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so how do you everyone I'm David Glazer hi and I'm Steve Helen so I'm not a here for long I'm just gonna do a quick introduction of Steve and do our announcements and then Steve will take it away so the handful of announcements we're trying to get a more active on Twitter I am I'm on there I have a total of I believe one follower but Frederickson health law on twitter breyer Andreessen who is perhaps the funniest person I've ever met is running our Twitter page and you can actually check out Frederick's and he'll Flair's and their dogs right now but we'll also have substantive stuff May 15th is our next webinar Kevin rich our colleague is going to be talking about marijuana and everything that those of you in the health care industry need to know about patients who may be requesting a prescription or who may be using marijuana just all of the marijuana healthcare related issues we will soon have a webinar on the provider based guidance that we're expecting from CMS any day but the any day keeps moving out and having long since learned that lesson we won't schedule it until we see the guidance a battle we may even have a special webinar we'll figure it out when that guidance comes out only other announcement if the sound goes south you can always dial in to the number that Robert is putting up so we're super lucky to have Steve Helen with us today to talk about website accessibility and I won't spend much time talking about Steve except to say a if you've got an EHR contract one of the things I've learned is I know nothing about those things and Steve and Ladd and briar Andreessen are three people here who have taught me a boatload of stuff way more than I can know Steve is really good at EHR contracts so if you're ever looking at one of those think of Steve and also and there's a be a website stuff he's helped literally dozens I think use over fifty perhaps clients with their ad a website stuff so this isn't his wheelhouse and Steve take it away David thank you for that I'll say that the check our the bottle of wine is in the mail for that endorsement that was very thoughtful and thank you for this audience it's great to be here this is a really nice group that David and the health audit team have curated over time so it's fun to be part of this alright so I am a little bit of a fast talker if I start talking to please just you could send the message through the message function and Robert will wave to me and say Steve take a breath slow it down here's what we're talking about what we're talking about is the evolution of the Americans with Disabilities Act and disability or anti-discrimination law to shift from applying to purely physical spaces right so that there would be ramps the instead on next to the stairs so that a person using a wheelchair could enter a building or a handicapped disabled parking space or any one of the other things that were used to in the physical world we're now seeing that law evolve and being applied to digital or virtual or website spaces and over the past few years there has been an explosion of litigation and disputes in this area like I have never seen before in my 22-year career as an attorney and interestingly right this explosion of litigation is not the result of a new law in fact to the contrary it is sort of like as David was mentioning with some other regulations that have not landed yet one of the recurring themes you'll see here is how our regulations and clarification promised by the Department of Justice repeatedly but that have failed to arrive and are now not expected to arrive any more have actually stirred confusion into the environment so with that let's go we will end on time I'm also not going to read you every bullet point in every slides you've got the slides here's our agenda my goal is to be practical educational and and hopefully interesting other you will be the judge of that we have in our audience I know since I get to see who's read pre-registered we have some folks that I know are extremely knowledgeable in this area and if perhaps been through a dispute or a matter and of course I'm not gonna name you but I'll say I know that there's some folks that are very well-versed in this issue and then there are other folks to whom this is probably a brand new issue for those of you to whom this issue is brand new actually because there have been so many lawsuits in so many cases it's entirely possible that your organization has been sued and you just didn't know it because the case was settled or state entirely within the legal department if you're not in legal so the coverage of litigation is is extremely broad I'll also say by way of my disclaimers that this talk is for informational purposes only and that although it's very flattering for me when plaintiffs or people on the other side because I'm defense only or I'm website owner operator and app owner operator representation only when I'm quoted back to myself in a dispute or in litigation but I'll just say this is a general presentation and my comments may or may not apply to any specific case and for those of you who are extremely experienced in this area feel free to again text Robert with either questions or agreements or disagreements because that will make this more lively alright so how did we get to where we are today with this explosion of litigation let's take a little step backwards to figure out how we got here if we go back to 2006 the National Federation of the blind a filed lawsuit in the federal district in California against target for their website target.com and that case settled for in 2008 for about six million dollars plus several million more in attorneys fees and I was all proud of myself at that time because I wrote a little news blurb about it and I thought you know what this is gonna be the next big thing but it wasn't actually for us starting from 2008 and beyond it was very very quiet for a few years there was a little bit of enforcement action by the Department of Justice and they brought some actions and settled them but it was pretty quiet and there was almost no private litigation and the reason why there is almost no private litigation is that the Department of Justice had promised that in around 2010 they would issue regulations saying what accessibility looks like in digital spaces on the internet because as they do in some physical spaces right the Department of Justice are there a regs to talk about you know a to be handicap accessible a hallway has to be so many inches wide or a sink has to be so many inches tall etc so folks were folks on both sides both plaintiffs and website owner operators were waiting I was waiting for these rigs to come out in 2010 came and went Department has said no just kidding we're not going to do it in 2010 we're gonna really do it in maybe 2012-2013 2012-2013 came along again nothing happened Department of Justice kicked the can down the road further said no it'll happen further on 2015 that's what we really mean well the fall of 2015 came and went Department of Justice said they still weren't going to be issuing regulations yet they hope to do it at some point in the next couple of years at that point a couple of plaintiff