I
Introductory Comments

Last week the Department of Justice as intervenor and the National Federation of the Blind on behalf of itself and two plaintiffs entered into a consent decree with H&R Block and the entity that runs its website. While the defendant did not admit any liability, they did agree to pay $22,500 to the two individual plaintiffs. They also agreed to pay a civil penalty of $55,000 to the Department of Justice. The consent decree is for five years.

The terms of the settlement should give people a real good idea of where the Department of Justice is headed with respect to its regulations on the accessibility of the Internet. Before getting to the terms of the settlement, a couple of things about the case should be noted. First, the case was filed in the United States District Court for the District of Massachusetts. That is no accident I’m sure because, as we have discussed previously, that is the district that decided the National Association of the Deaf v. Netflix , where that court held that whether a place was subject to title III of the ADA entirely depended upon whether one of the categories for a place of public accommodation were involved and not whether it had a physical space. It is also possible that the Department of Justice might have filed in California using the gateway theory. That is, the Internet site was a gateway to brick-and-mortar stores. After all, H&R Block has numerous stores all over the place. Finally, the Department of Justice might also have filed in the Seventh Circuit, but that may have been more problematic because the statement of Judge Posner’s that the Internet applies to the ADA is dicta. In short, while the Department of Justice had options as to where to file the suit, it can’t be a surprise that it was filed in the District of Massachusetts.

As is my practice, I have divided the blog entry into separate categories. In this case, there are the introductory comments, the terms of the settlement, and takeaways and thoughts. The reader is free to focus in on any and all of the various sections of this blog entry.

II
Terms of the Consent Decree

1. Settlement applies to the Internet site, its mobile applications, and its online tax preparation product;

2. By January 1, 2015, H&R Block has to ensure that its Internet site and the online tax preparation product conform to, at a minimum, the web content accessibility guidelines 2.0 level A and AA success criteria (you may see it also referred to as, “success criteria);”

3. By January 1, 2016, H&R Block has to ensure that it mobile applications conform to the success criteria;

4. Many websites use plug-ins, and if H&R Block uses or integrates third-party plug-ins or content, they have to have a method of obtaining and using such content conforming to the success criteria. The exception being that they have three years to provide a method of obtaining and using map content conforming to the success criteria (currently, the plug-in that H&R Block uses to display the map location with physical offices does not conform to the success criteria).

5. H&R Block by June 15, 2014 has to designate an employee reporting directly to the H&R Block’s enterprise chief information officer as the web accessibility coordinator for its Internet site, its mobile applications, and its online tax preparation product and that name and contact information has to be provided to the court.

6. What the web accessibility coordinator does is laid out in the agreement. Specifically: that person has to be knowledgeable about the terms of the consent decree, including but not limited to the success criteria; that person has to be responsible for overseeing, managing, and coordinating H&R Block’s implementation of the decree; that person is also responsible for reporting and documenting at least quarterly to H&R Block’s enterprise chief information officer that all new releases have been made accessible preproduction, any postproduction accessibility bugs have been fixed, and that the requirements set forth in the consent decree have been met and if not, what requirements have not been satisfied and why.

7. By June 1, 2014, H&R Block has to adopt and implement a web accessibility policy (the specifics are spelled out in an exhibit to the consent decree). Further, by June 1, 2014 H&R Block has to: distribute the web accessibility policy to all web content personnel and client service operation call-center agents; provide a copy of the policy to each new web content personnel, contractor responsible for web content, and client service operation personnel for the Internet site; redistribute the corporate web accessibility policy annually to all web content personnel, contractors responsible for web content, and client service operation personnel; make publicly available and directly linked from the website homepage a statement of H&R Block’s policy to ensure that persons with disabilities have full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of H&R Block through its website, its mobile application, and its online tax preparation product; and accompany the public policy statement with an accessible means of submitting accessibility questions and problems.

8. By July 15, 2014, H&R Block has to appoint a cross functional committee with the responsibility of monitoring and maintaining conformance of their Internet site, the mobile applications, and their online tax preparation product with the success criteria.

9. By July 15, 2014, H&R Block has to provide a notice that is prominently and directly linked from their Internet site’s homepage soliciting feedback from visitors to the Internet site of how the accessibility of their website, mobile application, and online tax preparation product can be improved. Several methods to provide feedback to ensure accessibility to a variety of people with disabilities have to be included.

