Kiosk Inaccessibility With a Twist

Previously, I have blogged on the inaccessibility of kiosks. Both of those blog entries, here and here, discussed whether the kiosk was a place of public

Previously, I have blogged on the inaccessibility of kiosks. Both of those blog entries,  see understanding ADA blog and see understandingtheada.com, discussed whether the kiosk was a place of public accommodation. The case of the day, Vargas v. Quest Diagnostics Clinical Laboratories, here, is a bit different. In this case, you have a place that operates to draw blood and have their laboratories run the result when a doctor wants testing done. Quest uses a kiosk as part of the check in process. What happens when the kiosk is not accessible so that people with disabilities cannot check in with the same efficiencies as people without disabilities? By way of full disclosure, I am on the accessibility committee for the Kiosk Manufacturers Association. The facts are incredibly complicated and nuanced as well as a lot of them, so my usual categories for the blog entry do not make a lot of sense. So, after trying to do the blog entry my usual way for 90 minutes and getting nowhere, I have decided to adopt a different approach. The categories for this blog entry are: facts 30,000 feet overview; question/answers as a means of illustrating the court’s reasoning; and thoughts/takeaways. As usual, the reader is free to focus on any or all of the categories. Again, for all the relevant facts, the reader is strongly encouraged to dive into the opinion itself.

I

Facts 30,000 feet overview

click for full size – labcorp kiosk

If it is easy to summarize the facts, I will do that. Many times, I find it more efficient and more accurate to cut-and-paste the facts. Unfortunately, this particular case is one where the critical facts are many and quite long. So, summarizing the facts or cutting and pasting them is either very difficult or makes the blog entry too long. Basically, what you have here is that Quest Diagnostics is in the business of providing diagnostic information services, which includes collecting blood and urine specimens from patients that it then tests in accordance with physician orders. Quest Diagnostics and its subsidiaries receive the specimens for testing from hospitals and medical practices, but also collect specimens for testing through patient service centers (“PSCs”) located throughout the United States. It was never a part of the model to staff the place where people go to have their blood drawn with receptionists. So, electronic systems, which Quest Diagnostics calls kiosks (they are actually iPads), were put in place.

A blind individual shows up at Quest Diagnostics to have his blood drawn and simply cannot check in effectively. The whole experience was embarrassing and humiliating. The specific facts can be found in the opinion itself. There is a lot more to it than what is listed here. He also went back a second time as well and things weren’t quite right then either but he knew how the system worked. Again, take a look at the opinion, here, for a detailed recitation of the facts.

Additionally, the Department of Justice (“DOJ”) has issued an Advance Notice of Proposed Rulemaking (“ANPRM”) seeking comments on a proposal to promulgate regulations regarding accessibility of self-service kiosks. See Self-Service Transaction Machines and Self-Service Kiosks, 87 Fed. Reg. 57662 (proposed Sep. 7, 2022). In the ANPRM, the DOJ indicates that it intends to supplement the existing ADA Guidelines to require self-service kiosks to meet requirements currently applicable only to ATMs and fare machines. Id. at 57663. DOJ indicates that it will evaluate a number of potential questions, including what kiosks the new rule should cover, what technical requirements should be incorporated, and how many accessible kiosks a location should be required to provide.

