The Dentists Insurance Company (TDIC) has noted an increase in calls to its Risk Management Advice Line from dentists who are facing AwDA digital accessibility lawsuits. Read more about the law and reasonable accessibility as well as the risks of noncompliance and benefits of compliance.
In recent years, a steadily rising wave of litigation based on infractions against the AwDA has impacted businesses of all types throughout the United States. While many of these suits are grounded in physical barriers to access, “click by” lawsuits are being filed in increasing numbers against businesses for digital violations.
More than 2,800 digital accessibility lawsuits were filed in federal courts in 2021, a 14% increase from those filed in 2020, according to Seyfarth Shaw, a firm that annually reports the number of lawsuits filed for Title III. Since 2013, more digital accessibility lawsuits have been filed in California than in any other state (5,930), with more than 500 of those being filed since the beginning of 2022.
The Dentists Insurance Company (TDIC) has noted an increase in calls to its Risk Management Advice Line from dentists who are facing AwDA digital accessibility lawsuits. TDIC’s risk management analysts offer guidance on accessibility law and compliance.
If you are confused about the laws regarding accessibility and compliance, you are not alone! Website compliance is notoriously complex. At a high level, the AwDA requires certain businesses to provide accommodations for people with disabilities. Dental offices fall under public accommodations requirements (Title I and Title III) and, in addition to physical accommodations on their premises, must have websites that offer “reasonable accessibility” to people with disabilities. These criteria include, but are not limited to:
Dental practices that achieve compliance with Titles I and III of the AwDA benefit not only from reduced legal risk but also from improvements in user experience and the ability to reach a larger patient base. According to the Center on Disability at the Public Health Institute, over 10% of the population of California is considered disabled, with almost half of those individuals dealing with vision or hearing loss that affects their ability to fully utilize digital resources. An aging population increases the likelihood of future users needing accessible digital formats. Website accessibility also helps those experiencing situational or temporary disabilities, such as injuries, which may affect how a person accesses information digitally.
Creating and maintaining an AwDA-compliant website helps protect your practice against lawsuits and fines, in addition to providing needed accommodations for current and potential patients. Failure to create an AwDA-compliant website could open your practice to lawsuits, financial liabilities and damage to your brand reputation.
Unfortunately, because compliance can be complicated, small business websites are low-hanging fruit for predatory litigation. In California, minimum damages for a first offense are $4,000 and can multiply for every site revisit — as much as $25,000 to $30,000 in legal fees or mediation if not covered by your dental business liability insurer. Dentists aren’t expected to be web experts nor have web content that is updated as often as e-commerce businesses, so their sites are less likely to be accessible, making them particularly vulnerable to anyone targeting noncompliant websites.
A claim handled by TDIC illustrates the need to check website compliance with AwDA guidelines. A dentist was sued for unlawful discrimination by a man who claimed that he was completely deaf and accused the dental office of preventing him from fully and equally accessing video content on the practice’s website.
The plaintiff claimed that he was a prospective patient and was looking for information about the dental office online. According to the lawsuit, the website offered videos of patient reviews intended to attract new patients, but the plaintiff was unable to access the content fully and equally because it lacked closed captioning for the audio. The plaintiff alleged that his inability to access the video content caused him “difficulty and discomfort” and deterred him from pursuing oral health services with the dental office.
The dentist confirmed that the plaintiff was not a patient of record and had never scheduled an appointment with the dental office. The plaintiff claimed that although he was not a patient, he was visiting the website to potentially seek out services from the dental office. He also revealed that his visit to the office’s website was made in part in the capacity of a tester — someone who visits a public accommodation with the intent of establishing whether the public accommodation discriminates against people with disabilities. The courts in California currently allow “tester” litigation.
In this case, the dental office’s website was found to be noncompliant as alleged, and TDIC worked with the plaintiff’s attorney to settle the case.
“The majority of these lawsuits are filed without notice,” said Mark Gibson, an attorney who specializes in defending AwDA cases. “Many plaintiffs are targeting dental offices for profit and have no intention of becoming patients. They have little interest in giving the office notice or an opportunity to fix it before filing suit, as that may reduce the value of their case.” Gibson advises, “Since these suits can come without warning, the best defense is to be proactive in auditing and regularly updating the website.”
Just like your dental practice, your site must be accessible to new and existing patients, and you can take steps to best represent your practice and minimize legal risks.
Practice leaders should ensure that the individuals or companies hired to build or update the website are both aware of the accessibility standards and working to ensure your website adheres to those requirements for compliance. Look for a web designer experienced in Web Content Accessibility Guidelines (WCAG) or ask someone who specializes in website accessibility auditing to recommend a designer.
Some of the basic pieces to achieving compliance are:
CDA members can also log in to cda.org to access a helpful guide on AwDA and state laws regarding accessibility.
TDIC’s Risk Management experts recommend that dental practices update their websites yearly and whenever there is a significant change in staff, services or practice hours to ensure that their websites are a current representation of their practices. Regular website updates also help with Google search engine (SEO) rankings. This means if your website is regularly updated, you’ll have a better chance of showing up in a Google search when a potential patient searches for a dentist in your area.
The digital face of your practice can comply with federal web content standards to accommodate the needs of visitors while providing relevant information and resources for your patients. A best practice is to designate one member of the practice team to review the website on a regular basis (quarterly for large practices and semi-annually for smaller practices) and verify:
It is unfortunate that a growing number of plaintiffs and their attorneys are leveraging AwDA compliance to pursue personal profit; however, the trend underscores the need to make dental practices physically and digitally accessible and welcoming to patients with disabilities. Your website may be a prospective patient’s first impression of your practice and your team. Ensure it demonstrates your adherence to standards and commitment to inclusive experiences.
TDIC’s Risk Management Advice Line is a benefit of CDA membership. Schedule a consultation with an experienced risk management analyst or call1.877.269.8844. Reprinted with permission from the California Dental Association, copyright December 2022.