Digital Access Legal Update – December 2016

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This is a post about how the law is helping make websites, mobile applications, and other technology more accessible to disabled people. The United States Department of Justice does a lot of work to help disabled people access digital content. Sadly, this will probably change with the new president. Recently the DOJ told a court in Florida that the ADA requires websites to be designed so blind people can use them.  Private advocates work to increase access.  Lawsuits make sure blind people can vote without help.  The law requires university to make sure all students can participate.  A recent case against Miami University in Ohio is a good example of what the law can do.

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This post includes legal developments about digital accessibility between May 8, 2016 and December 12, 2016. It supplements Lainey Feingold’s digital accessibility legal update presentations. Visit LFLegal Speaking Page for information about conferences, webinars, and other presentations.

This update is part of an occasional series about recent legal developments impacting technology and information access for people with disabilities. Access to the digital world is a civil right, and there is a lot happening in the legal space. Previous updates can be found on the Legal Update Page.

This is the final update during the Obama administration, an eight year period that has seen an explosion of legal activity by the federal government advancing digital accessibility. I wrote two pieces about how I think the election will impact the legal push for digital accessibility.

First, I wrote the futuristic (and frightening) Post-Trump Digital #A11y Legal Update. When I remembered that digital accessibility was here to stay, and that advocacy (both legal and otherwise) would continue in the new administration, I wrote a more optimistic post titled Digital Accessibility in the New Political Reality.

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The series is illustrated by a toolbox because law has proven an effective tool to improve the accessibility and usability of digital content, print information and technology for everyone. There are many ways to use the law, reflected by the many tools in the toolbox and by the updates below.

We are certain to lose some tools after January 20, 2017, but many will remain. Advocates and their lawyers will use them to the fullest because, as the words of Martin Luther King remind us, “The arc of the moral universe is long, but it bends towards justice.”

In this post you will find information about the following:

Will 508 Refresh become a reality?

As of this writing, the painfully slow Section 508 refresh process is still not concluded. This means there are still no updated rules governing the purchase of accessible information and technology by the federal government. The old rules have been in effect since 2000. It goes without saying that a lot has changed since then. Federal government vendors deserve a current set of standards.

Due dates for final regulations have come and gone. Will anything come out before the inauguration? Your guess is as good as mine. Read the Access Board’s September 14, 2016 Update.

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Department of Justice Continues to Mandate Digital Accessibility

We can expect to experience a radical shift in the Department of Justice’s Office of Civil Rights when the new administration takes office on January 20. Still, the work the Department of Justice has done for over a decade to enforce the Americans with Disabilities Act in the Digital space can be slowed, or temporarily halted, but it cannot be erased overnight. I would say not ever.

For all the DOJ’s digital accessibility enforcement efforts, visit the Department’s Accessible Technology Page. It includes settlements, investigations and court filings dating back to 2003 that involve access to information and technology. Another list of DOJ accessibility settlements is available from the Partnership on Employment and Accessible Technology.

Within the period covered by this update:

On December 16, 2016, the DOJ filed papers in a federal case in Florida to give the judge a simple message: The Americans with Disabilities Act covers websites and requires that they be accessible unless that would cause an undue burden or fundamental alteration.

The lawsuit was brought by a blind customer against the Winn-Dixie grocery chain. In entering the case, the Department explained

. . . the United States respectfully submits this Statement of Interest to clarify public accommodations’ longstanding obligation to ensure that individuals with disabilities are not excluded, denied services, or treated differently than other individuals because of the absence of auxiliary aids and services, such as accessible electronic technology. This obligation means that websites of places of public accommodation, such as grocery stores, must be accessible to people who are blind, unless the public accommodation can demonstrate that doing so would result in a fundamental alteration or undue burden. US Department of Justice Statement of Interest in Winn-Dixie web case

In other developments

  • In October, 2016, the Department published its accessibility consent decree with Miami University. Read about the Miami University case later in this post.
  • On June 9, 2016, the Department of Justice announced another settlement as part of its Project Civic Action initiative. As with previous agreements, the settlement with the city of Milwaukee, Wisconsin used the Web Content Accessibility Guidelines (WCAG) 2.0 AA as the accessibility standard and mandated usability testing with disabled people.The settlement also required appointment of an accessibility coordinator, a prominent statement of the accessibility initiative, and included other features designed to bake accessibility into the processes of the City. Read the DOJ settlement with Milwaukee. The digital accessibility provisions start at Section 50.
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Right to Vote

Not surprising in an election year, there has been significant legal activity to enforce the right of blind people to vote independently, privately, and confidentiality — qualities that require accessibility!

  • On September 20, 2016, a settlement was announced in a federal lawsuit brought by blind voters in San Mateo County, California. The settlement ensures that blind voters will be able to cast absentee ballots independently. Read a news article about the San Mateo accessible voting case. Read the September 2016 post written by the lawyers for the blind voters at Rosen, Bien, Galvan & Grunfeld.
  • On May 11, 2016, a federal court in Ohio issued the first ruling in a voting rights case brought by blind voters in the state about Ohio’s inaccessible absentee ballot program. The judge ruled that the state’s absentee voting system discriminated against blind voters. But he also ruled that it would fundamentally alter the voting system to install and certify accessible voting software before the November election. As have other courts, the judge in Ohio recognized that the right to vote includes the right to vote privately and confidentially:

    The inability of disabled voters to vote absentee in a private and independent manner evidences that these voters do not have the same meaningful access to mail-in absentee voting that non-disabled voters enjoy. Federal Judge George Smith in the Ohio accessible voting case.

    Read a news article about the Ohio judge’s accessible voting decision.

