Prominent Internet Law Attorney Recommends Dentists Make Their Websites ADA Compliant Or Face Potential Litigation

Graig Presti, 4x Inc. 500/5000 CEO of Local Search For Dentists® and Prominent San Fransisco Internet Law Attorney, Karl Kronenberger, Discuss “Why Dentists Should Make Their Websites ADA Compliant Or Face Potential Litigation.”

Here’s what you’ll learn:

  • Why Dentists Are “Low Hanging Fruit” For Plaintiffs Attorney’s and ADA Lawsuits
  • Why Adding An “Accessibility Link” To Your Practice Website Won’t Make Your Website ADA Compliant (and in fact could make things worse!)
  • Why These Lawsuits Get Settled From $10,000 – $75,000
  • Why You Can’t Wait To Make Your Website ADA Compliant (The Dept. of Justice May Get Involved)
  • What’s true. What’s false. What’s compliant. What’s not compliant. How to become compliant. How to avoid being sued.
  • And MUCH much more…

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Graig: Hey everyone, thanks for joining me on this very special, exclusive interview. I have a very, very special guest today, a person that I think will help the dental profession at large clear the air on some of the rumors and so forth regarding the American with Disabilities Act, specifically Title 3, regarding your practices website.

As you know there’s been a lot of buzz with what is compliant, what is not compliant, what do you have to do, and so on and so forth. And I’ve brought a very special guest on; his name is Karl Kronenberger and he is from a law firm that specializes in internet law, specifically out of San Francisco. We’re very, very happy to have him. Karl, thanks for joining me, I appreciate it.

Karl Kronenberger: Well thank you, Graig. I appreciate you inviting me to this interview.

Graig: Yeah we’re excited to talk today, obviously. Tell people a little bit about your firm and what you specialize in and a little bit about where you come from, especially regarding specifically internet law relating to the ADA.

Karl Kronenberger: Sure. Well, again, my name is Karl Kronenberger. My law firm is Kronenberger, Rosenfeld, and we are a boutique firm located here in San Francisco. We focus just on internet, technology, and media law. We deal with a variety of types of statutes and regulations that companies that either do business on the web or have websites have to comply with. We also deal a good amount with government investigations, FTC, for example, and some DOJ investigations. And we deal with the ADA from time to time as well.

It’s something that is becoming something that people are sort of forced to deal with, especially with companies in specific professions, like for example dental professions. So if you want I can give you just a brief overview of what the ADA is. Is that fine, Graig?

Graig: Yeah let’s start there for people who may be under a rock for the last few months and not understanding why we’re doing this. Let’s talk about what the American with Disabilities Act, Title 3, is, and how it came about, and how now it dovetails into our modern technology, and summarize that for everyone so they understand why this is happening and what everything is.

Karl Kronenberger: I’d be happy to. So the Americans with Disabilities Act was a federal statute that passed in 1990, and it prohibits discrimination against people with disabilities. There are a number of sections of this statute, and Title 3 of this statute prohibits discrimination against people with disabilities in places of public accommodations. So the question is: what are places of public accommodations?

And there’s this laundry list of twelve categories, which are, by definition, public accommodations under the statute. And they’re a variety of things: hotels, motels, restaurants, convention centers, laundromats, parks, elementary schools.

One category, specifically Category 6, deals with professional offices, professional health care providers, and other service establishments. So I think it’s pretty clear that dental professionals, dental offices, are going to be places of public accommodation under this category number six. So that’s going to prohibit dental professionals from discriminating against people with disabilities.

Now, this law can be enforced by the Department of Justice, but it can also be enforced by private lawsuits, by private plaintiffs. Now when private plaintiffs sue, they can only get injunctive relief. In other words, they can only get an order for someone to do something, to fill the ramp or fix a website. They cannot get money damages. But what they can get is attorney’s fees.

Graig: Okay.

Karl Kronenberger: So a lot of these suits that you see are driven by attorney’s fees. So the question I think you may have, Graig, is, okay we have this statute, but how does it relate to websites?

Graig: Right, and I think that’s the million dollar question, if you will. How does that dovetail into websites?

Karl Kronenberger: Yeah, so we’ll go back to July 2010, where the Department of Justice put out what’s called the Advanced Notice of Proposed Rule-Making, where they sort of put it out there for discussion and they wanted people to comment on this idea that Title 3 of the ADA reaches websites. It reaches websites of entities that provide goods and services that are within those twelve categories that I talked about. And again, Category 6, that’s going to include dental professionals.

Graig: Right.

