proposed regulations

To Buy or Not: The Amicus Brief in Robles and Winn-Dixie

April 4, 2018 by William Goren 3 Comments

Hope everyone had or is having a happy holiday. Also, baseball season is underway. The Chicago White Sox are up-and-coming, but their time may not be yet. The Chicago Cubs going into the season are one of the top three to go to the World Series. The Atlanta Braves are not going to be so good. Good luck to your team. Also, if you have Villanova to win it all, congrats! What a great team and a great start to the year for the City of Philadelphia!

Today’s blog entry is analyzing an Amicus brief filed by numerous folks with respect to the decision in Robles, discussed here, and Winn-Dixie, discussed here, where the lower courts disposed of the matter favorably to the plaintiff with respect to accessibility of websites. The Amicus brief was filed by numerous trade associations, including: Restaurant Law Center; American Bankers Association; American Hotel and Lodging Association; American Resort Developers Association; Asian American Hotel Owners Association; Chamber of Commerce of the United States; International Council of Shopping Centers; National Association of Convenience Stores; National Association of Realtors; National Association of Theater Owners; National Federation of Independent Businesses; National Multifamily Housing Council; and the National Retail Federation. The brief I am analyzing is the one filed in the Winn-Dixie case where the lower court said that WCAG 2.0 was the accessibility standard that had to be met. Virtually an identical brief was filed in Robles.

I thought it would be fun to highlight the arguments and then next to the argument explain whether I buy it or not. So, the categories of argument and conclusions are different than our usual ones.

