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July 25, 2016

New Rules Issued on "Meaningful Access" to a Health Care Provider's Website under the Affordable Care Act

Health care providers received key guidance on how they provide “meaningful access” to health programs or services offered by electronic information technology to individuals with disabilities.  Effective July 18, 2016, the U.S. Department of Health and Human Services (HHS) issued regulations that delineate what providers must do to comply with the “meaningful access” requirement under the Affordable Care Act (ACA).

Section 1557 of the ACA makes it unlawful for any health care provider, such as a hospital or doctor, that receives funding from the federal government to refuse to treat an individual, or to otherwise discriminate against an individual, based on his or her race, color, national origin, sex, age or disability.

This section of the ACA is consistent with existing requirements under the Americans with Disabilities Act.  As such, when a provider offers health programs or services through electronic information technology, such programs and services must be accessible to individuals with disabilities.  Non-compliance with the foregoing is permissible only if the provider can show undue financial and administrative burdens or a fundamental alteration in the nature of the program or activity.

While HHS did not specify a website accessibility standard in the new rule, it did indicate that compliance with accessibility requirements would be “difficult” for covered providers that do not adhere “to standards such as the WCAG 2.0 AA standards or the Section 508 standards.”

All indicators point to WCAG 2.0 AA as the standard to use when working to improve the accessibility of a website.  The federal government has issued a proposed rule to replace the existing Section 508 standards (which were promulgated under the Rehabilitation Act of 1973).  Most experts also consider the Section 508 standards to be largely outdated.  WCAG 2.0, on the other hand, has gained wide acceptance.

So what must a covered health care provider do in order to ensure its website complies with WCAG 2.0 AA?

WCAG 2.0 sets forth twelve general guidelines:

  1. Provide text alternatives for any non-text content so that it can be changed into other forms people need, such as large print, braille, speech, symbols or simpler language.
  2. Provide alternatives for time-based media.
  3. Create content that can be presented in different ways without losing information or structure.
  4. Make it easier for users to see and hear content, including separating foreground from background.
  5. Make all functionality available from a keyboard.
  6. Provide users enough time to read and use content.
  7. Do not design content in a way that is known to cause seizures.
  8. Provide ways to help users navigate, find content, and determine where they are.
  9. Make text content readable and understandable.
  10. Make web pages appear and operate in predictable ways.
  11. Help users avoid and correct mistakes.
  12. Maximize compatibility with current and future user agents, including assistive technologies.

According to W3C, the private consortium of experts that developed WCAG 2.0, “[f]ollowing these guidelines will make content accessible to a wider range of people with disabilities, including blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, photosensitivity and combinations of these.”

Although the potential liability for non-compliance is still unknown, it would be prudent for covered health care providers to assess the accessibility of their websites to ensure that they can be used independently by individuals with a variety of disabilities.  Starting July 18, 2016, WCAG 2.0 AA looks to be the gold standard.

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