  • On June 9 the National Federation of the Blind and blind New York state voters filed a lawsuit against New York for inaccessible online voter registration. The ACLU, Disability Rights Advocates, and the Baltimore firm of Brown, Goldstein & Levy are representing the NFB and individual blind voters. Read the New York voting rights press release.
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Right to Learn

Just as the Department of Justice has been an accessibility champion under President Obama, so too has the Department of Education been a leader in enforcing the civil rights of disabled students. Sadly, this is likely to change after January 21, 2017.

But regardless of what happens with federal civil rights enforcers, disabled people and their lawyers will have tools at their disposal to protect the right to access digital content that every student deserves.

Developments for this update are the following

  • On October 17, 2016 the National Federation of the Blind announced settlements with Miami University (Ohio) on behalf of a blind student denied full access to educational offerings at the school. Among other things:

    Miami University will change its practices for obtaining and utilizing technology, including requirements to make its website accessible, to ensure Learning Management Software is accessible, and to educate faculty and staff about the importance of accessibility and how to achieve this. It will also be easier for students to obtain accessible course materials in all formats, including ebooks and Braille The US Department of Justice was also involved in the case, which resulted in two coordinated agreements.NFB press release

    Disability Rights Ohio, Brown Goldstein & Levy, and Ohio State law professor Ruth Colker were involved in the comprehensive resolution of the student’s civil rights claims.

  • In late May, it was reported that the United States Department of Education was investigating 350 education institutions for web accessibility issues. Corporate firm Reed Smith, a law firm that represents school boards and other agencies across the country, first reported the investigations. Read an article about the DOE website investigations.
  • And in late June, the Department of Education announced a settlement of eleven of those investigations in a press release titled “Settlements Reached in Seven States, One Territory to Ensure Website Accessibility for People with Disabilities.
  • In November, 2016, the TRE Legal Office and the Legal Aid Society- Employment Law Center announced a settlement with Siskiyou Joint Community College District requiring accessible instructional materials. Read about the Siskiyou settlement. The settlement resolved claims filed by a blind student under California law and the Americans with Disabilities Act.
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Right to Healthcare Information

Accessibility in healthcare is critical to protect the privacy and confidentiality of healthcare information. Accessibility teams at many healthcare companies, insurance providers and hospitals are building an accessibility infrastructure. Humana and Anthem, Inc., two companies that participated in Structured Negotiation, have demonstrated a commitment to all customers by maintaining strong accessibility programs.

Recent developments in health care accessibility include the following:

  • New regulations under Section 1557 of the Affordable Care Act are welcomed news to anyone who cares about accessible information and technology. Unfortunately, these regulations are at risk if the Republicans make good on threats to dismantle Obamacare, leaving the healthcare of millions of Americans at risk.Section 92.204 of the new rules, designed to ensure “Nondiscrimination in Health Programs
    and Activities” became effective in July of this year. Among other things, the regulations provide that

    Covered entities shall ensure that their health programs or activities provided through electronic and
    information technology are accessible to individuals with disabilities, unless doing so would result in undue
    financial and administrative burdens or a fundamental alteration in the nature of the health programs or activities.

    This section can be found on page 97 of the 99 page document that includes both the new ACA rules and the explanation from the United States Department of Health and Human Services. Read the Final Affordable Care Act Rule on Nondiscrimination in Health Programs in the Federal Register.

  • On the 26th anniversary of the ADA (July 26, 2016) Maura Healey’s office and the National Federation of the Blind announced a landmark agreement to make health care kiosks accessible to blind consumers. The announcement was but one of several collaborations between Massachusetts’s top lawyer and the NFB. Other efforts that have advanced accessibility include the 2013 agreement on web and mobile accessibility with Monster, Inc. Healey’s office should serve as a role model for government enforcement if the federal Department of Justice, as expected, ceases to be an ally in the coming years.
  • On December 9, 2016, the US Government Accountability Office (GAO) finally issued a long awaited report on the delivery of talking, braille and large print prescription labels in the nation’s pharmacies.As readers of this website know, The American Council of the Blind and others have used Structured Negotiation to work with national pharmacy chains on this critical health and safety issue. Read the Spring 2016 Talking Prescription Label Update. There is more to do before every blind person in the country has access to prescription labels they can read.
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Right to Financial Information

There have been several developments in the digital accessibility financial space since the last legal update. This is not surprising. Accessibility, when it comes to finance, is core to privacy and confidentiality. Since 2000, when we negotiated the first online banking accessibility agreement in Structured Negotiation with Bank of America, many of the the country’s financial institutions have been on the forefront of private sector accessibility efforts. Recent developments include

    • In June 2016 E*Trade announced its accessibility initiative, reached as a result of Structured Negotiation (no lawsuit needed). Read the E*Trade accessibility press release. The initiative covers the company’s web, mobile and trading platform products.

You can read the full agreement here.


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Right to Transportation

On September 20 two new lawsuits were filed against companies that ignored the need to make mobile applications accessible. The suits were filed in federal court in Texas against ridesharing companies Get Me and Fare. The companies came to Austin when Uber and Lyft left the City because of fingerprint requirements for ridesharing drivers. The lawsuits were filed by the National Federation of the Blind and blind Austin residents. The TRE Legal Practice and Disability Rights Texas are representing the plaintiffs.

Read Tim Elder’s post about why the Austin lawsuits were necesssary

Although not directly a digital accessibility update, the right to transportation category brings to mind a recent non-digital victory for rideshare riders who use guide dogs. In December, 2016 the settlement of a class action lawsuit brought by the National Federation of the Blind against Uber was approved by a federal judge. The settlement requires Uber to take certain steps designed to ensure that Uber drivers do not leave riders with guide dogs stranded — something that happens all too frequently.

The NFB was represented by the TRE Legal practice, Disability Rights Advocates, and Rosen, Bien, Galvan & Grunfeld.

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Right to Entertainment