Argument

If the court affirmed the lower court’s decision at issue on this appeal the members of the various trade associations will be forced to do the impossible and try to comply with nonexistent, undefined, and potentially ever-changing standards of website accessibility.
I’m buying sort of: I agree that complying with the lower court’s decision means complying with undefined, and potentially ever-changing standards of website accessibility. While I agree that the standards are undefined and potentially ever-changing, I don’t agree that standards are nonexistent. That is, in this particular case, the lower court went with Web Content Accessibility Guidelines 2.0. Also, when it comes to title III accessibility, the standard is meaningful access, a standard that does exist.
Businesses are now subject to repeated lawsuits concerning their related noncompliance with nonstatutory, nonregulatory, nonbinding accessibility standards.
I’m buying. Meaningful access comes from the common law and there are no regulations dealing with website accessibility.
The District Court’s decision is inconsistent with the actual language of title III and its implementing regulations, which limits the term “place of public accommodation,” to physical establishments.
I’m not buying. As we have discussed numerous times in our blog, such as here, whether a physical establishment is necessary for it to be considered a place of public accommodation under title III is very much open to interpretation for the reasons discussed in those blog entries. Also, the ADA itself makes clear that it is supposed to evolve with technology.
Businesses can try in good faith to modify the websites to allow access to persons with disabilities, but the lack of definite regulations and agency guidance means there is no safe haven for compliance. Such uncertainty not only violates basic principles of administrative law, but also contravenes fundamental notions of due process as no definitive guidance instructs businesses how to operate ADA compliant websites.
I’m not buying: Lawyers love certainty, but there is rarely a true safe haven. With respect to it violating administrative law, I don’t see how. True, regulations are proposed, go through a period of commenting, and then are issued in final form. Here regulations were proposed, but then dropped. If the lack of regulations is a problem and the regulations should not have been dropped under the law, why isn’t a writ of mandamus being sought to compel the federal government to issue the regulations it started (more on that later). With respect to due process, this isn’t a criminal situation. The case law is clear that what is required is meaningful access. So, everybody knows exactly what standard needs to be satisfied to comply with the ADA even if there are dozens of different ways to satisfy that standard. If persons with disabilities are involved in the website design process, it should be fairly obvious as to whether the website is meaningfully accessible to persons with disabilities. I do want to add that when it comes to website accessibility, be sure to assess it for voice dictation, screen reader compliance, and accessibility for the deaf/Deaf/hard of hearing.
While the statute does not define the term “place,” the term is best read as referring to, “a physical environment,” according to Merriam-Webster.com
Not buying: “place,” can have different meanings. I went online to the same dictionary cited in the brief, Merriam-Webster.com. It is true that #1a talks about “a physical environment.” However, #1b refers to a, “place” as meaning, “a way for admission or transit.” Using a public accommodation’s website is certainly a way for admission or transit to that particular public accommodation.
Place equates with physical facilities in 42 U.S.C. §12181(7). Further, had Congress intended title III to apply to all businesses offering goods and services to the public, it would not have limited the defined list of public accommodations to only those offered at a place
Not buying: As many decisions have mentioned, travel services are listed as one of the places of public accommodations, and they have never required a person to access a physical facility in order to use those services.
28 C.F.R. §36.104 defines a place of public accommodation as a facility. Further, facility refers to all or any portion of building, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walk, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.
I’m not buying necessarily: The reference to this particular Code of Federal Regulations is on the surface appealing. However, it ignores 28 C.F.R. §36.102(b), which makes clear that the requirements for places of public accommodations to comply with the ADA extend beyond the matter of simple physical places.
Websites are not located in any particular physical place or facility, and therefore, are not places of public accommodation under title III. Although a chat room or other online form might be referred to metaphorically as a location or place, a physical presence is necessary to constitute a place.
I’m not buying: As we have discussed numerous times before, this very much depends upon the jurisdiction you are in. It certainly is not a slam dunk that a physical place is necessary in order to be covered by title III of the ADA. Further, as we have discussed earlier, the term “place,” is subject to different definitions.
The Department of Justice at 28 C.F.R. §36, Appendix A, has taken the position that title III covers access to websites of public accommodations. Such informal statements are not entitled to the force and effect of law. Regardless, DOJ has been inconsistent in its own position and has admitted that there is uncertainty regarding the applicability of the ADA to websites.
I’m not buying and I’m buying: It is true that the Department of Justice has taken the position that title III covers access to websites of public accommodations. They also in an Amicus brief took that position as well and we discussed that Amicus brief here. Whether the Appendix and the Amicus brief are entitled to deference is very much an open question. See this blog entry for example. Finally, saying that there is uncertainty regarding the applicability of the ADA to websites does nothing more than acknowledge the reality of the current state of the case law.
While Congress may amend the ADA to define a website as a place of public accommodation, it has not yet done so.
I’m buying: This is the strongest argument against websites being a place of public accommodations. Congress did have the opportunity to amend the ADA when it did the amendments to the ADA that ultimately passed. Congress in passing the amendments, did not eliminate the word “place,” from title III of the ADA nor did they redo the definition so that it was clear that physical facilities did not generally have to be involved. Under our system of government, it is up to Congress to make the laws and here they passed up a chance to redefine things. On the other hand, courts have said that just because Congress doesn’t do something, that doesn’t mean that congressional intent can be inferred from that nonaction. Finally, travel services, as mentioned above, does appear in the list of public accommodations.
Courts analyzing whether websites are subject to title III of the ADA break down into two different approaches: spirit of the law and Nexus.
I’m not buying: I don’t like the names of the categories. I would prefer “focus on public accommodations,” and “gateway.” Also, there are two other categories as well, and they are: physical places only, and an outlier, which we discussed in the Robles blog entry, that a person has to be able to go into the store itself even if the website is a gateway before they can bring a title III suit.
Spirit of the law cases ask whether businesses offer goods or services to the public via any platform and are focused on achieving a particular result, rather than effectuating the clear text of the ADA.
I’m not buying: Again, I don’t like the term “spirit of the law.” I would prefer, “focus on public accommodation.” What this line of cases does is focus on whether a public accommodation is involved i.e. it asks if one of the categories in 42 U.S.C. 12181(7) are in play. If they are, then the website must be meaningfully accessible to persons with disabilities. I also disagree that the cases are focused on results any more than any other decision by any other judge. If you are a judicial realist, you would argue that every decision of a judge is focused on results. I get judicial realism on some level, studied it in college, but as a lawyer that is difficult to square with what you do as a lawyer in the first place or why you continue in the business. If law is so arbitrary, then one has to question the credibility of the whole process.
Under the nexus approach, a business violates title III only when it impedes a disabled individual’s full and equal enjoyment of the goods and services offered at that business physical establishment.
I’m not buying: As mentioned above, I prefer gateway rather than nexus. Gateway is easier to understand and less legalistic. This line of cases is looking to see if there is a connection between the website and what is offered in the stores. If there is, then title III applies. Further, the Amicus brief confuses the categories by referring to the outlier case that says you actually have to be in the store physically in addition to accessing the website in order for the gateway theory to apply. It doesn’t work that way. They are two different theories.
The same defendant may get different results depending upon the jurisdiction the case is litigated in. For example, Netflix had that happen to them in California and in Massachusetts.
I’m buying: This is absolutely true. However, why not have the defendant engage in preventive law so that the problem doesn’t occur. Also, if a lack of regulations is a problem, why not, as mentioned above, seek a writ of mandamus compelling regulation to be issued or bring political pressure so that the regulations get done.
Existing regulations currently contain no provision governing the accessibility of websites or online content.
I’m buying: As mentioned in the brief, in 2010, a notice of proposed rulemaking was issued, but the Trump administration put it all on the inactive list.
Given that no regulations currently impose clearly defined obligations regarding website accessibility, businesses are simply not on notice as to what title III may require of them.
I’m not buying: The case law is clear that what is required is meaningful access. Instead of looking at this as a problem, businesses can look at it as an opportunity. That is, the lack of regulations give businesses all kinds of possibilities to get to meaningful access without being put in the straitjacket of regulations. So, the standard is clear. How you get there is another matter. Since the standard is clear, I’m not buying the due process argument. Again, this is not a criminal situation, which to my mind makes all the difference in the world with respect to the due process concerns.
Web Content Accessibility Guidelines are a set of non-mandatory accessibility guideline developed by the web accessibility initiative, a subgroup of the World Wide Web consortium. It is a private-sector international community member organization where full-time staff and the public work together to develop web standards.
I’m buying: Even so, why not use it as a matter of preventive law?
While the DOJ has referenced the WCAG guidelines, that did not turn them into mandatory rules nor into any rules entitled to deference. Further, WCAG have different categories of compliance, and so, a business would not know what level of compliance to meet. §508 also has its own regulations. So, which one does a business use?
I’m buying but: I can’t argue with this. However, it doesn’t take away from the fact that the standard required by the ADA is meaningful access and that WCAG or §508 can be used as a preventive law matter. As mentioned above, the lack of regulations can be an opportunity for businesses rather than an obstacle. It all depends how you look at it.
The never ending uncertainty underscores the importance of creating website accessibility guidelines through proper notice and comment rulemaking and not through litigation.
I’m buying: But whose fault is that? That is, as court decisions have mentioned the lack of action by the federal government should not give businesses a get out of jail free card to ignore the accessibility of their businesses to persons with disabilities. Again, the standard is there; it’s just how you get there depends.