firms decided they had had enough waiting that they were going to begin litigation with and just suit under the law itself without there being regulations and that's when actually is a firm in Pennsylvania Carlson Lynch was the first one that really began doing kind of a multiple or a series of pieces of litigation at least as far as I'm aware they had previously been involved in bringing lawsuits against banks and other financial institutions for non accessible ATM cash machines and so this was kind of the next evolution since they were already knowledgeable and experienced in that space that's when a litigation began to take off litigation now is huge so he's just I show this particularly to my business colleagues that don't always believe me what I say I quote The Wall Street Journal to them and that's persuasive right lawsuits surge over websites access for the blind that's a news story headline from 2019 and what happened was it like I said the floodgates began to open in 2015 with dozens or scores of federal lawsuits in 2016 we saw a couple hundred in 2017 it doubled again I think by some estimates in 2018 we had a couple thousand over 2000 federal website accessibility cases and those are the ones we know about right on the state level there could be as many or more but it's really hard to track and of course none of this gets at private settlements I read one more headline just kind of empathizing what I just said and here's right there there are thousands and so I'll show you this this slide with I'm not trying to pick on anyone here right I could have picked any one of thousands of other organizations probably frankly tens of thousands at this point if you kind of demand letters so I showed the slide for those of you to whom you like is this really a thing yes it's really a thing and the lawsuits are prevel they do tend to settle quickly in most cases and that might be why you might not have heard of them and of course folks who get sued don't go out and and brag about it in most cases it has impacts large and small businesses it impacts businesses in all parts of the country although I happen to be in Minneapolis my clients have been sued they usually sued in the home state of the blind or disabled plaintiff and so the bulk of the lawsuits are in Pennsylvania New York is number one Florida or California might be kind of tied for number two over time it depends upon the year Texas there's a few again Pennsylvania there have been us and then there's a smattering in other states but just because you're located in a particular state does not necessarily give you comfort because again the web and apps tend to be viewable or you can access them online from anywhere and so you might get sued in a different place all right so this is a right this is is a headline that you never like to see if you're if you're epic right blind advocacy groups whose epic again and that's again from from March 2019 as we try it in the past some of the heaviest concentration of litigation was against online retailers and restaurants but we're seeing now an increase in the level of concentration of lawsuits brought against health care or health related entities and this this headline here from Becker's is just one example of that also just like the target lawsuit from 2006 was brought by the National Federation of the blind and that was in a sense like a a precursor or an omen of things to come in the future because it wasn't just in any ordinary plaintiff it was the National Federation of the blind that pretends to bring issue based litigation here again it was the National Federation of the blind reaching out to sue epic and so I expect if anything we're going to see an upward trend in the healthcare space so what happened between 2008 and now that has resulted in all of this increase in litigation well a few things right and this these slides don't capture even all of it right what is the the graph to the left is how many people are applying for a job online and the answer is right a lot right not a shock to anybody that if if you had a job portal or job listing that was not accessible to blind or visually impaired job seekers uh for a lot of businesses that's the only way you can find a reply for a job that those folks would be excluded over on the right is the increase of retail done online right if you're like me in 2008 you know what I probably bought an occasional book on amazon.com [Music] whereas today I buy a substantial portion of the stuff that I buy on amazon.com it's really the importance of the Internet to people's lives change dramatically let me make one more aside here right all the examples I give I don't mean to like pick on anyone or single anybody out because truly you know I mentioned epic before it could have been McKesson or GE or any one of a number of dozens of other providers in most cases businesses unless they've made a really deliberate effort are going to have a non accessible tool and so that would be my comment to you as well unless you have made a very deliberate and specific effort to code and program your websites and apps to be accessible for disabled users it probably isn't this is one of those things where more is less over the past decade or so as technology has become more flashy and more of a more fun and exciting and vibrant user experience for most users or for sighted users you know you've got maybe a video in the upper right hand screen and a banner scrolling along the bottom screen and some other things happening that's very difficult for accessible technology to read or kind of communicate to the disabled user whereas the old-fashioned rate rewind again ten or fifteen years ago and most websites were just you know what it was it was text on a page right and the technology behind screen reader technology which is what visually impaired people used to access the Internet it's not it's not brand new technology is technology that's been around for a while so the website that was simple and straightforward from a decade or 15 years ago as people sort of added more sizzle and pizzazz to it it became less usable in most cases for the disabled user I should also mention here that of not picking on anyone so the my first side had the lawsuit against target I was not involved in that litigation I have no idea what targets web suit website was like at that time the case settled but I will tell you is because target got the first national attention that my understanding is that target's website now is extremely useful and extremely friendly to disabled and blind users because they've been under so much scrutiny and so I realize it's a different industry than the folks here but if you're looking for you know an example of a an accessible or a well done the site or if you want to see some policies that they've posted like an accessibility policy or an accessibility statement one of my comments here is a target can be a great place to look and get some samples that'll be tip number one what else happened so we've got an increasing number of folks looking to the internet for healthcare information I pull this from the Pew Internet and American Life Project as an aside here right if you're heading to a cocktail event or a dinner party and you