United States: Wake Up Call For Providers

Last Updated: May 1 2013
Article by Nathan A. Kottkamp and Melissa L. Taylormoore

Flurry of Settlements with Healthcare Facilities for Failures to Provide Auxiliary Aids to Disabled Individuals

In April 2013, the U.S. Department of Justice (DOJ) announced the settlement of five investigations with healthcare providers concerning access to services for persons who are deaf and hard of hearing.

These recent settlements stem from the DOJ’s ongoing partnership between the Civil Rights Division and U.S. Attorneys’ offices nationwide. This partnership, announced in July 2012, is designed to target enforcement efforts of healthcare facilities to ensure that people with disabilities, especially those who are deaf or hard of hearing, have equal access to medical services. The five newly announced settlements – one with a hospital, two with rehabilitation centers, and two with private specialty practices – highlight the continuing focus on healthcare providers of all sizes and their policies and practices when providing medical information to deaf and hard of hearing patients or companions.

ADA Requirements

The Americans with Disabilities Act (ADA) requires places of public accommodation, including hospitals, doctors’ offices, ambulatory surgery centers and other healthcare providers, to offer people with disabilities equal access to goods, services, and facilities. Under Title III of the ADA, healthcare providers are required to provide qualified sign language interpreters and other auxiliary aids to individuals who are deaf, hard of hearing, or who have speech disabilities, free of charge, in situations in which the medical services involve important, lengthy or complex oral communications with patients or companions. Healthcare providers must provide these types of auxiliary aids unless doing so poses an undue burden to the healthcare provider or fundamentally alter the nature of the services provided. The specific type of auxiliary aid required depends on multiple factors including the nature and length of the communication; the patient’s or companion’s communication skills and knowledge; and the individual’s stated need for an auxiliary aid. Examples of auxiliary aids include, but are not limited to, qualified interpreters on site or though video remote interpreting (VRI) services, written materials, exchanging written notes, video text displays, or the use text telephones (TTYs).

Substance of the Settlements

The most recent settlements resolve complaints made by individuals who alleged that the healthcare providers denied their requests to provide qualified American Sign Language (ASL) interpreters during the course of medical treatment. As a result, the individuals, all of whom used ASL as their primary language, were either allegedly denied access to the services of the healthcare facility or required to rely upon minor children to facilitate communication during their treatment.

To resolve these complaints the healthcare providers agreed not only to submit to DOJ oversight for 3 years, but are also required to:

  • provide “appropriate auxiliary aids and services, including qualified interpreters, where necessary to ensure effective communication” unless an undue burden or a fundamental alteration would result;
  • post and maintain signs in the waiting area stating that the facility will provide qualified interpreters free of charge for patients, family members, and companions;
  • maintain a list of qualified interpreters or interpreter agencies or arrange for the services of qualified interpreters, and submit that list to the DOJ;
  • make an affirmative and documented determination of what auxiliary aids or services are appropriate in consultation with any person with a disability using specific factors and a specific timeline (the particular factors and timing varies depending on the settlement);
  • perform a communications assessment, using a form attached to the settlement, as soon as practical and document the results in the patient’s chart;
  • log each request for an auxiliary aid or service, including the time, date, requesting individual, the specific service requested, and the type of auxiliary aid or service provided;
  • hire an outside advocacy group to provide mandatory, DOJ-approved training on an annual basis to all employees, staff, and affiliated individuals on Title III, including training in the degrees of hearing impairment and the use of auxiliary aids and services; and
  • submit written compliance reports.

The healthcare providers also have to compensate the complaining parties for alleged damages up to $15,000, and pay the DOJ civil penalties up to $1,000.

What The Settlements Mean for Other Healthcare Providers

These settlements provide the most recent insight into what auxiliary aids or services the DOJ considers necessary to comply with Title III of the ADA. Healthcare providers should review existing policies and practices governing effective communication with individuals who are deaf or hard of hearing to ensure that:

  1. The policies cover not only the time period when the individual will be receiving medical services, but that they also include protocols for communicating with patients and companions prior to arriving at the facility, as well as during intake and discharge;
  2. The policies specifically place the expense of the auxiliary aid on the healthcare provider, unless doing so would pose an undue hardship or fundamentally alter the types of services provided; and
  3. The policies provide a mechanism for responding to requests to other types of disabilities, including those involving vision or mobility impairments.

Healthcare providers should also ensure that staff and physicians alike are regularly trained on communicating with deaf or hard of hearing patients and companions so they will be ready to respond effectively and appropriately to a request for an auxiliary aid, including the use of a qualified interpreter.

Limited English Proficiency Policies Should Also Be Revisited

The requirements to provide appropriate auxiliary aids complement healthcare providers’ obligations to provide interpreter services for patients with Limited English Proficiency (LEP) as required by Title VI of the Civil Rights Act of 1964 as well as the Joint Commission’s standards for accreditation. Accordingly, providers should consider revisiting their LEP policies at the same time they review and update their policies for communicating with patients who are deaf or hard of hearing.

Healthcare providers who do not currently have such comprehensive communications policies should consider developing them to ensure equal access to their services.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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