II

Questions/Answers as a Way of Illustrating the Court’s Reasoning

1. Why didn’t you go into more detail as to the facts of this case as you usually do? Answer: as mentioned above, there are just too many of the relevant facts to cover without making the blog entry incredibly long. Also, some of the facts pertain to very granular details of the ADA and it might make some heads swims so to speak.
2. Why is this case different from all other kiosk cases that have been discussed previously? Answer: the difference is that the kiosks are part of the integrated system of services rather than a standalone entity.
3. If a person has the ability to use a service, does that mean there can be no disability discrimination under title III? Answer: no. Places of public accommodations have to start by considering how their facility is used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience. Further, the Ninth Circuit has held that necessary modifications can include modifications required to ensure enjoyment or minimize discomfort, rather than merely those required to ensure access.
4. How was the experience of the plaintiff qualitatively different than those without vision impairments? Answer: a person with vision could have checked in immediately using the kiosk but the plaintiff was unable to do so. In fact, the plaintiff had no way of communicating that he had arrived at all. Such uncertainty is a dignitary injury that plaintiff incurred solely because he was unable to see well enough to use the kiosk. Patients with vision could also immediately signal to a phlebotomist behind a closed door that the patient had arrived while blind and visually impaired patients could not do so. Finally, patients with vision received several advantages, including information about their place in line and their expected wait times as well with the ability to share personal information privately, that blind or visually impaired people did not receive.
5. Is dignitary harm something subject to the ADA’s title III? Answer: an experience resulting in embarrassment and humiliation is exactly the type of harm among the type of injuries that the ADA requires place of the public accommodation to minimize if they can do so without fundamentally altering their goods or services or without incurring an undue burden.
6. Must a person explicitly request an accommodation in order to have the duty to accommodate activated? Answer: no. In a footnote, the court noted that the duty to look into and provide a reasonable accommodation may be triggered when the need for accommodation is obvious even if no request has been made. The request performs a signaling function that puts public accommodations on notice that an accommodation or modification is necessary. In this case, Quest was aware or should have been aware that the original kiosks were not accessible to blind users.
7. What is the significance of phlebotomists being able to turn off a function that alerts them by sound that a blind or visually impaired user wanted to check in? Answer: extremely significant because by turning off the sound it essentially negated the ability of a blind or visually impaired user to notify a phlebotomist that someone was outside needing assistance.
8. What is the significance of the insurance and card scanner being added to the check-in process? Answer: extremely significant because if you are blind or visually impaired and cannot use the kiosk, you cannot use the insurance card scanner either. That is not a like experience.
9. Is it an affirmative defense to say that the ADA standards do not prohibit the approach taken by the defendant? Answer: yes but the ADA standard has to be related to the facts at hand, which is not the case here. Nothing in the ADA standards deals with kiosks as of yet.
10. Can an undue burden be an undue administrative burden? Answer: yes. Given the proposed rulemaking currently pending, requiring the defendant to revamp its kiosks twice in a relatively short period of time is an undue administrative burden.
11. Would plaintiff’s requested modification require the defendant to fundamentally alter its kiosk program? Answer: yes. The defendant would be required to either forgo a scanning function or to obtain entirely new kiosks to accommodate plaintiff requested modifications. Also, courts have held that where a place of public accommodation firmly offers assistance from a sales associate, independent touchscreens are not required. That said, there has to be a reliable method of quickly and easily summoning a phlebotomist to provide assistance in order to satisfy their ADA obligation.
12. What is the significance of when plaintiff returned for a second time and things didn’t go quite right? Answer: not much because the plaintiff already knew the drill so to speak in terms of how everything operates. So, even though things didn’t go exactly according to plan, the plaintiff still knew how to access the services if he had to.
13. What remedies did the court order? Answer: the court first ruled that title III of the ADA was violated because the plaintiff did not have the full and equal enjoyment of the defendant’s services and facilities due to their blindness/visual impairment. The court then ruled that the permanent injunction would include the following: A) Quest Diagnostics has to make reasonable efforts to ensure that the swipe system is available on all kiosks where the kiosk is the primary method of check-in. All such kiosks should provide any necessary audio notification at a reasonable audible volume; B) Quest Diagnostics has to ensure that the staff are trained so where a patient using the swipe system is not seen as soon as a phlebotomist is available, the staff will make affirmative offers of reassurance and assistance as early as practicable to such patients. Defendant has to ensure staff are trained so personal information that would otherwise be entered using the kiosk system should not be requested in the waiting room in front of other patients; C) defendant shall make reasonable effort to ensure that the audio message describing how to use the kiosk system plays no less than every five minutes at a reasonably audible volume in each place where the kiosk is the primary method of check-in. Defendant also has to provide reasonably prominent directions describing how to use the kiosk and its system on its website in a manner accessible to blind and visually impaired individuals using screen reading technology. Defendant, where possible, must provide braille instruction regarding how to use the system at each of its facilities; D) defendant has to revise its policies and software so that the bell audio notification to which staff cannot be turned off until they have implemented modifications such as screen readers or other technology that make the kiosks independently accessible to class members; E) plaintiff’s representative may monitor the defendant’s facilities to ensure injunctive relief has been implemented as ordered for the next two years. A dispute resolution mechanism is set up in the event of any problems; F) the court retains jurisdiction for a period of three years to ensure that the defendant has complied with the remedies ordered.