Conclusions:

When I stepped away from drafting this blog entry, I got to thinking why a writ of mandamus wouldn’t work. That is, some kind of motion to compel the Department of Justice to formulate regulations. The reason it won’t work is because you can’t have it both ways. If the ADA does not apply to websites, then the Department of Justice does not have any reason to issue regulations in the first place since it is out of their jurisdiction. However, if the ADA does apply to websites, then the DOJ is mandated to issue regulations carrying out the ADA and they have not done so in this case. You can’t have it both ways. That is, you can’t argue that the ADA does not apply to the web but DOJ has to issue regulations. How can that be if the ADA doesn’t apply to website to begin with?
Meaningful access is the standard. So, businesses and their coders should take this as an opportunity to work with the disability community (make sure you include voice dictation and screen reader users as well as the deaf/hard of hearing), to come up with creative ways to make sure that their websites are accessible to people with disabilities.
The strongest argument industry has against website accessibility is that Congress passed up a chance when it amended the ADA to include the Internet and places of public accommodations. At the time of the amendments, the Internet was around for sure. That said, as courts have said, there can be lots of reasons why Congress doesn’t act. Also, the ADA was specifically intended to evolve with technology.
It isn’t at all clear that title III of the ADA is entirely focused on facilities as the brief claims.
What is a “place,” is the $64,000 question. Even the same dictionary has different definitions that can take you to very different places (pun intended). As mentioned above, DOJ has suggested that there are situations where a place of public accommodation may not be a physical facility. See this blog entry.
I prefer to think of the possible approaches to website accessibility and the courts as being: physical place only; focus on place of public accommodation; gateway; and you have to be able to show that you have been physically in the store before you can go after Internet inaccessibility (the last one being a complete outlier). The trend has been the gateway approach, but that may be changing to a focus on public accommodation approach.
WCAG and even §508 standards are a good place to look at for building a preventive law system for your website.
Interesting that the brief never mentioned the primary jurisdiction doctrine. That may be because in light of the Trump administration withdrawing the regulations, I don’t see how such an argument could be credible. See this blog entry.