want a couple of interesting tidbits about the world let me highly recommend the Pew Internet and American Life Project they've got awesome great I think pretty high quality statistical information what else is happening so so this issue is being driven on the litigation front primarily by visually impaired or blind or hearing impaired individuals but the thing that's kind of is is the giant thing that you haven't seen behind the scenes is the u.s. population is growing older as folks grow old or right my mom uses Facebook and uses the internet for certain things and as her preface she becomes less dexterous as operating a small screen or what her vision begins to deteriorate she's not going to just want to walk away from using these tools that have become so integral to her life right she'll be committed to those and so there will be a business case on top of a legal case for accessibility and better user experience primarily driven by the like I said the aging population so what do we know about disabilities again I'm just gonna cover some highlights here that keep in mind is we've got a physical disability sight hearing auditory and cognitive and it's a sizable chunk of our population and the thing that I like to remember as well is that that's the third bullet point people move in and out of disabled status right I feel like just on the elevator this morning I saw one of my colleagues going up with a boot on their foot that person is temporarily disabled right due to their foot injury the other thing that I'll mention you know I guess that's all I mention on that slide so assistive technologies this these are what disabled some of the technologies that disabled folks use to access the internet or to access apps so again point number one here is those folks use the Internet and apps just the same as y u and me they just need additional tools or to do so successfully so we have in the top left right that's a kind of a Braille tool we have in the bottom Center jaws the shark that's what we'll probably talk about most that's the most well known screen reading software it tends to read from left to right and top to bottom just the way that English print is read so this is a legal presentation let's talk about what does the law actually require I like to go back to basic and primary sources here because some of there's a lot of chatter from the secondary or people heard something at a tech conference but let's let's go to the foundations here what does the law actually require ah there's a couple of different anti-discrimination laws that will come into play but far and away the one that has the most litigation is the Americans with Disabilities Act title three title you've probably heard of title one is the AH no employment discrimination against disabled people and we'll talk about that a little bit but we're actually most of the litigation has come from is title 3 which is prohibits discrimination from public accommodations we'll talk about the definition of a public accommodation in a moment but here I'm actually going to read right what is the law saying here I'm quote the law itself no individual shall be discriminated against and I circled that right what does that mean to discriminate on the basis of disability in the full and equal enjoyment of the goods services facilities privileges advantages or accommodations of any old word place place of public accommodation by any owner or person who owns releases such a place of public accommodation so what is a public accommodation for the folks who are registered for this webinar and I again I saw most of your business connections it's almost all of your businesses right so here it's a hospital a government office almost any place that is open to the public it includes no one more right so here's a portion of the definition again from the statute itself and that includes a right at the bottom half a pharmacy an insurance office a professional office of a healthcare provider hospital and then here's the catch-all or other service establishment so that's really gonna be most businesses that are are on this call what does the discrimination mean again the statute gives us some insight into what discrimination is where I said and here I'm quoting from the statute discrimination includes a failure to make a reasonable modification in policies practices or procedures to make a good service or item available unless the modification would fundamentally alter the nature of the goods services or privileges so what's a reasonable amount of it this is how we start to see the complaints in the lawsuits right the plaintiff will say that you have a lawsuit or that you have a website or you have an app but you did not modify your code or you didn't take time to change the code so that would be accessible with my screen reader technology or other technical system technology more of the definition of what is discrimination from the statute itself right failure to take steps like changing your programming necessary to ensure that no individual with a disability is excluded denied service or otherwise treated differently because of the absence of an exhilarating unless it would fundamentally alter the nature of the good service facility privilege advantage or accommodation being offered or would result an undue so I get a discusses this whole thing that the what the plaintiff will claim it's the same old law no loot no new law was passed leading to this uptick in litigation no new regulations were issued but rather it was some plaintiffs who were tired of whiting saying this law by itself what we see here is enough to sue on even though the law itself never was passed before the internet existed in 1990 and says nothing point-blank about what you have to do for web sites let me talk for a moment about undue burden so this is where at the cost we so excessive or disruptive that that a business shouldn't be forced to make the change this has been argued in a number of cases I'll mention a couple of them later on as of right now right April 2019 I'm not aware of any case successfully arguing the undue burden defense there is a case probably the most well known case arguing this was winn-dixie winn-dixie is for those who don't know is a grocery store and pharmacy chain in this mainly the southern parts of the US and they had a numerous website that a plaintiff claimed was not accessible one of the defenses when dixie argued was that it would be too expensive to make the fix the experts testified of a cost to make the fix between thirty seven thousand dollars and two hundred and fifty thousand dollars that that seems like a right ballpark for a fairly robust website i've seen go a little bit higher it's even go a little bit lower in terms of costs my clients and what the court said in that case is that is not an undue burden winn-dixie you're a multi-billion dollar organization and you just got a new website at your to ago that you paid a couple million dollars for therefore at least in that context no undue burden and as I say I've never seen I don't believe I've seen undue burden argued successfully in this context what other laws besides title 3 of the ADA a can be argued in cases like this almost every state has a state