Does your practice have a website? Beware of “drive-by chases”
In this video, healthcare marketing consultant Ron Harman King, MS, discusses “driving lawsuits” – when a plaintiff or attorney just has to randomly drive businesses looking for violations of the Americans With Disabilities Act (ADA).
Here is a transcript of his remarks:
Does anyone remember the Yellow Pages? You know those phone books that used to take over almost every kitchen pantry?
Yellow pages still exist, but are mostly digital these days. In their place, of course, are websites. From donuts to doctors, consumers around the world today depend on search engines and websites for information on what to buy, what to eat, what to wear, who to hang out with and, of course, where and from whom to seek treatment.
In my experience, doctors have been some of the last professionals to move from yellow pages ads to website publishing. However, especially for providers in private practice, websites have become almost as essential as exam rooms.
In total, the number of websites worldwide is approaching 2 billion. This is a website for four humans inhabiting our planet. Their ubiquity has created a whole new industry over the past 2 decades.
But website developers and online advertisers aren’t the only ones benefiting from the digital age. Some lawyers have also found the Internet to be an extraordinarily effective way to generate business.
In this theme, it’s time to say hello to a new form of litigation traditionally called “drive-by lawsuits”. When the US Congress passed the Americans with Disabilities Act in 1990, millions cheered the dawn of a new era. These were people who found themselves stranded in buildings due to a lack of wheelchair access or other barriers that discriminate against people with various disabilities, from visual impairment to HIV in going through autism.
The most visible sign of the ADA’s effects are blue-painted handicap parking spaces in public parking lots and parking lots coast to coast. The ADA legally mandates the spaces. If a company doesn’t provide fully ADA-compliant parking, in some states that have similar laws, you don’t even have to be a customer to sue the company.
This means, for example, if a handicapped parking space is a few inches too narrow or the blue handicapped parking sign is in the wrong place, in these states an attorney can file a lawsuit and collect cash payments plus attorney’s fees. In some places, a successful plaintiff does not have to offer a business owner a grace period to resolve the issue.
Why are they called “drive-through trials?” Because a plaintiff—or a plaintiff’s attorney—just has to randomly lead businesses in the hunt for ADA violations. They don’t even need to enter the business. Sometimes a tape measure is all that’s needed to start a dispute.
As a result, one law firm reports that lawsuits against the ADA have tripled in just 4 years, with New York, Florida and California taking the lion’s share.
Now comes a new version of driving chases. You might call them “click chases”. Enterprising plaintiffs and their attorneys have clung to the convenience of Google, which allows them to identify ADA violations remotely. Here is. An office chair replaced the driver’s seat.
First, attorneys discovered that using Google Earth on their computers could help them find not only ADA parking violations, but also aerial photos of hotel pools without compliant elevators that help people with physical disabilities to get in and out of the water. Then it was only a matter of time before they realized that the Google search engine could also locate websites that were hard to read for the visually impaired or hard to hear for the hearing impaired.
Before long, website owners and publishers — including healthcare providers — began to receive letters from attorneys threatening legal action against the ADA. According to one account, more than 2,000 website-related ADA lawsuits are filed each year.
The increase in lawsuits raises the question of who should worry about becoming a defendant. This is where it gets sticky. The US Department of Justice, the primary federal agency responsible for enforcing the ADA, has not updated the regulations in more than a decade. The word “website” appears only three times in the text, mainly in reference to the ministry’s website. Accordingly, the consensus within the legal and information technology communities is that, although subsequent official publications indicate that the ADA applies to government websites, federal law and some similar state laws are largely part silent on whether non-government websites must comply.
In my research, I found that the courts were divided on state accessibility laws and I saw no indication that the Department of Justice will begin to enforce the law against private websites. And if they do, what standards will they apply?
To be sure, a set of standards comes from the World Wide Web Consortium [W3C], an international non-profit organization that establishes technical guidelines for publishing websites worldwide. To address website accessibility, the W3C has promulgated the Web Content Accessibility Guidelines. [WCAG]a fairly comprehensive set of recommendations aimed primarily at assisting website visitors with visual and hearing impairments.
The problem is that implementing such a comprehensive remedy can be costly for small businesses, as well as large companies with websites containing hundreds or thousands of pages. This leaves most website publishers with only two practical choices: wait for a lawyer’s letter to appear in the mailbox or install special website software available through a monthly subscription.
A variety of software subscriptions are available to increase website accessibility, usually for a monthly fee ranging from $50 to $100. The software allows a visitor to click on a site icon and open a window [to view a number of selections] to adjust font size and color and have a robot read text aloud, among other conveniences.
The software packages are not as robust as the WCAG implementation. But for many website publishers — especially private medical practices — they can dramatically improve website access for people with disabilities, as well as provide protection from unwanted legal attention for an affordable price.
Of course, a website developer still needs to install the software, but that’s usually an easier and relatively less expensive task. In a twist of fate, the best way I know to purchase and select the software is through Google. Type the words “ADA website compatible software” into Google or another search engine, and you should find reviews and vendors galore. Ironically, the cause of the disease thus becomes the cure.
It is unfortunate that the cyber world has hatched so many nefarious schemes, from hackers to phishers to unscrupulous legal beagles. As the novelist Mario Puzo once observed, “A lawyer with a briefcase can rob more than a thousand men with guns.” Fortunately, this only applies to a tiny percentage of lawyers.
As for me, I will never go back to the days of the Yellow Pages. The internet has been instrumental in getting just about everything I’ve sought over the past 2 decades, including advanced college degrees, a spouse, and a handful of valuable healthcare providers. For this, I am delighted to live in the digital age.
Ron Harman King, MS, is CEO of Vanguard Communications, a healthcare practice management and marketing consultancy, and the author of The Totally Wired Doctor: social media, internet and marketing technology for medical practices.