Federal Settlement Highlights Provider Responsibilities to Accommodate Deaf and Hearing Impaired Patients
On March 23, 2023, the US Department of Health and Human Services Office for Civil Rights (OCR) and the US Attorney’s Office for the Eastern District of Michigan (DOJ) entered into a settlement agreement with Dearborn Obstetrics and Gynecology (Dearborn), a professional corporation owned by a physician, to resolve an alleged civil rights violation. A complaint was filed by an individual who is deaf and utilizes American Sign Language (ASL) as her primary means of communication. She alleged that the practice on more than one occasion failed to provide her with qualified sign language interpreter services necessary for effective communication during her medical appointments and then informed her that they would no longer treat her due to the cost of providing a sign language interpreter.
Under Title III of the Americans with Disabilities Act (ADA), places of public accommodation—including medical offices—are prohibited from discriminating on the basis of disability in the full and equal enjoyment of their services.[i] Medical practices are required to provide auxiliary aids to communicate effectively with individuals who have vision, hearing, or speech disabilities unless it would fundamentally alter their services or result in an undue burden.[ii]
For people who are deaf, have hearing loss, or are deaf-blind, this includes providing a qualified note taker; a qualified sign language interpreter, oral interpreter, cued-speech interpreter, or tactile interpreter; real-time captioning; and written or printed materials. In addition, there are now a wide variety of technologies available, including assistive listening systems and devices; open captioning, closed captioning, real-time captioning, and closed-caption decoders and devices; telephone handset amplifiers, hearing-aid compatible telephones, text telephones (TTYs), and a host of other voice, text, and video telecommunications products; screen-reader software; and accessibility features in electronic documents and information technology. Finally, the rules require that entities also provide effective communication for family members and friends of a patient if the companion is an appropriate person to receive health care communications.
Although Dearborn did not admit any wrongdoing, it entered into a voluntary resolution agreement, which imposed significant requirements. Dearborn was required to develop and implement effective policies and practices to ensure nondiscrimination and nonretaliation. Further, the agreement required 18 months of monitoring by both OCR and DOJ and further requires Dearborn to pay damages to the complainant, although the amount was not stated.[iii]
The settlement agreement required that Dearborn take immediate steps to provide effective communication, including, among other requirements:
- Providing free-of-charge auxiliary aids and interpreters (including detailed requirements for video remote interpreting)
- Consulting with patients to determine the most appropriate auxiliary aids or services and the timing, duration, and frequency with which they will be provided, taking into account the nature, length, complexity, and importance of the communication at issue and the individual’s communication skills and knowledge
- Posting signs advising on the availability of auxiliary aids and interpretation services in the reception area, waiting room, examination rooms, and on its social media accounts
Providers cannot require or coerce a patient or companion who is deaf or hard of hearing to bring another individual to interpret or facilitate communications and shall not rely on an adult accompanying a patient or companion to interpret or facilitate communication except in an emergency involving an imminent threat or if the patient or companion specifically requests it. In addition, providers cannot rely on a minor accompanying a patient or companion to interpret or facilitate communications except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.
No provider wants to be the target of a patient complaint or government investigation and be subjected to close surveillance by the government. This recent enforcement action serves as an important reminder to health care providers to not only review their policies and procedures but also ensure that all employees are properly trained to respond to requests for interpreters.
AUTHOR’S BIOGRAPHY
Fran Ciardullo (fciardullo@barclaydamon.com)
As special counsel at Barclay Damon LLP, Fran concentrates her legal practice on health care and risk-management issues. She counsels physicians, physician groups, dentists, hospitals and health systems, nursing homes, and other health care providers on matters involving professional misconduct, professional liability, medical-staff issues, scope of practice, mandated reporting, peer review, and regulatory compliance. Fran also handles consent for treatment and surrogate decision-making, patient care, EMTALA, and health-information privacy issues.
A former Town of Schroeppel town justice, Fran is also trained in alternative dispute resolution and has mediated and arbitrated a variety of civil actions and disputes. She routinely publishes industry articles and presents educational programs on legal matters to hospitals, medical and dental practices, and trade associations.
[i] See 42 USC §§ 12181–12189 and 28 CFR Part 36.
[ii] See 28 CFR § 36.303(a). Any costs associated with providing the auxiliary device are measured in terms of the resources of the practice as a whole.
[iii] See https://www.hhs.gov/civil-rights/for-providers/compliance-enforcement/agreements/vra-dearborn-obstetrics-and-gynecology-pc/index.html.