Reposted from CIDNY from a article By Seyfarth Shaw LLP on April 12th, 2013Posted in Auxiliary Aids and Services, Effective Communication, Legislative/Regulatory Actions,
By Chris Palamountain
The U.S. Department of Justice (DOJ) announced in early April 2013 that it has reached five settlements in the past four months with health care providers (a hospital, 2 rehabilitation centers, an ear nose and throat practice, and a sports medicine center) concerning access to services for persons who are deaf. The settlements provide insight (but not a definitive conclusion) into the auxiliary aids or services that the DOJ considers necessary to comply with Title III of the Americans with Disabilities Act (ADA).
Each of the complaining parties are deaf and use American Sign Language (“ASL”) as their primary means of communication. They filed complaints after health care providers denied their requests for ASL interpreters in the course of treatment at the providers’ expense. For example, a hospital seeking admission of a man who was deaf contacted both rehabilitation centers. After those centers failed to confirm that they would provide ASL interpreters, the man’s son filed complaints with the DOJ. Similarly, the hospital patient claimed that she was unable to communicate adequately with hospital personnel during her treatment, so she had to use her minor daughter to interpret for her. The complaints against the specialists involved patients who made requests for ASL interpreters prior to scheduled appointments, but the providers stated that it was not a provider’s responsibility to retain an interpreter, relying instead on written notes and gestures to communicate with the patient.
The settlement agreements require each provider 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;
•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;
•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;
•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;
•submit written compliance reports; and,
•submit to DOJ oversight of compliance with the settlement agreement for 3-year terms.
The settlement agreements also require that each provider pay the complaining parties damages ranging from $0 – $15,000, and the DOJ civil penalties ranging from $0 – $1,000.
Although most of the settlements explicitly acknowledge that accommodations are not required when they impose an undue burden or fundamentally alter the nature of the services provided, for the most part the settlements dodge the key question of what level of expense rises to the level of an undue burden. Not surprisingly, the settlements demonstrate that whether or not a burden is undue may depend upon the size and nature of the public accommodation.
For example, the most detailed and onerous settlement duties are included in the hospital settlement, where the DOJ imposes a specific timeframe between the patient’s request for interpreter services and the hospital’s request for a third-party interpreter (15 minutes) and another timeframe for the actual provision of interpreter services (between 2-4 hours, depending on the circumstances), and includes examples of 16 specific medical and non-medical circumstances under which qualified interpreters must be provided. This settlement also affirmatively prohibits the hospital from ever requiring or coercing a family member or companion from facilitating communications (which is consistent with the ADA regulations). At the same time, the settlement expressly states that nothing in it “will require that an electronic device or equipment constituting an appropriate auxiliary aid be used when or where its use may interfere with medical or monitoring equipment or may otherwise constitute a threat” to the safety or care of the patient or others. However, by refusing the define the limits of which accommodations are reasonable or constitute a threat to safety, the DOJ leaves providers with the unenviable task of making such determinations at each stage of the service delivery process.
The charges underlying these settlements are Center for Orthopaedic and Sports Medicine, Inc., (Sports Medicine Settlement); Dr. Paul S. Biedenbach & Northern Ohio Medical Specialists Healthcare, (NOMS Settlement); Gainesville Health and Rehab Center, DJ No. 202-79-245 (Gainesville Center Settlement); Manassas Health Care LLC, DJ No. 202-79-243 (Manassas Health Care Settlement); and, Monadnock Community Hospital, DJ No. 202-47-66(Monadnock Hospital Settlement).