10. By December 1 of 2014, H&R Block has to train its client service operation personnel to automatically move up calls from users with disabilities having difficulties with their website or online tax preparation product. H&R Block has to have trained sufficient personnel to handle such calls (a minimum of 5% of such staff at any given time). H&R Block has to establish procedures for promptly directing request for assistance to such personnel including notifying the public that customer assistance is available to users with disabilities and describing the process to obtain that assistance. H&R Block gets an extra year, December 1 of 2015, to do the same with respect to their mobile applications.

11. By August 15 of 2014, and at least annually thereafter, H&R Block has to provide mandatory web accessibility training to all employees writing programs or code or who publish final content for the Internet site, the mobile applications or their online tax preparation product in how to conform all web content and services with the success criteria and the terms of the consent decree. H&R Block also will ensure that contractors are familiar with the success criteria.

12. Performance reviews of the web accessibility coordinator and all employees subject to the consent decree has to include consideration of the degree and effectiveness with which the individual took accessibility considerations into account in the performance of their respective duties.

13. H&R Block has to perform automated web accessibility testing and a tool acceptable to the private plaintiffs and the Department of Justice has to be selected by October 1 of 2014. Then: beginning December 1, 2014, and at least once every three months thereafter H&R Block has to conduct automated accessibility test of their Internet site to identify any instances where the Internet site is no longer in conformance with the success criteria; automated accessibility test of the online tax preparation product needs to be conducted no later than June 1, 2015, and each year thereafter of the consent decree and at least once per month beginning June 1 of the year until the online tax preparation product is released in order to identify any nonconformance with the success criteria; by October 1 of 2015, H&R Block has to have an automated accessibility testing tool acceptable to all the parties to evaluate the conformance of mobile applications with the success criteria. Once an automated accessibility testing tool for mobile applications has been selected, then at least once every three months thereafter H&R Block has to conduct automated accessibility test of its mobile application to identify any instances where the mobile applications are no longer in conformance with the success criteria.

14. H&R Block by October 1, 2014, and at least once annually for the terms of the consent decree and whenever a substantial proposed change to the Internet site, its mobile application, or its online tax preparation product is made available to any group of H&R Block uses or customers have to have those changes tested by individuals with different disabilities including those who are blind, deaf, AND/OR have physical disabilities affecting manual dexterity (such as those limiting the ability to use a mouse), in order to identify any accessibility barriers not otherwise apparent through automated testing.

My highlighting the AND/OR is intentional because as a user of voice dictation technology, I have a strong suspicion that just because something is accessible to a person who is blind and uses a screen reader, doesn’t mean that it is necessarily accessible to a person who uses voice dictation technology, though in most cases if it is accessible for purposes of the screen reader, it seems to also work with respect to voice dictation technology. Also, there is another trap for the unwary here as well. That is, it is important to remember that some people have multiple disabilities. For example, a person may need voice dictation technology and also be deaf or hearing impaired. Thus, accessibility has to be tested with respect to whether a person with multiple disabilities can access the site effectively.

15. By December 1 of 2014, H&R Block has to modify existing bug fix policies, practices, and procedures in order to include the elimination of bugs causing things (Internet site, mobile application, and online tax preparation product), to be out of compliance with the success criteria.

16. By July 15 of 2014, H&R Block has to retain an independent consultant approved by all parties who has expertise concerning accessible web development and the terms of the consent decree. That person by September 15, 2014, and annually by August 15 thereafter, has to provide a written evaluation describing whether the Internet site, the mobile application, and the online tax preparation product are in conformance with the success criteria and make any needed recommendations to improve the accessibility of same. H&R Block then has to incorporate all the recommendations contained in that evaluation within 90 days of receiving it and with respect to any recommendation for the online tax preparation product, the changes have to be made 30 days prior to release.

17. The settlement agreement sets forth certain reporting requirements of the Department of Justice.

18. The court retains continuing jurisdiction. While I don’t see any mention of specific attorney fees, this continuing jurisdiction is important because it enables the private plaintiffs and the National Federation of the Blind to get their attorneys fees because of the court’s continuing jurisdiction means that the plaintiffs have prevailed.