Defenses to Serial Website Litigation

April 21, 2017 by William Goren 1 Comment

My colleague, Richard Hunt, recently blogged on the issue of website accessibility here and here. I want to focus and provide another perspective on his blog entry discussing Robles v. Dominos Pizza LLC 2017 U.S. Dist. LEXIS 53133 (C.D. Cal. March 20, 2017), and Gomez v. Bang and Olufsen America, Inc., 2017 U.S. Dist. LEXIS 15457 (S.D. Fla. February 2, 2017). By way of disclosure, when I was a teenager, with my bar mitzvah money, I bought a pair of Bang and Olufsen speakers for my stereo system. Very sweet music indeed.

Robles Facts:

The lawsuit filed on September 1, 2016, claimed that: 1) Dominos does not permit a user to complete purchases using screen reading software; 2) its mobile application does not permit the blind to access menus and applications on their mobile phone using voice over software; and 3) that the website and mobile App were not in compliance with WCAG (web content accessibility guidelines), 2.0. Since February 2017, Dominos website and its mobile website have included an accessibility banner directing users accessing the website using a screen reader with the following statement: “if you are using a screen reader and are having a problem using this website, please call 800-254-4031 for assistance.” That number is staffed by a live representative responsible for providing blind or visually impaired individuals with assistance using the company’s websites, although callers may experience delays and be placed on hold. Customers can also directly call their local restaurant to order food, purchase goods, or ask questions. Dominos defended on due process grounds.

Robles Reasoning Dismissing the Complaint

The primary jurisdiction doctrine allows the court to stay proceedings or dismiss the complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.
Title III of the ADA applies to services of a place of public accommodation and not to services in a place of public accommodation.
Limiting the ADA to discrimination in the provision of services occurring on the premises of a public accommodation contradicts the plain language of the statute.
The ADA requires auxiliary aids and services unless a fundamental alteration exists.
DOJ has consistently stated that the ADA’s accessibility requirements apply to websites of private companies.
The notice of proposed rulemaking on website accessibility for title III entities was issued in July of 2010 and keeps getting pushed back.
The lack of regulations means a defendant does not have a reasonable opportunity to know what is prohibited. The government could have solved the vagueness problem without time-consuming and costly litigation by merely clarifying what it believed the obligations are for title III entities with respect to their websites.
The lengthy timeline of DOJ’s inaction leaves in-house counsel and others to correctly read legislative tea leaves as to their compliance obligations.
Plaintiff did not address defendant’s due process claims and therefore conceded the issue.
Plaintiff seeking to impose on all regulated persons and entities a WCAG 2.0 requirement without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on the topic flies in the face of due process.
While Access Board guidelines are to the contrary, no deference is owed because those guidelines have yet to be adopted by the DOJ. Similarly, DOJ’s interpretation in a notice of proposed rulemaking is also unpersuasive.
In other litigation, DOJ has said that until the process of establishing specific technical requirement for a particular technology is complete, title III entities have a degree of flexibility in complying with the general requirements of nondiscrimination and effective communication, though they still have to comply. Accordingly, plaintiff failed to articulate why either the provision of a telephone hotline for the visually impaired or compliance with the technical standard other than WCAG 2.0 would not fall within the range of permissible options afforded under the ADA. Similarly, the auxiliary aids requirement is a flexible standard allowing the place of public accommodation to choose among various alternative so long as it results in effective communication.
Seven years has passed since the DOJ first posed the question to the public about website accessibility and the public has not received a satisfactory answer yet.
A case law search revealed not a single case where a court suggested, much less held, that a title III entity has to comply with a particular WCAG conformance level.
The Attorney General was directed by Congress to promulgate regulations clarifying how places of public accommodations must meet their statutory obligations for providing access to the public under the ADA. Further, that mandate includes formulating implementing regulations and rendering technical assistance explaining the responsibilities of covered individuals and institutions. Those regulations and technical assistance are necessary in order to determine what obligations regulated individuals or institutions have to follow in order to comply with title III of the ADA.
Issue of web accessibility obligations require both expertise and uniformity in administration as shown by the DOJ’s multiyear campaign to issue a final rule on this subject.
The court calls on Congress, the Attorney General, and the Department of Justice to take action setting minimum web accessibility standard for the benefit of persons with disabilities, those subject to title III, and the judiciary.