civil rights statute that significantly mirrors the Americans with Disabilities Act and prohibits discrimination on the basis of disability he is just an example from California's unrest Civil Rights Act but again I'm not going to read this it just did for him discrimination on the basis of disability among other categories how else can we get to this to the situation of the website and the need for accessibility he's under the Rehabilitation Act so section 504 of the Rehabilitation Act applies to any entity that receives federal government funding so most commonly right that's a hospital I it's a school it's a university there could be a wide range of organizations and what that law says right is no otherwise qualified individual with a disability shall be excluded from the participation in or be subjected to discrimination under any program or activity receiving federal financial assistance so that again is another it's a second law that can get us to the same result I also mentioned the bottom section 508 of the Rehabilitation Act that only applies to the federal government itself so if you were you know the Environmental Protection Agency and your website it's epa.gov you actually in that case have some very specific requirements they are the most clear requirements in terms of the standard that you have to meet for accessibility they're under Section 508 as further amended it specifically calls out a certain set of guidelines the WCAG that's w c a.g guidelines they're in a further slide so you don't need to necessarily write that down we'll talk about them later on but it unfortunately other part laws don't explicitly call out those guidelines but a number of cases do all right what-whatever laws accrete obligations for health care or health care related entities section 1557 of the Affordable Care Act and there are many folks on this phone call and in my office here that are more expert on section 1557 because my focus here is really on technology and disability discrimination so I'm not going to talk about other parts of section 1557 of the Affordable Care Act here's some other pieces that it covers there's a broad abroad law there is I actually gave a webinar in the past with one of my colleagues Marguerite Aman who is much more knowledgeable in the area of in clinic or in hospital language or other communication assistance so that's what we're not going to talk about are those things I call Marguerite or whoever you work with on those issues we've seen very little Italy I'm gonna go forward to I'll come back to the previous slide under section 1557 I've seen very little litigation like I said almost all the lawsuits explicitly referenced the ad a title three possibly state law occasionally section 504 of the Rehabilitation Act as the basis of their claims I've almost never seen section 1557 but I have heard some stories here and there of plaintiff attorneys reached sending out demand letters referencing section 1557 and here was this is from about two or three years ago there was an attorney down in Texas who was actually I think gotten some disciplinary trouble for just cookie cutter non foundational demand letters but he wrote out - I think hundreds of healthcare organizations since your website does not comply with federal law and there he was referencing the Affordable Care Act you must immediately self-report to the Department of Health and Human Services and forfeit any federal funds received from Medicaid or Medicare until you have completed recertification all right so let me just I'm not the sky is falling attorney I don't want to be that person so let me just say to my knowledge that claim has not been asserted certainly not successfully in any court anywhere but you might see it and and and that's just one more piece of the puzzle all right one other way that accessibility or action to improve the accessibility of your website might be required just by contract and so for example you might have this is actually where you might put this on your vendors to you or if you're a healthcare vendor to a customer you might see that's right that vendor will comply with all applicable laws and regulations in providing the services and deliverables I'm actually seeing more and more specific reps and warranties in technology related contracts in the financial space and in the healthcare space that says hey website developer or app developer or whoever is providing certain technology tools what you provide you represent and warrant must comply with the ADA a must comply the Rehabilitation Act and comply with this the standard the WCAG the web content accessibility guidelines section 2.0 or actually now it's probably section 2.1 standard double-a one of my very very last slides in your whole packet that we'll get to has some suggested language that again if you're a healthcare entity you might want to add that to your standard procurement process to kind of like your template vendors services agreement because this is a way for you to require that folks who are building stuff for you build stuff for you that will not get you sued all right we covered that slide so we've now covered some foundations the law what does that typical complaint look like again I'm not picking on a heartbeat health that I could have picked any one of a hundred other complaints that have been filed in the past week or two or a month or two this one happens just to be from from February of 2019 so but it has many of the classic elements that you'll see again and again so the it was filed in New York again New York is the most common place to see these lawsuits filed there's a number of active plaintiffs and active firms in New York aretha Crossan is the name plaintiff I looked it up to the other day I feel like in the past twelve months she's been the named plaintiff in it was at around forty of these lawsuits I may not be right on the precise number but that's kind of the ballpark and she's visually impaired or blind according to the complaint again that's the most typical I bet that visual impairment accounts for about ninety percent of these cases hearing impairment is probably nine percent and then one percent might be other but visually impaired is is the dominant category I see at the bottom it says complaint class-action most of these are styled as class-action complaints now very very few of them end up being certified as a class action because that's a pretty labor intensive and expensive process so most cases settle long before them and then heartbeat health to my knowledge they do some kind of a heart testing and have some facilities in the New York area so that's so that's the it's a blind plaintiff health-related business they have a website at you know whatever it is dot-com the plaintiffs in alleges that they tried to access or get information from the website using their screen reader tool in many cases this draws tool now to read the website allowed it to the visually impaired person but due to a list of specific barriers the person was unable to successfully gather information from the website some classic examples of like what didn't work there's there's I'll give two examples one is what's called alt text alt text that's Alt alt text is where someone describes