III

Thoughts/Takeaways

1. Both parties have appealed the case to the Ninth Circuit.
2. In a way, this case resembles the primary jurisdiction cases we have talked about in some of our blog entries, such as see nderstandingtheada.com. In a primary jurisdiction case, the argument goes that nobody has to do anything until the federal government gives guidance. That defense generally goes nowhere. However, that defendant did go somewhere here because rulemaking is pending. However, just because rulemaking is pending, doesn’t mean the rules will actually get done. We also don’t know what will happen in the 2024 elections. Finally, the United States Supreme Court is considering cases raising the question of whether Chevron deference will continue to be a thing. Therefore, it isn’t a slam dunk that this line of reasoning will be all that persuasive on appeal. In other words, an argument can be created that you cannot have a primary jurisdiction doctrine if Chevron deference is no longer a thing.
3. The case is an example of how a kiosk can be so integrated into the way a place of public accommodation operates that the kiosk inaccessibility can create ADA liability issues for the place using the kiosk.
4. Inability to utilize a service is not required under title III. Title III of the ADA requires places of public accommodation to ensure enjoyment or minimize discomfort for persons with disabilities attempting to use their service.
5. Magic words are not required to request an accommodation.
6. Interesting that §504 of the Rehabilitation Act was not involved as the facility undoubtedly takes federal funds. I don’t think causation, i.e. solely by reason of, would have been a barrier. For that matter, the lack of emotional distress damages being available under the Rehabilitation Act per Cummings, see understandingtheada.com, would not be a barrier either because this is an injunctive relief case. The reason §504 could have been a useful tool to go with is that §504 requires all of the operations of the entity to be meaningfully accessible to a person with a disability when it comes to an entity principally engaged in the business of providing healthcare, which arguably Quest Diagnostics is.
7. Generally speaking, I think of undue burden as being financial and fundamental alteration/undue administrative burden as turning the operations of the business upside down. Here, the court seems to create three categories. Undue financial burden, undue administrative burden, and fundamental alteration. I haven’t seen that before. It will be interesting to see if this comes up on appeal.
8. With respect to tester standing, we are waiting on the decision in the Laufer case, which we discussed here.
9. There are some notable gaps in the remedies as certain people with disabilities do not benefit from the remedies proposed by the court even if they have vision loss. That is, the whole system doesn’t work if you are both deaf and blind and such individuals do exist. The most notable deaf/blind individual is perhaps Haben Girma, a Harvard educated lawyer and motivational speaker. Even with the remedies ordered in this case, I don’t see how she uses the Quest Diagnostics system. Also, the swipe system doesn’t work terribly well if you have motor issues, such as hand tremors or Parkinson’s.
10. It has been true for decades that only 10% of the blind know braille and those figures have not changed much over time.
11. In the remedies section, there are all kinds of words that are hard to figure out what they mean and those phrases don’t appear to be terms of art, such as: 1) “reasonable effort;” 2) “reasonable audible volume;”3) “as early as practicable;” 4) “where possible;” and 5) “reasonably prominent directions.” None of these terms are ADA terms of art and are susceptible to a wide range of interpretations.
12. Expert testimony can be critical in these kinds of cases. In the interest of full disclosure, I am a member of the Kiosk Manufacturers Association Accessibility Committee and from what I have learned, it isn’t entirely clear to me that the costs to change out these kiosks would be an undue burden to Quest Diagnostics. Remember, you look to the entire resources of the place of public accommodation in deciding whether an undue burden exists. As mentioned above, the court seems a bit confused about what an undue burden is. This could be another issue that we see on appeal.
13. The moral of the story is to get people with disabilities involved early in any kind of processes so that you can ensure that the process is meaningfully accessible to people with disabilities.
14. When it comes to using an iPad (iPads have to be replaced frequently as consumer models change yearly), make sure your business has more than one data port.
15. Whether dignitary injury is a thing under title III, is the subject of much litigation and jurisdictions may vary on how they handle that.
16. Is the kiosk really a separate program of Quest Diagnostics? An argument can be made that it isn’t (the intake process is the program). Also, program accessibility is not the issue under title III of the ADA nor is it under §504 to Rehabilitation Act (for reasons unknown, §504 was not a part of this case). It will be interesting to see if this comes up on appeal.