III

Robles Takeaways

In the absence of properly promulgated regulations, defendants have a great deal of flexibility in determining how persons with disabilities access their places of business. All the ADA requires with respect to title III, is meaningful access. So, the lack of regulations presents an opportunity for defendants by giving them maximum flexibility with respect to meaningful access determinations for persons with disabilities. It would certainly help if the defendant involved persons with disabilities in the process. It would also help if they engaged in an interactive process with persons with disabilities.
On the plaintiff side, instead of focusing on WCAG accessibility standards, it is probably better to focus on how meaningful access is being denied.
A big difference exists between the DOJ settlements insisting upon WCAG accessibility standards, such as here, v. a court saying that WCAG standards must be followed.
Plaintiffs insisting on a particular standard for web accessibility rather than focusing on meaningful access may very well face dismissal based upon the primary jurisdiction/due process concerns expressed in Robles.
I don’t look for accessibility of website regulations to be coming down anytime soon.
I am not sure why the plaintiff conceded the due process grounds, intentionally or otherwise. Plaintiff could have argued, for example, that title III requires meaningful access. Determining meaningful access necessarily means an interactive process. Accordingly, due process/primary jurisdiction concerns are misplaced. It is true that the interactive process is a title I requirement, but how else can you determine whether meaningful access is occurring for a particular person with a disability absent an interactive process? Also, the interactive process has been extended outside of title I of the ADA. See here for example.

Gomez Facts:

A legally blind plaintiff tried to use the website to browse and research audio equipment. However, the website is not compatible with screen reader software or any other software making the website accessible to visually impaired customers. Defendant defended on the grounds that the website was not a place of public accommodation under title III of the ADA.

Gomez Reasoning Dismissing the Complaint Without Prejudice

Relying on the 11^th Circuit case of Rendon v. Valleycrest Productions, Inc., the ADA’s regulatory reach is limited to physical, concrete places of public accommodation or anything affecting access to or enjoyment of those physical spaces.
A website wholly unconnected to a physical location is generally not a place of public accommodation under the ADA.
If a plaintiff alleges that a website’s inaccessibility impedes the plaintiff’s access to a specific, physical, concrete space, and establishes some nexus between the website and the physical place of public accommodation, then the plaintiff’s ADA claim can survive a motion to dismiss.
Plaintiff failed to allege any facts that the website impeded his own personal enjoyment of the goods and services offered at its retail locations. Generalized grievances are wholly unconnected any harm he actually suffered at the place of public accommodation (the concrete, physical store), and therefore, are insufficient to survive a motion to dismiss.
Based on the allegations of the complaint, it appeared that plaintiff never intended to utilize Bang and Olufsen’s physical retail location, but instead planned to order audio equipment online and have it delivered to his home.
The ADA does not require places of public accommodation to create full service websites for persons with disabilities.
The ADA does not require a place of public accommodation to have a website at all. Rather, all the ADA requires is that if a retailer chooses it to have a website, the website cannot impede a person with a disability’s full use and enjoyment of the brick and mortar store.
In a footnote, the court said that it recognized that the Internet is an integral part of modern society and Congress is free to amend the ADA to define a website as a place of public accommodation, but it isn’t up to the court, which has no legislative power, to create law where none exist.

