I'll keep this post short. Yesterday, the Department of Health and Human Services (HHS) announced a new Notice of Proposed Rulemaking (NPRM) that amends HHS's Section 504 regulation. Overall, this is a positive step. Section 504 protects people with disabilities against discrimination in federally-funded and federally-conducted programs, services, and activities. Another positive step is that HHS's NPRM recognizes the importance of web and digital accessibility. The problem is that it follows lock-step with DOJ's not-so-awesome Title II NPRM. When applied to the healthcare context, the problems with this approach only get magnified.
What Does the NPRM Say About Web and Digital Accessibility?
The NPRM is available on the Federal Register website. It takes a few days for the folks at the Government Printing Office to publish the "official" version (with proper pagination) but an unofficial copy is what we've got for now. Flipping all the way down to page 390 (yes, this is a long regulation), HHS proposes adding a new Subpart I to address web, mobile, and kiosk accessibility. Proposed section 84.84(b) requires that, two years after the final regulation is published that
a recipient with fifteen or more employees shall ensure that the web content and mobile apps it makes available to members of the public or uses to offer programs or activities to members of the public comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the recipient can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a program or activity or undue financial and administrative burdens.
The regulation also proposes giving three years for recipients with fewer than 15 employees to meet this same threshold.
The proposed regulation also lists a number of proposed exceptions-- such as archived web content, password protected course content, etc-- which mirror the same exceptions that are outlined in the DOJ regulation.
Password Protected Documents Are Exempted???
I want to focus on just one exception in the HHS NPRM rule. Section 84.85(g) states that,
The requirements of § 84.84 do not apply to the following.... (g) Individualized, password-protected documents. Conventional electronic documents that are: (1) About a specific individual, their property, or their account; and (2) Password-protected or otherwise secured.
This exception would cover any document in a patent record system because every health care system is secure in order to meet HIPAA requirements. In my post about the DOJ rule, I questioned whether DOJ was really proposing that one's patient records don't have to be accessible. I considered inaccessible patient records as the worst case scenario because nothing is more vital than one's health and people with disabilities are particularly susceptible to increased health risks.
Well, apparently both DOJ and HHS find this worst case scenario acceptable. While DOJ did note the effective communication requirement still applies and that "these documents would generally still need to be provided in an accessible format if a person with a disability requests them," I can't see this happening in the vast majority of real world situations. Instead, people with disabilities will just call their doctor for an explanation of their medical condition because they will be unwilling to wait for several weeks while the electronic documents are being made accessible.
The proposed approach creates a number of headaches for patients with disabilities. First, it robs them of their independence because it forces them to request accessible versions of their health records every time that there is an update to those records. Second, because there is no obligation for health care providers to maintain the accessible versions of its records, it puts the burden of maintaining health records on the patient. Third, it creates no incentives for records management systems or patient records to ever become accessible in the first place-- and this means that the first two problems will only get compounded over time.
When HHS published its NPRM, it gave hardly any analysis for why it was adopting such a crazy rule. Instead, it simply stated,
In addition, the Department is aware that DOJ has issued a Preliminary Regulatory Impact Analysis to accompany its rule proposing requirements for public entities covered by title II of the ADA and that its requirements are consistent with this Department’s subpart I. DOJ examined the costs of its proposal for all public entities covered by title II and stated that the rule will not be unduly burdensome or costly for public entities. Because this Department’s rule is consistent with the DOJ proposed rule, we believe that the DOJ analysis provides further support for our belief that subpart I will not be unduly burdensome or costly for the Department’s recipients that are public entities.
A Better Approach
Websites, electronic documents, and kiosks, of course, should be made accessible for people with disabilities. As I mentioned in my earlier post, however, simply using WCAG 2.1 A/AA as the benchmark for litigation is the wrong approach. Instead, it should ultimately come down to effective communication-- and that WCAG 2.1 A/AA should be used as a safe harbor for compliance.
Following this approach means that trivial violations of WCAG that have little to no impact on accessibility don't give rise to lawsuits. Accessibility is ultimately tied to context while violations of WCAG are not. For instance, an improperly coded heading may or may not be significant based on how other headings are used on a page-- but they will always be a level A violation of WCAG 1.3.1. This approach offers some degree of flexibility in making goods and services accessible because organizations can focus on significant accessibility challenges instead of chasing WCAG conformance. Lastly, this approach also keeps the pressure on future accessibility instead of using exceptions to perpetuate an inaccessible world.
Federal Agencies Should Wait for DOJ
As I alluded to earlier, the new DOJ Title II web accessibility NPRM is controversial. If federal agencies really want to follow DOJ's lead, they should wait for the dust to settle around that NPRM instead of copying the current draft into their own. Otherwise, they will have to read through and analyze a ton of comments when they will likely want to just harmonize their web requirements to DOJ's final rule.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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