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Karl Kronenberger: So they asked for comments. And they also asked for comments about whether or not the Department of Justice should adopt certain standards, like these Web Content Accessibility Guidelines 2.0 standards that you see out there. We’ll call them WCAG 2.0.

Graig: Sure.

Karl Kronenberger: So they started to get comments. I think they initially got over the course of four years, like four hundred and forty comments. And they decided this wasn’t enough. So they extended the time actually twice, because they wanted more comments and they just weren’t ready to make a decision. And they’ve come out multiple times to say that, “It’s coming, it’s coming, further advice is coming, but unfortunately, it hasn’t come yet.”

So we had this unfortunate situation where we don’t have any clear guidelines. Now there is one thing that happened recently in January of this year, 2017, the US Access Board—now this is an organization that sets standards regarding disabilities and providing accommodations to people with disabilities—from the federal government. They said that they were going to adopt WCAG 2.0 criteria and standards, and they wanted all businesses to comply with these standards within twelve months, by January 2018.

The problem is they don’t enforce this statute. It’s the Department of Justice that enforces this statute and this does not really constitute the force of law, but they have adopted it. So what we have is the huge grey area.

Graig: Right.

Karl Kronenberger: Where people are struggling to figure out what the actual compliance guidelines are. But despite the fact that it’s a grey area, here’s the fact that is extremely frustrating to businesses in the US. People are getting sued. There are a lot of private lawsuits out there. And, Graig, I’m sure you’ve spoken to a lot of your customers who have gone through this, dental professionals.

Graig: Yeah, we have. And I think that’s a good point. We sort of have this dynamic right now, like you said, where this is as clear as mud, but, like you mentioned, the cold, hard fact is that you can be sued for this. There are demands, letter packets being sent to dentists pretty regularly, and they’re unfortunately low-hanging fruit with this.

Karl Kronenberger: Let’s talk about that concept, Graig, of low-hanging fruit. Because I do believe that dental practices and medical practices are low-hanging fruit here because people go into those offices.

If you have a web only business where you’re not inviting the public in, there’s actually some good arguments under case law in the US that you’re not a place, a website is not a place of accommodation, because there’s no brick and mortar location where people are coming in for services.

But dental offices and medical offices are places where people are coming in and maybe it’s a profession where people aren’t paying as much attention to their websites as they would otherwise. So I do believe it’s low-hanging fruit and there are dental professionals who are getting sued.

But let’s talk about what happens when a dental professional gets sued here. There are a good amount of suits being filed. We’ve done some analysis here at my firm on the suits and a majority of the cases are being filed by these professional plaintiffs—three firms are filing most of these cases and the settlements are going mostly to attorney’s fees and costs. You do have the possibility that the Department of Justice will intervene and that brings it up to a different level of concern. But even if the Department of Justice doesn’t intervene—when people are sued, they’re almost always paying out settlement money, even if it’s nuisance money where the claims are questionable.

We’ve done an analysis about what people are paying, and we gathered as much information as we possibly could. But companies are paying between ten thousand and seventy five thousand dollars and sometimes significantly more, but there’s a lot in that range. But so the point is that if you’re a so-called low-hanging fruit, there’s a chance you’re going to get sued, and if you do get sued, it’s pretty much an automatic out-of-pocket expense to pay your counsel, because this doesn’t figure in money you have to pay to your attorney.

Graig: Right, that’s just what you’re paying out.

Karl Kronenberger: That’s right, so it can quickly turn into a six-figure situation.

Graig: And that’s just legal fees. One of the other things you mentioned, the DOJ intervening, which is always an unknown, but they could levy their first level of fine on top of that. Is that correct?

Karl Kronenberger: That’s possible. Let’s look at all the potential costs here. We have money you have to pay to your own counsel. You have attorney’s fees that you would pay to the counsel for the other side. But then you also have money that you would pay to contractors to fix your website in very quick order without the luxury of being able to do it at the best cost and on your timetable. The timetable is being dictated to you. You’re generally going to be paying more in that situation. So the question is how do we avoid this private litigation? As I mentioned the DOJ does intervene from time to time and we’ve got a handful of these interventions over the last five, seven years.

Graig: Right.

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Karl Kronenberger: I think the big takeaway from the interventions is that the Department of Justice is adopting these WCAG 2.0 guidelines or at least in the settlements, they’re forcing these defendants in this settlement to conform to WCAG guidelines. It seems like in virtually every one of these settlements where the DoJ is involved, that is the guideline.

Graig: That’s what I’ve identified as well and I think that’s where—right now with the rumor mill swirling about in the industry—there’s a lot of people who think they don’t have to comply until 2018. And that’s really not necessarily true because based on what you’ve told me in this interview, really, they’re just thinking about making guidelines in 2018, but they’ve intervened in the past and have savored in writing in these settlements the WCAG guidelines.