Gomez Takeaways

Gomez goes too far with respect to ¶ ¶ 4-7 and should be appealed.
The court’s reasoning requires a person with a disability to actually visit a store in order to have a claim. Such a requirement flies in the face of consumer behavior today whereby brick-and-mortar stores are closing left and right due to consumers buying many things online. Those consumers often times have no intention of actually going into the store and sampling or seeing the product before making that purchase online.
Whether a person ever intends to use a physical retail location should be irrelevant to the inquiry of whether a sufficient nexus exists between the website and the physical location.
True, the ADA does not require places of public accommodation to create full service websites for persons with disabilities, but they should have meaningful access to those websites under title III of the ADA, even assuming “a nexus,” is the proper standard. That is, the gateway theory is certainly becoming the trending view in the courts, but it isn’t universal as discussed in this blog entry and in this blog entry as well.
It goes too far to say if a retailer chooses to have a website, that website cannot impede a person with a disability’s use and enjoyment of the brick and mortar store. That is, requiring a physical presence in the store.
True, Congress missed an opportunity when the ADA was amended to make clear that websites were places of public accommodations. On the other hand, the legislative history of the ADA does say it is supposed to change with technology.
Another court adopts the gateway theory of when a website must be accessible to persons with disabilities, which is certainly the trend. However, this case goes much further by requiring a harm actually suffered at the place of public accommodation. Accordingly, if I was the plaintiff, I would most certainly consider an appeal to the 11^th Circuit as this can’t possibly be right.
This decision mean that person without disabilities can freely shop and buy things online, but people with disabilities have the added requirement of showing a harm from the actual store itself. That simply can’t be right and it eviscerates the whole idea of the ADA, which is to integrate persons with disabilities into every aspect of society.

Proposed Rules of HHS Implementing the Affordable Care Act Dealing with Nondiscrimination in Health Programs and Activities

September 10, 2015 by William Goren 1 Comment

Before getting started on this week’s blog entry, I do want to wish everyone that might be celebrating the Jewish New Year next week a happy new year. Also, because I am one of the people celebrating the Jewish new year and will have family responsibilities all week, I am not anticipating putting up a blog entry for next week. I do anticipate getting a blog entry up the early part of the following week.

The Department of Health and Human Services just issued proposed regulations implementing the Affordable Care Act and dealing with nondiscrimination in health programs and activities. What I thought I would do is highlight the proposed regulations with respect to disability discrimination (the regulations go far beyond disability discrimination-such as even talking about transgender issues-but our focus is going to be solely on disability discrimination). So here goes! I have the blog entry divided into two sections. In the first section, I highlight the disability discrimination provisions of the proposed regulations. In the second section, I list takeaways. I suppose it is possible that the reader could just focus on the takeaway section without looking at the proposed regulations highlight, but I am not sure the reader will want to do that. Nevertheless, the option is there.

1. The proposed regulations implement this statute, which prohibits discrimination on the basis of various things, including disability, in any health program or activity receiving federal financial assistance.

2. Remedies for violations with respect to disability discrimination are tied into the Rehabilitation Act;

3. The effective date of the Affordable Care Act’s implementing regulations dealing with nondiscrimination will be 60 days after publication of the final rule in the Federal Register;

4. Health and Human Services is proposing to apply the nondiscrimination regulations to the following: all health programs and activities, any part of which receives federal financial assistance administered by Health and Human Services; health programs and activities administered by the Department including federally-facilitated marketplaces; and health programs and activities administered by entities established under title I of the Affordable Care Act, including state base marketplaces.

5. Lesser standard for the protection of individuals from discrimination under civil rights laws, including § 504 are not going to happen with respect to the nondiscrimination protections offered by the Affordable Care Act.

6. Auxiliary aids and services have the same definition as contained in the regulations implementing title II of the ADA.

7. The proposed regulations cover: an entity that operates a health program or activity, any part of which receives federal financial assistance; an entity established under title I of the Affordable Care Act that administers a health program or activity; and the Department of Health and Human Services.

