In January 2014, Ms. Aleeha Dudley, who is blind, filed a civil action against Miami University, alleging among other things that the University excluded her from participation in and the benefit of its services, programs, and activities; discriminated against her on the basis of disability; and failed to take appropriate steps to ensure equally effective communication with her, all in violation of Title II of the ADA and other federal laws. Dudley v. Miami University, Case No. 1:14-cv-38 (S.D. Ohio Jan. 10, 2014). In May 2015, DOJ's Civil Rights Division joined with Ms. Dudley in prosecuting this action by filing a complaint in intervention against Miami University on behalf of the United States of America. DOJ generally alleged in its complaint in intervention that the University used technologies that are inaccessible to qualified individuals with disabilities and failed to ensure that qualified individuals with disabilities could access the University's curricular and co-curricular materials on an equal basis with individuals who do not have disabilities.
On October 17, 2016, the DOJ announced that the United States and the University had resolved all claims asserted in Dudley pursuant to the terms of a proposed Consent Decree, which has since been filed for approval by the United States District Court for the Southern District of Ohio. While the district court has not yet formally approved it, the Consent Decree's terms should be of interest to any entity that conducts business online or through the use of electronic information technology.
The Consent Decree obligates the University to improve
accessibility of online and other content it provides. For
- All new and "redeveloped" "web pages, web applications, and web content, created by Miami University, on websites and subdomains used for Miami's academic divisions, academic departments, and administrative offices" six months after the approval of the Consent Decree must comply with the Worldwide Web Consortium's Web Content Accessibility Guidelines, version 2.0, compliance level AA ("WCAG 2.0, AA"). Consent Decree, ¶ 21(a). Preexisting web pages, web applications, and web content must be brought into WCAG 2.0 AA compliance within 18 months. Id. ¶ 21(b). During this 18 month period, the University must, upon request, provide equally effective alternate access of legacy and archive content. Id. ¶ 21(c).
- Web content that may exist apart from "web pages, web applications, and web content, created by Miami, on websites and subdomains used for Miami's academic divisions, academic departments, and administrative offices" must be remediated upon request. Id. ¶ 23.
- To the extent the University uses third party content, websites, or applications for admissions or financial aid, or for completion of other specified "important transactions," it must either "(1) cause such third-party content, websites, or applications to conform with WCAG 2.0 AA and this Decree; or (2) provide equally effective alternate access to qualified individuals with disabilities" until the content can be remediated. Id. ¶¶ 21(d) & (e).
- "Videos embedded within the home page of each academic division and Vice-Presidential office, and all videos relating to the completion of critical or important transactions must also comply with WCAG 2.0 AA." Id. ¶ 22(a). Other forms of specified video content must be remediated upon request. Id. ¶ 32.
- Documents posted by the University's various "offices, divisions, and departments must comply with WCAG 2.0 AA," although the University may seek exemptions to this requirement if "(1) the documents are of interest to a specific and limited audience (e.g., researchers in a particular academic discipline); (2) the set of documents requiring remediation to conform with WCAG 2.0 AA is voluminous (i.e., the total page count of the electronic documents that reside on a single web page exceeds 100 pages), or is—from a technical perspective—exceptionally difficult to remediate; and (3) the documents are presented in such a way that individuals with disabilities are able to identify documents of particular interest and request remediation of those documents." Id. ¶ 22(b).
- Learning management software applications used to plan, create, administer, document, track, report, deliver, and maintain electronic educational courses and course content and to assess student performance generally must be brought into WCAG 2.0 AA compliance by the end of the 2016–17 academic year. Id. ¶ 25.
- Curricular materials (e.g., textbooks, workbooks, articles, compilations, presentations, collaborative assignments, videos, and images or graphical materials) must be converted into alternate formats upon request by students who have registered with the University's Student Disability Services department. Id. ¶ 28. The Consent Decree further obligates the University to meet with disabled students who register with its Student Disability Services office "before the beginning of each semester to determine whether the student will require curricular materials in alternate formats, what assistive technologies the student uses or needs, and what formats will work with the student's assistive technologies." Id. ¶ 28(b).
- The University must also promulgate an Accessible Technology Policy; modify its technology procurement policies; create an Accessible Educational Resources Portal; create an automated website and web application accessibility testing tool; designate a Web Accessibility Coordinator, an Accessible Technology Coordinator, and an Accessible Technology Specialist (who will audit the University's digital technologies); and create a University Accessibility Committee to be chaired by the University's Vice President for Information Technology. Id. ¶¶ 35-41.
The Consent Decree is of importance to digital health service providers for a number of reasons.
First, while the use of electronic information and telecommunications technologies to support and deliver health care, health information, and health education at a distance is on the rise, relatively little attention has been given to the potential obligations of telehealth service providers to ensure that the services they provide are accessible to and usable by individuals with disabilities. For example, patients who are deaf or who have hearing impairments may not be able to participate in a teleconference with health professionals using telehealth applications that rely solely upon aural communication and that do not provide alternative forms of communication. Similarly, patients who are blind or who have vision disabilities may not be able to use kiosks, video relay services, smartphones, and other apps that communicate information through visual and no other means. The Consent Decree generally reminds all digital health service providers to evaluate whether and to what extent they can and should provide their services to individuals with disabilities in alternative formats and through alternative means.
Second, and on a more granular level, the Consent Decree should be of particular interest to digital health service providers whose operations are subject to the anti-discrimination provisions of Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116. As briefly noted in a prior edition of the Digital Health Law Update, Section 1557 provides that an individual shall not, on the basis of race, color, national origin, sex, age or disability, "be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance...." Id. § 18116(a). The Department of Health and Human Services regulations interpreting Section 1557 obligate covered entities to comply with the very ADA Title II standards DOJ purports to enforce in the Consent Decree. See, e.g., 45 C.F.R. § 92.202(a) (covered entities to effectively communicate with individuals with disabilities as mandated by DOJ's Title II rules); § 92.204(b)(requiring covered entities to "ensure that their health programs and activities provided through Web sites comply with the requirements of Title II of the ADA").
Finally, much attention has been paid over the past six-plus years as to whether and when DOJ might publish standards for website accessibility under Titles II and III of the ADA. DOJ first announced in a July 2010 Advanced Notice of Proposed Rulemaking that it planned to issue such regulations. DOJ, Advance Notice of Proposed Rulemaking, Accessibility of Web Information Services of State and Local Governments and Public Accommodations ("ANPRM"), 75 Fed. Reg. 43460, 43464 (July 26, 2010). However, DOJ has only haltingly pursued website accessibility rulemaking since then. Most recently, DOJ issued a Supplemental Advance Notice of Proposed Rulemaking ("SANPRM") in May 2016 indicating that it was accepting "additional public comment ... to help the Department shape and further its rulemaking efforts" under Title II of the ADA. DOJ, SANPRM, 81 Fed. Reg. 28658 (May 9, 2016). It remains unclear when DOJ will complete this rulemaking effort, although it is worth noting that the comment period for the SANPRM closed October 6, 2016. DOJ, SANPRM; Extension of Comment Period, 81 Fed. Reg. 49908 (July 29, 2016). While the Consent Decree isn't binding on non-parties, and on addressees' claims asserted against a public university, it may very well be a harbinger of Title II (and Title III) regulations to come.
We note that this is only a summary of some of the Consent Decree's many and varied provisions and barely scratches the surface of the federal and state accessibility laws and regulations with which public entities and businesses must comply.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.