Risk Management

Americans with Disabilities Act May Impact Physicians’ Medical Decisions

By Randy Morris

Digest, Summer, 1996

On July 26, 1990, Congress passed the Americans with Disabilities Act of 1990 (ADA) to combat discrimination against individuals with disabilities in employment, public accommodations, state and local governmental services, public transportation, and telecommunications. Included within the definition of “public accommodation” are the professional offices of health care providers, regardless of the size of the office or the number of employees. The Act therefore applies to physicians, dentists, psychologists, hospitals, surgery centers, nursing homes, and all other providers of mental and physical care. All are prohibited from discriminating against disabled people with regard to the provision of goods, services, facilities, privileges, advantages, or accommodations.

Generally, the ADA affects physician practices in three ways:

Discriminatory employment/hiring practices are prohibited.

Architectural barriers must be removed.

Health care providers have a duty to effectively communicate with patients who have vision or hearing impairments.

Enforcement of the ADA and its regulations may be brought about in two ways: private party lawsuits seeking court orders to stop discrimination (no monetary damages are available) and individual complaints to the Attorney General, who is authorized to bring lawsuits with civil penalties that may not exceed $50,000 for a first violation or $100,000 for any subsequent violation.

Duty to Provide Services

Because the ADA is relatively new and its scope is so vast, many questions and ambiguities regarding its interpretation remain. In particular, it is as yet unclear what the exact impact of the ADA will be upon the realm of professional liability. It is entirely possible that the ADA will be used by plaintiff lawyers to establish a duty to provide services in medical negligence cases. These claims could create considerable confusion as courts decide how to apply the ADA to cases that involve physicians’ medical decisions.

Recently, an OMIC insured presented a question regarding compliance with the ADA. The insured was seeing a deaf patient who had health insurance through a PPO, and she wondered if it was her responsibility to provide and pay for an American Sign Language (ASL) interpreter for the patient. Unfortunately, the cost of providing an interpreter was significantly more than the insured could charge under the PPO contract. The ADA requires that all health care providers have a duty to effectively communicate with patients who have vision or hearing impairments and/or other disabilities. Auxiliary aids and services must be provided so these individuals can have an equal opportunity to participate or benefit unless an undue burden would result. If an interpreter is provided, the cost cannot be charged to that particular patient. The Department of Justice has indicated that the auxiliary aid requirement is a flexible one and that public accommodations may choose alternatives as long as the result is effective communication.

Unfortunately, there was no clear answer in this insured’s case. She was strongly advised to pay for the interpreter and to see the patient, but also to seek reimbursement of the interpreter expense from the PPO since it arguably is the PPO’s duty to provide this service as part of the patient’s overall health care coverage.

What Constitutes an Undue Burden?

The determination of whether providing an auxiliary aid constitutes an undue burden is made on a case-by-case basis. The ADA defines undue burden as significant difficulty or expense. Some factors which may be considered are the health care provider’s overall financial resources, the nature and cost of the aid, and whether the provision of a particular aid or service would fundamentally alter the nature of the goods, services, facilities, etc. Businesses with less than $1 million in gross receipts and fewer than 30 full-time employees may be entitled to a tax credit of 50% of expenditures (up to $5,000) for costs affiliated with ADA compliance.

Whether a particular mode of communication is effective will depend upon the circumstances and nature of the information being communicated. For example, the scheduling of a fluorescein angiogram for a deaf patient probably can be accomplished by simply using a note pad. However, an interpreter may be required to effectively communicate the results of the fluorescein angiogram because the information to be communicated is more complex. It is possible that failure to provide an interpreter in the appropriate circumstances could be interpreted as not only an ADA violation, but also the basis for a medical negligence claim. A claim might arise against an ophthalmologist for failure to use an interpreter when communicating the treatment plan for retinal angioma discovered after the fluorescein angiogram. The plaintiff’s attorney will try to show that the ophthalmologist had a duty imposed by the ADA to provide the interpreter services. A breach of this duty imposed by the ADA actually may create a presumption of negligence against the ophthalmologist.

To assist its insureds in reviewing their office practices and procedures for compliance with the ADA, OMIC will provide upon fax request a copy of the Better Business Bureau’s Access Equals Opportunity. This booklet discusses general compliance guidelines specifically for medical offices. Additionally, a resource list of organizations that can provide compliance information will be furnished. Please fax your request to the Risk Management Department at 415-771-7087.