I do find the use of the term “and,” a bit funny here. It would seem that “or,” would have been a better fit. I don’t think it matters much, but it theoretically creates a problem of interpretation that didn’t need to be there.

8. A person with a disability is defined in the same manner as under the ADA and under the Rehabilitation Act.

9. “Federal financial assistance,” extends to the entity providing health insurance coverage or services, regardless of whether they are paid directly by the federal government to that entity or to the individual for remittance to the entity providing health insurance coverage or services. This means that if a person is buying coverage under a plan through a subsidy from the federal government, the plan will be deemed to be receiving federal financial assistance even though the plan is not receiving the money directly from the federal government.

10. If an entity has 15 or more employees, the proposed regulations require the entity to have a grievance procedure. Further, they are taking comment on whether a grievance procedure should be mandatory regardless of the size of the employer.

This one I found very interesting because it illustrates a difference between the ADA implementing regulations and the Rehabilitation Act implementing regulations. Under title II of the ADA, 28 C.F.R. § 35.107, a grievance procedure is required if the public entity has 50 or more employees. However, the Rehabilitation Act has a different requirement, 15 employees per 45 C.F.R. § 84.7.

11. A notice requirement exists and the notice must include: a statement that the covered entity does not discriminate on the basis of disability among other things; a statement that the covered entity provides auxiliary aids and services free of charge in a timely manner for individuals with disabilities when such aids and services are necessary to provide an individual with a disability an equal opportunity to benefit from the entity’s health programs or activities; information on how the individual can access the aids and services; contact information for the responsible employee; information about the grievance procedure and information on how to file a grievance; and information on how to file complaint with the Office of Civil Rights of the Department of Health and Human Services.

12. Except in limited circumstances, the proposed regulations do not apply to discrimination by a covered entity against its own employees. Rather, such cases are governed by other laws. The limited circumstances are: the entity is principally engaged in providing for administering health services or health insurance coverage; the entity receives federal financial assistance the primary objective of which is to fund the entity’s employee health benefit program; or the entity is not principally engaged in providing or administering health services or health insurance coverage but operates a health program or activity, which is not an employee health benefit program, that received federal financial assistance (in that particular situation, the regulation applies only with respect to the employee health benefits offered to employees in that health program or activity). In short, the Affordable Care Act nondiscrimination provision only applies to an employer’s employees if the primary purpose of the federal financial assistance is funding employee health benefits regardless of whether the employee health benefit program is self-insured or fully insured by the employer.

13. Prohibits a covered entity from requiring an individual with limited English proficiency to provide his or her own interpreter.

14. Prohibits a covered entity from relying on a minor child to interpret or facilitate communication with limited exceptions (an emergency situation for example).

15. Adopts the effective communication rules of title II of the ADA, which we have discussed here.

16. Establishes specific accessibility standards for new construction and alterations consistent with existing standards under the ADA. The specific guidelines to use depend upon when the facility is constructed or modified.

17. Medical diagnostic equipment will have to be accessible to persons with disabilities under the standards developed by the United States Access Board.

18. Health programs or activities provided through electronic and information technology must be accessible to individuals with disabilities per title II of the ADA unless it would impose undue financial and administrative burdens or result in a fundamental alteration in the nature of an entity’s health program or activities. This particular provision extends beyond the covered entity’s website to all of the covered entity’s electronic and information technology. Health and Human Services specifically seeks comment on that extension.

19. As readers of this blog know, the Department of Justice is insisting upon accessibility of electronic communications to be in accordance with worldwide web accessibility guidelines 2.0. The other option was for the Department to require electronic communications be consistent with § 508 of the Rehabilitation Act. What is interesting is that Health and Human Services decides to go with a general nondiscrimination approach rather than adopt either of these standards and then solicit comment as to whether they should forgo the general nondiscrimination approach in favor § 508 or worldwide accessibility guidelines 2.0.