III
Takeaways and thoughts:

1. It is interesting that the online tax preparation product is part of the settlement. After all, a product per se does not have to be accessible to persons with disabilities. However, context is everything. In this situation, one could argue that the product is a gateway to brick-and-mortar store. Also, one could argue that the product is in essence offering a professional service and therefore vis a vis National Association of the Deaf v. Netflix is a place of public accommodation. Therefore, the Department of Justice is serving notice that products offered online may be subject to the ADA in their opinion.

2. It is more than just the Internet site that has to be worried about, mobile applications also have to be considered. That makes sense since everything I have read says that people are moving away from PCs towards using mobile applications and tablets to access the Internet.

3. The Department of Justice regulations with respect to website accessibility may be coming down soon since the time frame given to H&R Block in many cases under the settlement agreement is quite tight. Thus, companies may want to start working on this immediately.

4. Standards for website accessibility and mobile application accessibility is going to be the web content accessibility guidelines 2.0 level A and AA success criteria.

5. Consider establishing a web accessibility coordinator position with the responsibility for ensuring that the Internet site, mobile application, and even products are accessible to persons with disabilities.

6. Establish a web accessibility policy and make sure it gets distributed to all necessary personnel and contractors.

7. Set up a web accessibility committee to assist the web accessibility coordinator.

8. Ensure that persons with all kinds of different disabilities have the ability to give feedback regarding the accessibility of the website.

9. Ensure that those dealing directly with customers with disabilities have a thorough understanding of how their website, mobile application, and even products works with respect to those using various technology (screen readers, voice dictation, etc.) used by persons with disabilities to access the company’s mobile application, Internet site, or even product.

10. Make it a part of every employee’s evaluation as to how they deal with disability access issues (either customer or product)..

11. Make sure that the coders and programmers are familiar with the success criteria and that they receive at least annual training with respect to that.

12. Periodically test the Internet site, mobile applications, and even products as to whether they are continuing to measure up to the success criteria and document same.

13. Set up a user accessibility testing group and include those who are blind, deaf, AND have physical disabilities affecting manual dexterity in order to identify any accessible barriers not otherwise apparent through automated testing. As a preventive measure, it would seem the settlement on its face would allow those with physical disabilities to be excluded, but to be safe and prevent problems later, I would include them.

14. Modifying existing bug fix policies, practices, and procedures so as to ensure the prompt elimination of violence that are out of conformance with the success criteria.

15. Depending upon the confidence the company has in its personnel with respect to the kind of issues, the company may want to consider hiring an independent web accessibility consultant.

5 Responses to What can we expect from the DOJ regulations regarding the Internet? Now, we have an idea

Excellent post. From a business standpoint what I find most bothersome about the consent decree is the intrusive provisions concerning how the needed changes are to be implemented. This is an aspect of the way the DOJ treats those who may have a civil violation of the statute as criminals — you are not just required to comply with the law (or in this case, a hypothetical future law that is inconsistent with the plain language of the ADA), you are also put on probation with continuous government oversight and a bureaucrat’s dream of additional internal policies and procedures.

While I tend to come at things from a very different perspective from Richard, Richard made some really good points here. The first thing that surprised me about this settlement is that the settlement includes a product. Case law to date has been that a product does not have to be accessible to persons with disabilities. I suppose you could argue that the product was in reality a professional service and therefore under National Association of the Deaf v. Netflix the product, the online tax preparation tool, was in essence a professional service. Seems to me that it is at least a question that could’ve been litigated. It is interesting that the defendant, represented by one of the larger law firms around-Morrison Foerster- elected to settle and not litigate it. Also, Richard is quite right to note that many of the settlement terms are quite intrusive. Even so, taking those steps is excellent preventive law and regardless of any settlement with the Department of Justice, particularly if the company is large enough, those steps up reply are probably well worth taking in order to prevent future problems.

EBay has just announced a partnership agreement with the national Federation of the blind to make sure that its mobile applications and its website are accessible.
http://blog.ebay.com/ebay-national-federation-blind-team-optimize-accessibility-site-apps/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+insights&utm_campaign=07c7151852-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_decb46f1f5-07c7151852-70397845

what is interesting about this is that it comes in the context of a decision still pending before the US Court of Appeals for the Ninth Circuit involving a deaf person that was unable to become a vendor because as a result of her deafness she had no way to verify she was who she was. I don’t know how this impacts that case if at all.

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