So there’s a chance you may not even get clarification 2018. We’re just sort of presuming we are. But the enforcements both on the plaintiff’s side and on the DOJ side have been happening for a while. Would you comment a little bit on why you would recommend—and I’m not trying to put words in your mouth—but why you would potentially recommend a dental practice to become WCAG compliant now versus waiting until 2018.

Karl Kronenberger: Well it’s pretty clear that the WCAG guidelines or something very similar to them is going to become the standard and for the purpose of intervention it is the standard. That’s what the DOJ is requiring defendants to comply with when they settle. I think the thing that is frustrating for businesses is that there’s a grey area here and the fact that it’s grey hurts businesses because it allows plaintiffs’ attorneys to file and take advantage of this grey area because it’s usually cheaper to pay a settlement than to litigate a case for a year and a half.

Graig: Right.

Karl Kronenberger: So because of this grey area, as we know, the DOJ is using WCAG guidelines. If you’re interested in risk minimization and limiting the possibility that you’re paying out money to litigate or settle these cases in the future, the best thing to do is get compliant now.

Graig: Yeah, and that’s what we’ve been recommending in conjunction with what’s been happening. And I think one of the things is that it caught a lot of people by surprise, especially in the dental industry because you’re really kind of just plugging along and all of a sudden this compliance issue comes out of nowhere, and you call your website company and they really don’t know how to advise you on what to do. Because it really did just kind of pop up.

And that’s why we’re doing this interview, because we really want to make sure that people have the help that they need and the answers to the questions that they have. And one of the things we’ve noticed is a lot of web firms are sort of saying to their customer, “We don’t have to make your site really accessible until next year.” And I think that’s sort of a thing where as a business owner you have to step back and, like you said, minimize your risk, because unfortunately, god forbid something happens where you get an attorney demand letter packet or you get someone who files on you just out of the blue, you really already lost at that point and your law firm isn’t necessarily going to go to bat for you because they can’t. And I think that’s where you want to make your site accessible just at a minimum to minimize your risk. Like any other business decision you might make.

And I think you would probably agree with that, no matter how you go about making that decision. I thin doing nothing is almost too vulnerable because we do know this is going on, and it isn’t something that you necessarily can delay.

So tell me a little bit about when you’re a dental practice—you know we talked a little bit about low hanging fruit. Let’s revisit that a little bit and what you do you think—we’ve identified firms that do this and I think the first quarter, eighty eight Title 3 suits are up seventeen percent, from what I read from another firm that does a similar thing to what you do with surveying.

I feel like this website situation is just going to intensify over the next ten to twelve months because, as you said, it’s this grey area where plaintiffs’ attorneys can get really picky and choose who they want to go after and who’s just going to settle the quickest.

Karl Kronenberger: That’s right. It’s at a certain point it becomes less a legal issue and more of a business issue. On the legal side, you have this grey area, you have this environment where it’s fairly easy for plaintiffs’ counsel to sue and get nuisance settlements, which can be fairly significant, you know, twenty, thirty, fifty thousand dollars. So it’s because you have that reality that it’s become a business issue. That is, how do you reduce your risk of paying this money? And you do this cost-benefit analysis about how much you may spend in litigation, expenses, settlements, versus how much you would on getting compliant.

Graig: Right, and I would tell you—just being an internet web firm—that when it comes to adhering to the WCAG guidelines, it certainly pales in comparison, expense-wise, to defending yourself, by thousands of dollars. And I think it’s not that hard to get to that point from where you can actually be accessible. And it certainly isn’t a huge expense and I think it becomes a cost-benefit analysis. Are you willing to roll the dice? And we’ve had conversations with dentists who—here an Austin even, which has been sort of a hot bed because Texas has been a target for some of these things—who just say, “I think I’m going to roll the dice.” And that’s a business decision.

I’m not recommending that because I feel like, cost-wise, it’s just easier to get your site accessible and move on, because I think part of it too is that it has to pass the sniff test. If your site passes accessibility standards according to WCAG, they really don’t want to mess with that as much—you’re not one hundred percent covered ever—but the reality is that they’d rather go and try to go after someone whose site might be a few years old and has no accessibility whatsoever.

Making sure that your site is coded that way in particular is important. So for everyone out there from your standpoint, we know there’s been some cases where this has been vetted out. And I want you to speak on this but there have been some instances where the courts have ruled that your site is part of Title 3. There have been some others where it hasn’t. So talk a little bit about what the case history there is and almost why that makes it worse, because it muddies it up even more.