20. In determining whether an action is an undue burden, covered entity must consider ALL (emphasis mine), of the resources available for use in the funding for operation of the health program or activity. Where an undue financial and administrative burden or a fundamental alteration exists, the covered entity is still required to provide information in a format other than an accessible electronic format that would not result in the undue financial or administrative burden or the fundamental alteration. The focus on all of the resources is consistent with both the EEOC regulations implementing title I of the ADA and the Department of Justice regulations implementing title II of the ADA. Is that the proper focus? Justice Ginsburg in Olmstead has some interesting views to consider on that.

21. Reasonable modifications in policies, practices, or procedures must be made in order to allow a person with a disability access unless a fundamental alteration to the health program or activity is involved.

22. Health and human services is proposing that the rule apply to all issuers receiving federal financial assistance regardless of whether their products are offered through the marketplace, outside the marketplace, an individual or group health insurance markets, or as an employee health benefit program through an employer-sponsored group health plan.

23. Plans are not required to cover any particular benefit or service, but their plan cannot operate in a discriminatory manner with respect to their coverage.

24. The proposed regulations prohibit discrimination based upon association with a member of a protected class, including a person with a disability.

25. A private cause of action and damages exist for violation of the law per § 504 of the Rehabilitation Act. Venue will lie in a United States District Court where the state-based marketplace is located. Since remedies are tied into § 504 the Rehabilitation Act, presumably, exhaustion of administrative remedies is not required. My view on these things is that it is always better to exhaust administrative remedies even if not required, but it isn’t necessary to do so. Since remedies are tied into the Rehabilitation Act, that makes you wonder how causation will be determined. The Affordable Care Act nondiscrimination statute relates back to the Rehabilitation Act and contains no causation language whatsoever.

26. Retaliation is prohibited, but can you get compensatory damages?

27. Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to policies, practices, or procedures, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meet the essential eligibility requirements for the receipt of aids, benefit, or services offered or provided by the health program or activity.

The definition essentially borrows from the title II definition of what a qualified individual with a disability is except it pacifically references health programs and activities due to the context. This does mean you want to be sure the client understands what the essential eligibility requirements are of the program. See this blog entry for example.

28. Qualified interpreter means an interpreter adhering to generally accepted interpreter ethical principles, including client confidentiality and who, via remote interpreting service or on-site is able (for an individual with a disability), to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters can include sign language interpreters, oral transliterator’s, and choose language transliterators.

29. Entities subject to the proposed regulations must assure Health and Human Services that they will comply with the nondiscrimination requirements.

30. Health and Human Services has the ability to go after covered entities for violations.

Takeaways:

1. Lawyers familiar with title II of the ADA should have little trouble dealing with the Affordable Care Act’s nondiscrimination regulations.

2. Essential eligibility requirements are critical. For some thoughts on how you might go about developing essential eligibility requirements, check out this blog entry.

3. The proposed regulations clearly specify that retaliation is prohibited and is a separate cause of action, but can you get damages for such violations? It isn’t necessarily a straightforward question with respect to disability discrimination as we discussed in this blog entry.

4. The Affordable Care Act’s nondiscrimination statute contains no causation language whatsoever. Rather, it relates back to various laws. With respect to disability discrimination, it relates back to the Rehabilitation Act. That leads to the strong argument that causation with respect to disability discrimination under the Affordable Care Act’s nondiscrimination statute is going to be, “solely by reason of.” That means it is entirely possible that depending upon the particular plaintiff suing for violation of the Affordable Care Act’s nondiscrimination provision, the causation standard may well be different from plaintiff the plaintiff even though the same nondiscrimination provision of the Affordable Care Act is at issue. For a discussion of causation vis-à-vis disability discrimination, check out this blog entry.

5. If you haven’t become familiar with the effective communication rule of title II of the ADA, now would be a good time to do so. An excellent discussion of that rule can be found in this blog entry.

6. It is interesting that the Department of Health and Human Services is not taking the stance on the standard for web accessibility, though they might in the future depending upon the comments. The bottom line is regardless of whether your company adopts § 508 or web accessibility guidelines 2.0, make sure your company gets its electronic communications accessible to persons with disabilities. Also, make sure you involve people and groups across all disabilities. For example, just because something is accessible to those using screen readers doesn’t necessarily make it accessible to those using voice dictation technology.