or types in the in what is in a picture or a photograph right so if I've had a picture of a let's say a graph of the risk of cancer according to age if uh if you didn't enter no alt text behind that it might just say on jaws image file no content image file no content right so not very helpful whereas if someone entered the alt text you just cut in what kind of what I just said right you know graph showing increase in risk of cancer correlating with age or something like that or we be reg you know photograph out of doctor and patient or whatever the description is so that's all text leaving that out kind of leaves the blind person hanging actually I'll give one more example on a number of websites there will be what looks to you and me like a are the like a button it might be like a login button or some it's like a bigger button you click on it to like log in or do whatever you're gonna do well services are image files right so you could see that if the screen reader says image file no content then the visually impaired user won't ever be able to find the login button so that's one example another example is what we call the ability to navigate either by tab or arrows because if you're visually impaired you don't use a mouse because you can't see where the little cursor piece is on the page so the way that most visually impaired people navigate is through through arrows or the tab function so and actually this is one way that you can test your website yourself or your IT team is if there's a button or a function or a link on your website and you can't tab or air to it then that then that's not accessible kind of by definition so the so in the complaint then the plaintiff will like name the list of things that they had trouble with on the website that was the specific barriers they will list the damages of the amount in controversy in this case they said it was a greater than five million was the request they'll name the specific laws that they believe are violated by the non accessibility of the website and in this example which is typical it was the Americans with Disabilities Act title three it was the New York state civil rights law and those were those were the two laws they claimed or violated the relief sought is monetary damages and then an injunction or court order requiring the website operator to improve the accessibility of the website and by the way is this is a public document that I just mentioned if you want a copy of that - feel free to contact or email me and I can send that out so you can see an example all right let's see a sampling of key cases we've now have seen the law what plaintiffs tend to allege what our courts actually saying since we don't have regs to interpret this this area all we have are cases I mentioned before kind of the the early case in California the National Federation of the blind alleged that the website target.com was not accessible to blind users using the screener technology and therefore that by to the Americans with Disabilities Act title 3 and state law target moved for summary judgment claiming in part that a website is not a quote place of public accommodation and in response that here's what the court held on the motion to dismiss it said that to the extent that there is a nexus and let's circle the word nexus on my bullet point there - so that there's a nexus to the goods and services offered in a particular store or location then the court will not dismiss the claims but if there were some parts of the website that we're totally unrelated to the physical location then those claims would be dismisse so again I think for most of the folks on this phone call that's going to still be your website is covered because if your website describes the location of your facility or the hours of your facility or the providers who work at your facility or these services or treatments offered at your facility then according to the target case the ad a does apply to your website as I mentioned before that case settled after this motion was brought and now target has an impressive website let's look at another key case so back in 2015 a plaintiff brought Cullen was the plaintiff brought a lawsuit against Netflix and Netflix right is the quintessential online only business so there is no physical location at least not where the public interfaces with Netflix and here the court ruled I'm just going to read this we have previously interpreted the statutory term quote place of public accommodation to require some connection between the goods or service complained of and the actual physical space and they give a citation because Netflix services are not connected to any actual physical place Netflix is not subject to the a DA so now you those of you who have an online-only business so if your business area is maybe just a health information maybe you are a insurance or other tool or provider that does not have any physical stores or storefronts that are open to the public you now have an offense if you get sued in that defense is that the ad a and then just the ABA only applies to physical places however this defense is going to depend upon where you are and where the lawsuit is brought because I give a contrast the National Association of the Deaf versus Netflix the same thing where that court in Massachusetts in 2012 reached the exact opposite result frustrating yes I agree another case in New Hampshire where blue apron which is an online grocery delivery service they they were sued and the court again held that online only the ad a still applies so this is one of those things where again if you're an online-only business I don't think you can just blow off this issue because the defense depends upon where you get sued now if you could suit in California which is in the Ninth Circuit you might have a pretty good defense but but you might get sued to the next week by a different plaintiff in Massachusetts or New Hampshire or any one of a number of other places and they're that defense won't work this case is from 2019 Robles versus Domino's Pizza and this case is significant because if you took away a defense and again like I am right I'm a defense the only lawyer in this space and so we had potentially a really powerful defense based upon the trial court initial decision in Domino's Pizza so I can standard complaint right we have I believe it was a visually impaired plaintiff who claims they could not use the website and that violated the Americans with Disabilities after Title 3 and possibly some other laws among Domino's defense was that because what it means to be accessible like what the standard is what do I have to do is so unclear and because the Department of Justice has for years and years delayed and failed to issue regulations that would give anybody a clear past compliance that is a violation of the 14th amendment of the Constitution which requires due process one of the kind of pieces of the 14th amendment is the concept that a business or individual laws need to be sufficiently clear that an individual who wants to comply with them knows with sufficient clarity what the other half have to do or what they can't do right so the speed limit is 55 you can't drive over 55 and in this case right I said well