On July 26, 2012, the twenty-second anniversary of the enactment of the Americans with Disabilities Act (ADA), the Department of Justice (DOJ) announced its Barrier-Free Health Care Initiative. The DOJ, responsible for enforcing Title III of the ADA related to places of public accommodation, announced this "nationwide initiative" to "focus and leverage the department's resources" to "echo the collective message that disability discrimination in health care is illegal and unacceptable." A copy of the DOJ's press release can be found at http://www.justice.gov/opa/pr/2012/July/12-crt-931.html.
The DOJ's initiative, which is in partnership with U.S. Attorneys' offices across the country, is part of a "multi-phase plan" to improve the access of disabled individuals to health care. The initial focus of this new initiative is increased access to medical information to individuals who are deaf or hard of hearing. According to the DOJ's press release, later phases of the plan will involve other "key issues" for individuals with disabilities, including ensuring physical access to medical buildings.
Title III of the ADA prohibits health care providers, among others, from discriminating against individuals on the basis of disability. DOJ regulations provide that "[a] public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities." This regulation includes obligations not only in relation to individuals seeking medical care, but also, as of March 15, 2011, to companions. And the definition of companions in the DOJ regulations is expansive, and includes "a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate." 28 C.F.R. § 36.303(c)(1)(i).
The DOJ's enforcement position is that when medical services involve lengthy or complex oral communications with patients or their companions, health care institutions generally are required to provide qualified sign language interpreters, or other effective auxiliary aides, to individuals who are deaf, hard of hearing or who have speech disabilities, free of charge.
Notably, while private lawsuits under Title III of the ADA provide for only injunctive relief and attorneys' fees, lawsuits brought by the DOJ allow for monetary damages and civil penalties not exceeding $50,000 for a first violation and not exceeding $100,000 for any subsequent violation. Moreover, recipients of federal financial assistance in the form of Medicare and Medicaid payments also can be sued under the Rehabilitation Act, which allows for the award of compensatory damages. The Department of Health and Human Services has issued regulations to effectuate the Rehabilitation Act which provide that no covered program or activity recipient may discriminate against any "qualified handicapped person" in the provision of "any aid, benefit or service."
The press release announcing the DOJ's initiative cites to a Settlement Agreement with Henry Ford Health System resolving a complaint by a deaf patient and his deaf family members who alleged that they were unable fully to communicate with hospital personnel as one example of the "successful" joint enforcement efforts of the DOJ and U.S. Attorney's Office. The Settlement Agreement provides for programmatic changes (appointment of a corporate ADA administrator and facilitators at each hospital; detailed protocols for the provision of auxiliary aids; purchase and/or rental of equipment to facilitate effective communication), employee training, policy modification, extensive compliance reporting obligations, and $70,000 in compensatory damages. A copy of the Settlement Agreement can be obtained at www.ada.gov/henry_ford_settle.htm.
Given the DOJ's newly announced initiative, health care entities should consider whether they currently have in place effective policies and practices regarding the provision of effective communication to individuals who are deaf or hard of hearing. In order to comply with the DOJ's regulations effective March 15, 2011, communication policies also should include provision of effective communication to companions as well as to patients.
In addition to federal and private enforcement efforts, in January 2010, The Joint Commission promulgated a new set of standards regarding effective communication, which requires that hospitals identify a patient's oral and written communication needs and ensure that an effective mode of communication is used, among other obligations. The Joint Commission's 2010 guidance document entitled "Advancing Effective Communication, Cultural Competence, and Patient- and Family-Centered Care, A Roadmap for Hospitals," explains the requirements, which were first included in the Hospital Accreditation Standards for 2011. The Joint Commission does currently survey for hospital compliance with the communication standards, but is not yet including them in its accreditation decisions, while it continues to evaluate their effectiveness.
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