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Americans with Disabilities Act

Federal regulations introduced in the past and updated in 2008 have assumed a greater presence for health care providers. Revisions of these regulations continue, adding compliance requirements which ensure safe and healthful environmental conditions for employees and patients.

The Americans with Disabilities Act enacted in 1990 and amended in 2008 is a civil rights law which requires that health care providers make facilities, goods, and services accessible to all people with disabilities. The Act identifies actions that discriminate against people with disabilities and provides those individuals with the right to participate and receive equal treatment in an integrated setting. Title III of the Act requires that "places of public accommodation," including service establishments such as healthcare facilities, be made free of barriers both to effective communication and to physical access. Failure to comply with the Act may subject a practice or business to fines and lawsuits.

The ADA Amendments Act of 2008 (ADAAA), imposed changes to the ADA, including changing the definition of the term "disability," which makes it easier for individuals to seek protection under the ADA. This definition may be found at the end of the tip.

Places of public accommodation are required to make reasonable modifications in policies, practices, and procedures when they are necessary to accommodate disabled individuals. This does not mean, however, that a business is obligated to make modifications altering the nature of the goods or services presently provided to its clients. Thus, to state an obvious example, a physician's office need not alter the nature of its practice in order to treat disabled individuals whose maladies are not already within the scope of the physician's or group's practice.

However, if a physician office practice or healthcare facility normally provides a service such as wound care or a treatment or procedure in their facility, they would be expected to make reasonable accommodation so that those services could be provided to a disabled patient.  This might include training staff or providing equipment to transfer a patient to an exam table or providing an appropriate alternate location where services could be provided so the disabled patient could receive services normally provided by the facility.

Effective Communication

Patients who have speech, hearing, or vision impairment must be provided with "auxiliary aids and services" to achieve effective communication. Effective communication is critical in dealing with healthcare issues. The lack of appropriate auxiliary aids and services can lead to miscommunication, misdiagnosis and delay in treatment. Tools which achieve this communication may include: assistive listening devices, written materials, sign language interpreters, oral interpreters, cued speech interpreters, video remote interpreting services (VRI), computer assisted real-time transcription (CART), telecommunication devices for the deaf (TDDs), or large print or Braille materials. The expense involved in providing these services falls upon the practice. Persons with speech, hearing or vision impairments must be given a choice about the method of communication they prefer in order to meet their needs. It may also be necessary to provide these services to family members or friends accompanying the patient.

The ADA applies to all hospital programs and services, including educational classes, the cafeteria and gift shop services. The auxiliary aids provided may depend on the services provided. While exchanging notes or pointing may be appropriate in a cafeteria or gift shop, more complicated and interactive communications, such as discussions about diagnosis and treatment, patient's symptoms or child birth education class, may require provision of a qualified sign language interpreter or other aids.

It is not appropriate to ask family members or companions to interpret for a person who is deaf or hard of hearing. If after being offered auxiliary aids and services, the deaf person requests that their family member or companion act as an interpreter, document the refusal of the offered services and the patient's request in the patient's medical record.

Health care providers should develop protocols and provide training to ensure that staff  know how to obtain interpreting services and how to use auxiliary aids. However, if the provision of auxiliary aids would fundamentally alter the nature of the services being provided or impose an "undue burden," the requirement may be waived. Undue burden is defined as a significant expense or difficulty meeting the requirements of the Act, which taxes the overall resources of a practice or business.

The Department of Justice has a business brief entitled, "Communicating with Patients Who Are Deaf or Hard of Hearing in the Hospital Setting," that can be found on the DOJ website that provides information about improving communication with these patients. The ADA National Network has “The Americans with Disabilities Act Question and Answer” booklet available for download which provides answers to questions related to the Act: https://adata.org/publication/ADA-faq-booklet.

Access

The ADA sets requirements for new construction of and alterations to buildings and facilities, including healthcare facilities. Under Title III, existing facilities must ensure access for disabled patients by removing barriers whenever this is "readily achievable." The ADA defines "readily achievable" as "easily accomplished and carried out without much difficulty or expense." If barrier removal is not readily achievable, the organization must make services available through alternative methods, if those methods are readily achievable. Because of the wide variety found in facility construction, this standard is applied on a case-by-case basis.

The U.S. Department of Health and Human Services, Office of Civil Rights has a document entitled, "Access to Medical Care for Individuals with Mobility Disabilities," which provides helpful information on caring for patients with mobility disabilities. This can be found on the ADA website.