you can't discriminate in your website against the disabled what does that mean and I share the frustration of these defendants and website operators say that the standard is not entirely clear so that defense was successful at the trial court level but I in 2019 that defense was taken away so the Ninth Circuit Court held that even though there aren't regs and even though there might be some fuzziness or as they call it a flexibility to how one might create an accessible website it was not a violation of due process and the lawsuit was allowed to go forward with this case actually might be appealed to the Supreme Court or maybe it has been in the past couple of days or weeks to be continued Gilliam versus winn-dixie I mentioned this earlier on and this was one of the first it was actually the second major case that I'm aware of that went to a full-blown trial or a final decision on the merits that case the the first case was in California Colorado bag and baggage I believe but I couldn't you couldn't even tell from the court pleadings or filings whether the defendant tried to defend in that case in this case Gill versus winn-dixie winn-dixie did defend in a robust way and they were unsuccessful they lost at trial and one of the key takeaways for the folks listing here is that under that court decision there were multiple kind of all same parts or pieces to the website part of those were controlled directly by winn-dixie so for example you know the store locations store hours maybe what was I'm special that week at a particular location that was controlled directly by winn-dixie but the website also had a loyalty program you can kind of see there's a little car to the check box in the middle so you know wouldn't Dixie customer reward card there's also some level like online shopping and those pees like the the checkout payment cart was not controlled by winn-dixie that was a third-party service that winn-dixie hired and the loyalty program was also operated by a third party one of the holdings of the winn-dixie case is that winn-dixie was responsible even for those pieces of its website that were operated by a third party because winn-dixie got a control and picked the pic of the third party so that's again mr. it goes back to my earlier tip or recommendation that next time you're getting a website update or a refresh or you're buying a new piece of technology you really want to put in that contract that it will be accessible comply with the a DA and that that vendor will defend and indemnify you because if they don't I'll say in that case winn-dixie could have shift their risk by way of contrast might be my biggest case of two years ago was not actually a blind plaintiff suing a website owner what it was is a dispute between a large financial institution and their website developer that had built their website for them that financial institution had a great contract for them which said that all work product and deliverables will comply with all applicable laws and regulations and for any allegation even vaguely related to a violation of law of a deliverable the developer will indemnify and defend on the lawsuit and they'll fix the problem at no cost well the lawsuit was settled fairly inexpensively and quickly because again most of these for the vast vast majority of these cases they settle quickly because settling is so much less expensive than defending even if you think the case is of dubious merit so in that case of the financial institution it was settled economically but the large financial institution got about a half a million dollars of free upgrades to its website provided by the website developer because they had a great contract all right a few more defenses so one is no standing and there are a couple cases where this has actually been successful mainly on in Virginia and West Virginia they've typically involved banks and financial institutions I like a credit union and the principle is when a plaintiff brings a lawsuit and they weren't even eligible to be a customer as so I suppose you might say right if you had a healthcare organization that was only open only for veterans or only for women any male plaintiff sued you the argument be that that person does not have standing because they are not a viable or eligible customer of your business so that has been successful in some cases in some cases actually that was even successful where it was just a significant distance between this particular Bank and where the plaintiff was located and of course it is you know what there are like a hundred different banks that are close to where you live I don't really believe that you're a viable that anyone's gonna really bank at a place 300 miles away now I don't know that that would carry the day because as we move to more and more mobile and again not to undermine a defense because I'm a defense only person but I would just say this it might be a defense that you can argue but I wouldn't bet the farm or that defense in a particular case the other and this I think defense also has some promising elements to it is that the plaintiff is that the claim is moot because the defendant has either begun a fix of the problem or in some cases it is even by the time you get to court has completed the fix so one thing to consider if you ever encounter a lawsuit in the space is can you start work on the fix or perhaps hire a third party where you even have like a statement of work here all the things we're gonna do that we're gonna fix that could be a viable defense I get into some cases it is but as you see from the bottom citation in this Haines versus Reuters case from the 11th I love this circuit the mootness defense because a fix had been begun our there's a previous similar lawsuit that was settled and a fixed begun over the previous lawsuit was not successful bottom line of litigation again I just share with you the frustration the courts are not speaking in one voice or with clarity it used the bottom line of litigation 90 plus percent of the cases settle in between two days and six months because it is so much more economical if you have and listen I would love to defend to the nines a business that had what I thought was a strong winning defense in the jurisdiction in which were located and we have in some cases mounted a defense and in some cases we have actually gotten plaintiffs to back down but here's the other part is just looking out for businesses is I've seen some cases where businesses have defended and they're you know they're like in a Massachusetts or in New Hampshire or some other jurisdiction where that defense has been tried in that specific place and has lost and I really wonder what's going on there like why are you defending when when that's just like adding legal cost before you lose so I just say find a lawyer who knows the ins and outs of this particular issue before you go wasting money because I that's a bad way to go about it all right what do I say most but not all cases survive a motion for summary judgment legal arguments continue to evolve I have learned so much from my clients over the past couple of years on this issue since I began defending and I'll just say that uh there are new arguments that could happen any time so put