Karl Kronenberger: I think that the main argument is going to be this insufficient nexus argument. And there is a circuit split on this problem. This argument, this defense, doesn’t apply to cut businesses that have a brick and mortar location where they invite customers in. The best defense out there is really by companies like Netflix and other companies that are web-only, because then there’s argument that there’s not a good connection between the services here and a physical place. So the website is not going to be covered under Title 3. But that just isn’t available to medical and dental professionals.

There are other defenses but I think at this point it’s hit and miss. And they’re somewhat theoretical. So to present one of these defenses, you have to make the decision, do I want to fight like hell and pay my counsel a bunch of money to make these arguments and perhaps prevail in the end, or do I pay less money and settle?

So often, people don’t even take this step of making these unique arguments that maybe there’s a due process issue or maybe the attorney’s didn’t give any pre-suit notice. There’s an argument there that the plaintiffs can’t get attorney’s fees in that situation. And then there’s also standing issues. There’s an argument that with the website cases that the plaintiffs haven’t suffered injuries in fact. But the problem is that you don’t have consistent rulings throughout the country on these defenses, and I think some of them make sense to me, especially the due process argument; people feel that they’re deprived due process of law because they’re being held to a standard which nobody understands, because it’s too grey and vague. And the vagueness creates this argument that they’re being deprived of their property without due process of law. However, often, it’s cheaper just to settle unfortunately.

Graig: And I think part of that too is that we have to understand in this side of things, our audience here, which is most of the folks that follow us and listen to our content, are a small to medium sized dental office that ranges from everything from just the one person practice to, they might have a multi-group practice, but when you do that cost-benefit analysis, you’re looking at cash outlay that you’re not going to recover potentially, or at least is just going to sit out there, which is never good.

As opposed to a large corporation like Netflix, who has piles of attorneys and piles of money to say, “Well, we’re willing to dive in and fight this and we don’t really care about the money too much. We want to get to a resolution on this. We’re not going to just pay you to make you go away.”

And I think that’s where it comes down to a business decision. It’s often less than fighting. And I think that’s kind of what we’re surmising here because it’s such a grey area. You are very familiar with how the government operates, and you’ve been doing this for such a long time. My thing of it is that the DOJ said they’re going to come out with more specific guidelines next year. My take on that is that that’s like fifty-fifty. It may happen, it may not happen. Especially under the Trump administration, will they regard that as a new regulation? And if that’s the case, that causes its own problems. What’s your opinion on whether or not that even happens?

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Karl Kronenberger: That’s a good point; with the change in administrations, there is a bit of a slow down, and policies are getting looked at again, and maybe questioned. And we have the backdrop here of DOJ actually intervening in cases. So we know there’s a risk out there, we have a history, even throughout the Obama administration, of them dragging their feet because they were uncertain about how to give guidance.

The guidance may even be delayed further for businesses because it’ll maybe be years more of dealing with this grey area where you’ve got the risk of private litigation and DoJ intervention without any clear guidelines. And again, that grey area really only benefits the plaintiffs, because often they’re seeking settlements which are less than what it would cost to fully litigate these cases.

Graig: And you’ve seen in the past, too, you may not get any clarification for years even though they say it. Because wasn’t it in 2016 that they mentioned they were going to have clarifications and then that got punted to 2018? So we sort of keep doing this every few years and I feel like the longer that goes, the trickier it becomes to navigate the landscape because—and I think you have mentioned this in the past, or I’ve read it in some of your articles, where as long as it’s as clear as mud, it remains a dangerous environment—because almost anything can happen, and we’re almost seeing it in real time.

Hopefully there is a day when we have some clarification, and I personally think that there’s going to come a day when—who knows when—having your site accessible will be just as much of a standard as if you were to have a ramp or handicap bathrooms, just because the way technology advances, I just see—I don’t know if that’s in fifteen years—who knows?—but I think that’s where we’re headed, quite frankly.

So I think we’ve covered quite a bit here, and I don’t want to dive too deep into this, and keep it sort of simple for everyone, because I think they could get some good takeaways from this and have some real clarification.

I have one more question for you, that I’ve sort of heard in the rumor mill as well, is, I’ve seen people mention in the forums and on Facebook that, if they have less than fifteen employees, Title 3 doesn’t apply to them. Could you weigh in on that a little bit?

Karl Kronenberger: Well that standard is not a Title 3 standard. That’s going to be the standard for discrimination employment, but there is no minimum employee threshold for places of public accommodation. So it’s really taking a standard from one part title of the ADA and then applying it to another title. But that threshold, that exception, so to speak, only applies to the other titles of the ADA, for example, employment discrimination. You can’t discriminate based on disability even if you have just one employee.