The ADA recommends that public accommodations prioritize the removal of barriers as follows:

  1. Provide access from entrances, sidewalks, and parking facilities through the door of the facility;
  2. Provide access to those areas in which the services or goods are made available to the public;
  3. Provide access to restroom facilities for the patient or client.

In addition, removal of physical barriers may include access to telephones and drinking fountains.

** Your corporate attorney should be contacted if the practice requires further clarification on what would qualify as an "undue burden” or “readily achievable."

Both the landlord and the tenant who operate the public accommodation are responsible for compliance with Title III. Tenants should review and allocate responsibilities for ADA obligations with their landlord. Failure to comply with ADA requirements may result in tenant liability for noncompliance.

Service Animals

  • The ADA now defines service animals as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Examples include: guiding people who are blind or have low vision with navigation and other tasks, alerting people who are deaf or hard of hearing to the presence of people or sounds, pulling wheelchairs, providing non-violent protection or rescue work, alerting and protecting a person who is having a seizure, alerting individuals to the presence of allergens, or performing other special tasks. Service animals are working animals, not pets. Other species of animals, whether wild or domestic, trained or untrained, are not considered service animals. However, a public entity or private business may make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. As with service dogs, miniature horses must be housebroken and the handler must have sufficient control of the miniature horse.
  • In addition, a public entity shall consider the type, size and weight of the miniature horse and whether the facility can accommodate these features or whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

Under the Americans with Disabilities Act (ADA), businesses and organizations that serve the public must allow people with disabilities to bring their service animals into all areas of the facility where customers are normally allowed to go. This federal law applies to all businesses open to the public, including restaurants, hotels, taxis and shuttles, grocery and department stores, health care providers, theaters, health clubs, parks, and zoos.

  • Businesses may ask two questions: 1) Is this animal required because of a disability? and 2) What work or task has this animal been trained to perform? These inquiries may not be made if the need for the service animal is obvious (e.g., the dog is guiding an individual who is blind or is pulling a person’s wheelchair.).
  • Service animals are allowed in most areas of hospitals including ambulances, emergency departments, exam rooms and cafeterias; they may be prohibited from operating rooms.
  • People with disabilities who use service animals cannot be charged extra fees, isolated from other patrons, or treated less favorably than other patrons. However, if a business such as a hotel normally charges guests for damage that they cause, a customer with a disability may be charged for damage caused by his or her service animal.
  • A person with a disability cannot be asked to remove his service animal from the premises unless: (1) the animal is out of control and the animal's owner does not take effective action to control it (for example, a dog that barks repeatedly during a movie) or (2) the animal poses a direct threat to the health or safety of others. In these cases, the business should give the person with the disability the option to obtain goods and services without having the animal on the premises.
  • Businesses that sell or prepare food must allow service animals in public areas even if state or local health codes prohibit animals on the premises.
  • A business is not required to provide care or food for a service animal or provide a special location for it to relieve itself.
  • Allergies and fear of animals are generally not valid reasons for denying access or refusing service to people with service animals.
  • Violators of the ADA can be required to pay money damages and penalties.

Recommendation: Facilities should develop a grievance procedure for alleged discrimination which includes internal procedures and also provide information on how to submit a grievance to the Department of Health and Human Services, Office for Civil Rights.

For answers to additional ADA questions, call the ADA National Network at 1-800-949-4232 (V/TTY). The ADA National Network is the “go-to” resource for free information, guidance and training on the ADA and its implementation, tailored to meet the needs of business, government and individuals at local, regional and national levels.  The ADA National Network consists of ten regional centers located throughout the United States. To identify the regional center that serves your state, visit the ADA National Network Website at http://adata.org/content/email-us. The ADA Network offers numerous resources, many of which are either free or available at a low cost.

**ADA Definition of “disability” is:
(1) DisabilityThe term “disability” means, with respect to an individual—
a physical or mental impairment that substantially limits one or more major life activities of such individual;
a record of such an impairment; or being regarded as having such an impairment (as described in paragraph (3)).

(2) Major life activities
(A) In general
For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) Major bodily functions
For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

(3) Regarded as having such an impairment For purposes of paragraph (1)(C):
(A)
An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
(B)
Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

Resources:

The Americans with Disabilities Act Questions and Answers booklet

ADA.gov revised ADA rules