on your creative thinking hat once when if you had a bit defending alright I was doing a time check here yep I see where we are all right so what else has been happening this is a big change is that everything we've talked about so far has been applicable to your customers or end-users of your business and not employees we have started now to see an increase in cases brought under Title one of the ADA a which is the employment piece or again equivalent state laws and here's this an example right that this particular school was the defendant in this case but the same law would apply in the same way to a health care organization so you had a blind employee who's a counselor at the school and she had to log in some of her visits with the patients or they sued the students that she was seeing she had been doing that successfully under the old tool whatever the old computer tool was but again there was a quote you know new or upgrade to the neutral all of a sudden her screen reader software would not work with the new supposedly upgraded tool there has to be an interactive process under Title one the employment pieces so the employee reached out to the schools and hey what can you do for me we don't have a ton of detail about that but there was at least some level of back-and-forth but it was not successful it broke down ultimately this settled for more money two hundred fifty thousand dollars that's one of the few public settlements this is significant because although bringing a title one employment lawsuit is a little bit more cumbersome and burdensome on the plaintiff the amount of damages at issue and settlements are also a big order of magnitude higher so for you now wearing your employment hat you need to think about what tools are my employees potentially using what computer tools are they accessible I so the good news here and this is there's a lot of stuff happening behind the scenes right you know Microsoft Google a bunch of big companies that offer tools used by workers have been investing tens of millions hundreds of millions of dollars a ton of money in making their tools accessible but as you go into more niche tools you're gonna find that they may not be all right back on Epic right this is a headline from this year epic electronic health record software isn't accessible for blind hospital employee a suit claims what this lawsuit claimed initially there were a couple of them they were similarly related but one of the referenced an employee who was a dispatcher so I guess once the hospital room had been used that the patient was gone there would be some kind of a message electronic message sent it to the dispatcher who was this blind individual and then he would send out an electronic message by his computer telling you know for example he's a cleaning person to go clean room 203 because this empty now this person had the job for over a decade and was able to use the old software successfully to do this dispatching or scheduling once the hospital operated - epic though his screen reader would not interact and that was the basis for his employment lawsuit this one was settled I believe and she do I have a heavier slide I guess I do a sorry it's not a slide but I'm gonna read to you a portion of what the complaint said so again this isn't the court decision this is the complaint well epic has taken steps to make patient patient facing portions of this electronic health record software accessible with screen reading software so that blind patients are able to access their health information epic has not made the clinical or administration facing portions of its software accessible to blind healthcare workers because blind individuals cannot use epic software or the clinical or administrative side they are effectively barred from employment at hospitals and facilities that use epic software this case is still pending and and not you know look for an article on our website or an update but this if it goes the same way that the Miami Dade case went there could be a substantial issue I'll just mention this the Internet of Things as we get more and more you know smart machines we're now starting to see litigation in the space so this is an example of where the machine at issue was again not an healthcare organization but it might as well have been it was a checkout scanner at Walmart and the National Federation of the blind again they can be a preview of things to come sued saying that the scanner displayed the prices and other project information on the screen but didn't do an audio signal or you couldn't hear what was going on and for the self-checkout I get Walmart is defending that case so to be continued so what are you actually gonna do right so we've talked about the conundrum and that there isn't a fantastic government guy a fantastic government or court guide and so then we have some we know the ATA probably applies and we know that you probably need to do something to help covered individuals access or user website so I wanna I have a new client I will use an automated electronic scanning tool and there's a number of them out there there's one called wave wave3 at least the basic version is free and it's out there and you know that tool is just fine but it only captures in my opinion a very narrow piece of all the possible I think there are both pulse' false positives and false negatives and s here right this is from the US government what they say it what do they say about scanning tools no automated evaluation tool and tell you if your site is accessible or even compliant manual testing is always necessary so at the in the same way as like no tool could tell you you know what is or is not harassment or sex or gender discrimination in the same way right whether a site is accessible is a human experience decision or experience right could a hearing impaired or visually impaired person go to your website or go to your app and could they'll go to your piece of software and could they do the functions that anyone else is doing on that website app or tool and if the answer is no then it may well not be accessible so so that there may be some level of manual testing to determine whether or not you are accessible and compliant here's just one more example of of the scanning tools which again I do have some they can be somewhat helpful in helping you like problem-solve but they're not the end of the day so I just ran this the National Federation of the blind website let me assure you the National Federation of the blind website is like NFB org works really well for blind people okay let's just take it as a given that their home-based website works well for the blind and yet running a scanning tool it tells me on the left hand side how many airs eleven errors so those are either false positives or not real errors and this goes to how you can't hang your hats entirely on a scanning tool so what should I tell my IT department how do you actually work with them to reduce your risk well there is a standard it's called the web content accessibility guidelines version 2.0 but actually now there's a version 2.1 so let's circle at the very bottom bullet point 2.1 there's different versions there's a double-a and triple-a I'm not going to go into the details