Is your practice accessible to those with speech & hearing impairments?
Healthcare practices are considered public accommodations – meaning that disabled individuals must be given equal opportunities to utilize your services as people without disabilities. To serve those with speech or hearing impairments, practices should have auxiliary services or devices available for use by their visitors and patients. Read on to learn about the legal requirements imposed upon your practice.
A patient checked into Highline Medical Center in Burien, Washington, for a planned surgery. The patient is deaf and communicates primarily via American Sign Language (ASL), as does his wife, who is also deaf. The patient requested in advance to have an ASL interpreter present before and after his surgery. However, the hospital only provided an interpreter before his surgery, and no interpreter was present for subsequent communications with medical staff about his stay, recovery, and discharge instructions. The patient filed a complaint with the United States Attorney’s Office in Washington, which investigates violations of the Americans with Disabilities Act (ADA).
The U.S. Attorney’s Office determined that the hospital had failed to provide necessary aids or services to the patient, including an ASL interpreter, to ensure that the patient and his wife could effectively communicate with his providers. Because of the hospital’s failing, the patient had been unable to communicate to hospital staff that he was experiencing significant post-operative pain and that he needed his glasses and hearing aids. The hospital staff was also unable to communicate to the patient that the surgeon had found more damage in the patient’s spine than expected, which had required a more complex surgery. To avoid litigation, the hospital entered into an agreement with the U.S. Attorney’s Office through which it would implement a corrective action plan to notify patients of their rights and to educate hospital staff about their obligations to those with disabilities. The hospital was also required to pay the patient $10,000 as compensation for his distress during his stay, and to pay a civil penalty of $10,000 to the United States “to vindicate the public interest.” There are countless cases like this one.
I don’t have any patients with speech or hearing impairments. Do I need to do anything?
You should be prepared – whatever that means for your practice. You don’t know when a prospective patient with speech or hearing impairments may seek out your services. Denying them access to your practice – whether intentionally or accidentally – because you cannot communicate with them constitutes a violation of the ADA. You must be prepared to communicate with your speech- or hearing-impaired patients in the same way that you communicate with your other patients. And even if they don’t end up actually becoming your patient, they must be given an equal opportunity to become your patient.
While disabled individuals should give you advance notice of their need for an auxiliary aid or service when possible, that’s not always feasible. Because you cannot charge the patient (or the patient’s insurance) for the cost of these aids or services, providers often save money by identifying the devices and services that are most appropriate for their practice before they have an immediate need for them.
The only circumstances under which you aren’t required to accommodate an individual’s speech or hearing impairment is when such an accommodation would create an “undue burden” for you. Take note, though: “undue burden” is a legal term-of-art, and the realm of activity considered to be burdensome by the government is likely much smaller than what you might consider a burden. You’re also exempted from providing accommodations that create a “fundamental alteration” of your services. The same cautionary warning applies, as you and the government likely have different ideas about what changes would fundamentally alter your practice.
Do I only need to accommodate the disabilities of my patients?
No. You need to accommodate any person who is accessing your practice as a prospective or existing customer, client, or patient. This might include: prospective patients inquiring about your services, patients, parents of minor patients, or guardians of elderly patients. Remember that you must be able to communicate with the parents and guardians of your dependent patients to obtain effective informed consent.
If your practice offers continuing education courses or public education seminars, you must also make those services accessible to attendees who have a speech impairment or are deaf or hard of hearing. The attendee should request appropriate accommodations when registering, but it’s important that you provide an opportunity to do so in the registration process.
Do I need to offer different aids for different patients?
Yes. You must provide auxiliary assistive devices or aids as are necessary to facilitate a person’s equal access to your practice, and each person’s need is different. This is a subjective standard, but the federal government suggests that it might include manual or oral qualified interpreters (i.e.: not your niece who’s taking high school ESL classes), assistive listening devices, telephone handset amplifiers, telephones compatible with hearing aids, videotext real-time captioning devices, or teletype machines (TTYs).
Overwhelmed? Have a conversation with your patient and explore which aid might best support your effective communication. The intent of the laws and regulations is to facilitate patient-provider communication. The Department of Justice encourages practices to consult with the disabled individual before selecting the assistive device that might best help them, as the individual’s self-assessment of the complexity and urgency of your communications must be taken into consideration.
When should I use a sign language interpreter?
Importantly, when you are communicating about something complex and determine that auxiliary aids aren’t effectively conveying the information, you should utilize a sign language interpreter. Simply hiring someone comfortable with sign language isn’t sufficient – be sure to retain an interpreter with specialized knowledge of medical terminology.
While patients’ family members often offer to interpret on the patient’s behalf, this is generally discouraged, as they often lack the requisite knowledge of medical terminology, and it can also pose patient privacy concerns. Interpreters should be able to interpret effectively, accurately, and impartially. Many states require sign language interpreters to be licensed, so you can start your search with your state’s licensing authority (and remember to always check for an individual’s active licensure and qualifications before hiring them).
Still have questions?
Jackson LLP has worked with both sides of Title III of the Americans with Disabilities Act. We’ve represented disability rights groups in asserting their right to have equal access to and enjoyment of public accommodations, and we’ve worked with healthcare practices and small businesses to ensure that they are ADA-compliant.
We can help you determine your responsibilities under the ADA and the Illinois Human Rights Act, along with your practice act and ethical obligations. Our attorneys might suggest that we establish a practice policy to govern your implementation of disability accommodations and assert your commitment to ADA compliance, or that we draft an addendum to your employee handbook (which should be reviewed annually for changes in workforce labor laws anyway!) and educate your workforce about their duties to disabled patients.
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