use Domino's website to order pizzas online with the use of screen-reading software. Attorneys for Robles argued that the Americans with Disabilities Act requires businesses with physical locations to make their websites and other online platforms accessible to those with disabilities. A panel of the 9th U.S. Circuit Court of Appeals sided with Robles, writing that the “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.” And on October 7, 2019, the US Supreme Court denied a petition to review from Domino’s, leaving in place a lower court decision against the company.
The SCOTUS decision not to hear the case is a loss for the company and a win for disability advocates, who have argued that if businesses do not have to maintain accessible sites, disabled people could be effectively shut out of substantial portions of the economy. As Robles’ lawyer put it, “The blind and visually impaired must have access to websites and apps to fully and equally participate in modern society - something nobody disputes. This outcome furthers that critical objective for them and is a credit to our society.”
Businesses in every sector of the economy are thus put on notice. But the healthcare industry is especially vulnerable. Not long ago, a consulting company used an automated testing tool to check the accessibility of 10 major healthcare websites. They selected the top five for-profit and top five non-profit healthcare providers in the nation. These organizations operate hundreds of institutions across the U.S. and, in 2015, collectively pulled in more than 161 billion dollars in net-patient revenue. These are organizations with big, big budgets – and yet the accessibility of their respective websites was a big, big disappointment. In the final analysis, it was found that every one of these 10 websites failed to comply with WCAG 2.0 and Section 508.
On average, there were 28 problems meeting Level AA success criteria and 13 problems at Level A. This means that all 10 of these healthcare institutions are failing to comply with the law, and failing patients with disabilities. It might be time for all healthcare institutions to consider holding up a mirror and examining their own level of accessibility. This isn’t simply hypothetical. In September, 2019, Jamal Mazrui, a blind retired federal employee now living in the Seattle area, filed a lawsuit against the federal Office of Personnel Management (OPM) and one of its major health insurance contractors, the Chicago-based Blue Cross and Blue Shield Association (BCBSA), because he could not access or interact with information about his federal health benefits on fepblue.org, the website maintained by BCBSA for its federal employee program.
Title III of the Americans with Disabilities Act (ADA) states that public accommodations (such as healthcare providers) must not discriminate against people with disabilities when communicating with them or otherwise serving them. Members of the public with disabilities – whether they’re your patients, prospective patients, family members or friends of patients, or professionals such as advocates or medical personnel who happen to have disabilities themselves – must have fair and equal access to your website and other digital services, just like everyone else.Those are compelling reasons from a legal standpoint – because, of course, no health provider wants to risk financial penalties, loss of government funding, or a class-action lawsuit. And, of course it is the right thing to do. But it’s more than that.
The Right Thing to Do and a Business Imperative
Universal accessibility also makes sense from a business standpoint, since leaving barriers in place can mean losing patients to a more accommodating practice. There are about 62 million Americans of all ages who have disabilities. On average, they tend to use more healthcare services than the rest of the population. In fact, people with disabilities represent more than a quarter (26.7%) of all health care spending in the U.S. even though they’re one-fifth of the population. This opportunity is worth more than $881 billion. With 508 compliance everyone benefits. It’s ethical and smart. Compart has solutions that take into account a number of options you might want to consider.