here but I'll just say double-a wcag 2.0 or 2.1 double-a is what the Department of Justice points to when they say what is accessible what a number of courts have pointed to now people also kind of have this little caveat it might not be the only way there might be other ways and the internet changes fast so maybe there's something else but this would be one way to be accessible so in light of the fuzziness and confusion if you're looking for something that's pretty concrete I would say look at the WCAG guidelines so here's a hyperlink on this slide to the WCAG guidelines right so www than the number three org and there are the guidelines right you could show these to your IT staff and they can begin to take action on these now again testing to make sure that they did the job right is hard to do you might work them so you're getting an outside tester to do it because it's really hard to test yourself but but that's at least what you could appoint to your own internal or external staff what are some of the things these guidelines require they prove already talked about right alt text or text alternatives behind images captions for videos for the hearing-impaired keyboard navigation right that's the arrows or tab and not the mouse consistent design color contrast one of the things with color contrast is that I think it's 109 and ten men I have some level of colorblindness so if you're picking the wrong color contrasts for important information you are leaving out part of your audience so here here's what you can do to try to reduce your risk number one audit or review and improve your website that's really the the most central element is that if you're trying to not be sued or not going to demand letter that actually having your IT staff take action or your vendors to improve the quality or accessibility or website that number one is far and away the winner okay other pieces of this puzzle my second bullet point procurement and vendor selection process right the analogy that some folks give is when you is to like a house or a building that if you're building a new building and you want to make the hallways wide enough for a wheelchair when you design your building designing wide hallways that's pretty straightforward and easy to do whereas once you have a built building and now you're gonna like move a wall to make it wider that's super expensive so again for those of you even if you have not been sued I would say try to build into your vendor selection process for a new website a new app or potentially even other tools like your EHR system like epic rep building in a representation and warranty and indemnification that it will be accessible because so much cheaper and easier for you to solve it before there really is a problem assess the remediation and recheck post an accessibility statement so work with your legal counsel on this but an accessibility statement usually it appears on a website down at the bottom where you've got like the Terms of Use and maybe a privacy policy or a privacy statement you also have an accessibility statement the central element of which is that if people have trouble there's a phone number or email address that they can connect to perhaps get some alternative form of communication I'm not gonna again read all of these points here because you have them in the slides yeah I'm just I'm actually I'm gonna keep going here because these call kind of speak for themselves a you know monitor do some training I'll point a person as an accessibility coordinator actually following through all these things especially for larger or mid-sized organizations is hard and it's easy to kind of forget like oh we just have a website our vendor said was accessible but then guess what six months later as you add new photos or new text it's no longer accessible if you appoint someone and it doesn't have to be their only job does not have to be a new hire maybe the person's an IT maybe the person is illegal maybe the person's in compliance or HR but give someone as part of their job title accessibility coordinator so that they you may be on an annual basis give a report to legal or to your board or your some leadership level and they also remind people for example in procurement to make sure that you're procuring accessible technology or shifting risk all right here's my example of a pro customer warranty and again is this right for you I don't know but it was it was a pretty good fit for some of my clients and so I offer it to you for your consideration all right and we're getting close I want you to see where I am I actually got questions so right nope no questions so far from the audience that is fine my colleague David stopped by and has a couple of postitive should I read those are do you one of it's in those I can just quickly just say first thanks Steve because this was awesome you know my pleasure people often wonder hey where are the slides from this so in the email you got with the registration material there is a copy of the slides so you can see them there and so you do have them in fact right now if you missed part of this or if you would like want to share it with a friend by Monday this will be up on our website and it in all of our past webinars are there and they're free so you can you can listen to Steve over and over again but if you've got someone in your organization that you think would benefit from it you can send it to them I do see a question is coming in so steel Aretha and I guess the only other announcement is the force D panels the question is a don't forget May 15th we'll be talking about marijuana or I won't because I don't know much about but Kevin rich will be talking about everything medical providers need to know about marijuana and Steve so this is a great question or other vendors that contestants certify WCAG compliance any recommendations to what to look for so a really great question and here's my answer is yes there are a few organizations I'm not gonna actually name any here but I'll say here's what you want you want an organization that actually has at least some level of live user testing and I'd say preferably including a blind person on staff once I've found in the past couple of years is that almost every like web development firm or app development firm in town has added like on their blood point of 27 different services they offer they've added bullet point number 28 accessibility and that means that they sent like you know one of their interns out to listen to this lecture and now they added the whole point of the thing but they really aren't qualified or well qualified so I would say do your diligence on your vendor and if they really should have this should be focused on this and have probably a some level of live user testing those are the tips that I would give and then I'll reach out to the person who asks the specific question there you go thank you so much Steve we really do appreciate your wisdom and thanks for joining us you if you have questions for Steve you know how to email him and you always should feel free to reach out to any of us here at Frederickson and thanks have a great day I hope you can see some of deliriant meteors tonight thanks David I'll try to check those out okay bye bye