Case in Point: How Can Private Physicians Afford Not To Treat The Deaf? 

Written by: Crystal M. O'Brien, Esq.

Recently, during an MMC University-sponsored Labor and Employment Law seminar, I was asked to respond to questions from medical practice management specialists who were frustrated with the current state of the law for providing reasonable accommodations to hearing-impaired patients. Specifically, the costs associated with providing certified signers are great, and facing these financial challenges made many wonder if they could turn deaf patients away. To further complicate matters, because costs are not covered by insurers, these costs must be absorbed by private practitioners--- many who specialize in providing services to Medicare patients.

So what does the law require from business owners? Title III of the Americans with Disabilities Act (ADA) requires “places of public accommodation,” which means most businesses, for-profit and non-profit, to provide the disabled with equal access and equal opportunities to participate in and benefit from their services. Places of public accommodation include hotels, stores, banks, movie theaters, daycare centers, private schools, and professional offices, such as doctors and lawyers. Places of public accommodation must provide auxiliary aids or services (such as captioning) when necessary, to communicate effectively with people who are deaf or hard of hearing, unless it would be an undue burden (a significant difficulty or expense).

Appropriate auxiliary aids and services include providing qualified interpreters, assistive listening devices, notetakers, and written materials for individuals with hearing impairments along with qualified readers, taped texts, and brailled or large print materials for individuals with vision impairments. The key is: what will assure effective communication?

When communicating with hearing impaired patrons, it is important to recognize that lip reading alone is not always adequate. In fact, a well-respected study found that lip readers were able to distinguish only about three to four words per sentence. This is not especially surprising when it is believed that only 20% of all speech is visible from the lips. (Jeffers and Barley (1971) Speechreading (Lipreading), Springfield, IL.)

Under the best of circumstances, relying on hearing-impaired patrons to direct what auxiliary aid/service should be decisive. However, providing for appointments that permit optimal lip reading, offer pen and paper communications, or permit employees and family members to serve as signers can meet legal accommodation requirements.

Often, advocates for the disabled will identify the preferred use of “certified interpreters” over “qualified interpreters” as the duty professionals must extend to patrons. A “qualified interpreter” under the ADA, however, is “[a]n interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.” Thus the more specialized and highly skilled “certified interpreter” is not essential for ADA compliance.

Laws promoting equal access and opportunities benefit all and it is important to highlight that the law does not impose a greater responsibility on business owners than is reasonably required. Where ADA accommodations are concerned, a physician need not treat patients who he or she would not otherwise have provided care. For example, a cardiologist would not have a legal duty to treat a deaf patient with burns simply due to his or her disability. Thus, referral to another physician is not only the reasonable action but, arguably, the only professionally responsible option.

The natural question then becomes: what are the consequences of non-compliance? The ADA public accommodations provisions (as amended in 2008) continue to discourage non-compliance by permitting individuals who have a reasonable belief that discrimination is about to occur to prosecute business owners. This area of the law, like others, is susceptible to abuse. Business owners who are either unaware (or do not appreciate the duties they have under the law) can find themselves in courtrooms, facing up to $100,000 in damages, if plaintiffs can show a "pattern or practice" of discrimination through ADA violations. Without a doubt, compliance with disability laws is non-negotiable and physicians are forewarned: they cannot afford to ignore their legal duties. [Learn more.]

To submit your workplace questions or to learn more about what you can do to avoid problems like the ones described above, contact us at (800) 899-MMCI (6624), extension 5130. 

Did you know? You can schedule your own MMC University Labor & Employment Law Seminar for your organization. Just call (800) 899-MMCI (6624), ext. 5130 today!

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