Graig: Right. So to summarize that, even if you’re on your own, a dentist in an operatory, seeing patients by yourself, in a brick and mortar situation, that doesn’t exempt you. Correct?

Karl Kronenberger: Correct. So the ADA Title 3 is going to apply to dental practices even if they have just one or two employees.

Graig: Okay. I’m just trying to address some of the rumors that are floating around. I see all sorts of stuff. That’s why we’re doing this is to kind of cut the fat a little and get to nitty-gritty. One more question for you, and this something I’ve read and I don’t have a low of knowledge on it, is, you being in California, you have your own sort of version of the ADA law, and this is for anyone in California who is a practicing dentist. Is it the Unruh Act, I think it is called?

Karl Kronenberger: That’s correct, and these cases brought in California are often both ADA claims and Unruh Act claims based on the same misconduct. Frankly, I think it’s sort of difficult to prove an Unruh Act case because unlike the ADA, you have to have evidence of intentional misconduct and that’s just really difficult to prove in these cases. However, that doesn’t stop people from bringing these claims and there are going to be statutory damages of like four thousand dollars per incident of noncompliance.

So I think what that does is it increases the negotiating leverage and the stakes a bit in California, even though it can be difficult in the end for them to win on those, still I think it does affect the negotiations and the stakes.

Graig: And then we’ve also seen in a bulletin from the American Dental Association one of the recommendations—and we’ve had this sort of come up before—is this concept of adding an accessibility link to your websites, and then that will sort of keep you safe and warm.

What is your opinion, or at least idea of not coding your site for WCAG, but then just putting a link up for accessibility that just says, “Hey if you’re having any issues, we’re here for you.” What’s your thought on that?

Karl Kronenberger: Well it’s not going to get someone compliant. I can see why the organization suggested it, because there have been some settlements where among other things, the DOJ has required the defendant to have an accessibility page and a link. However, they also encourage the defendant or required them to comply with WCAG standards. So I think it’s great, that companies should do it, but I don’t think it gets them compliant.

Graig: Right. I would agree. And I almost think that if you have just an accessibility link, and this is just human nature here in my mind, and you aren’t accessible to the WCAG guidelines, I feel as if just an accessibility link—a plaintiff’s attorney almost looks at that like they could argue you’re aware of it but you’re not really adhering to it.

Karl Kronenberger: I can see your argument there where it could be viewed as someone doing something in bad faith. Implying that they’re complying with the standard but not. Because having that page and saying you’re compliant but then not being compliant with the WCAG is perhaps a problem.

Graig: Right, and like I said, that comes back to cost-benefits, the whole thing. And one of the things, too, while we’re on this call, we’ll be wrapping it up now, is just to make sure everyone knows this is for informational purposes only. And Karl I’m sure you have some opinion on that in terms of legal advice. I’m not an attorney. Obviously Karl has not engaged with anyone listening to this, so you want to make sure everyone’s aware.

Karl Kronenberger: That’s right I’m very happy to give you my comments, and I have in this interview, although I don’t represent anybody listening to this, and so my comments aren’t intended to be relied upon as legal advice by anyone. But hopefully, my comments were just generally helpful to some people out there.

Graig: I’ll be honest with you, you and I have talked with this topic in the past, and I’ve already learned more on this call. I do appreciate your time. This is really great. We really cut through a lot of the rumor mill that’s out there and sort of painted a picture for folks where they could make a logical decision regarding their business now.

You have options out there. You could do nothing but you could also do something. But now you have information, and that’s the most important part of running a business is understanding, “Okay, where do I take this from here?”

And there are other firms out there that will—including mine—that will code you a site for the WCAF guidelines. And I think that’s where you start to weigh those options and cost-benefits and if you’re going to do, so on and so forth.

Karl, thank you so much for joining us today. I really enjoyed this I learned a lot and I’m sure everyone listening learned a lot. So we’ll include a link below this audio to Karl’s firm if anyone has any further questions or would like to retain him for anything. He’s a fantastic attorney and so is his firm well-versed in the areas of law, especially the internet landscape.

Karl, thanks for joining.

Karl Kronenberger: Thank you, Graig.

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DISCLAIMER: This blog post and interview are only intended to be informational only, and are not to be utilized as legal advice. If you seek legal advice, please contact an attorney. Karl Kronenberger and Kronenberger Rosenfeld do not represent anybody listening to this or reading this blog post, so his and his firms comments aren’t intended to be relied upon as legal advice by anyone.