By Jeffrey B. Miller, Esq.
As the general population continues to age, increasing numbers of persons suffer from some form of disability. As a result, health care providers have become increasingly aware of their responsibilities to serve the disabled. In recent years even state Medical Assistance Program agencies have taken this awareness to a new level, notifying their provider-participants of increased departmental scrutiny and that compliance with the federal Americans with Disabilities Act and the federal Rehabilitation Act (together as “Federal Disability Rights Laws”) are conditions for participation.
Individual state laws have been cited as well. Disability rights groups and other interested parties, closely following these developments, have threatened to pursue disabled persons’ rights in court, and have urged relevant government agencies to pursue non-compliant providers with administrative penalties. Unfortunately, many physicians do not fully understand that these standards can require them to incur significant personal costs if they are unprepared to assist disabled persons.
In pertinent summary the Federal Disability Rights Laws prohibit discrimination against disabled persons, and place significant responsibility for the care of disabled persons squarely on the shoulders of private businesses, including physician practices. Physicians’ responsibilities under the Federal Disability Rights Laws are both social and financial. On the social level, physicians may not discriminate against individuals with disabilities, and may not deny those individuals the full and equal enjoyment of the services physicians offer to the general public. Financially, physicians are required to provide auxiliary aids and services as are necessary to ensure equal enjoyment of these services, unless an “undue burden” would result.
As an example, one common area is hearing disability. Hearing disabilities, which are sometimes accompanied by speaking difficulties, can be particularly problematic because they directly interfere with physicians’ abilities to learn about patients’ symptoms. Complicating matters, it is not uncommon for persons suffering from life-long hearing disabilities to also suffer from serious reading and writing problems, making effective communication even more difficult. To make up for these disabilities, the Federal Disability Rights Laws require physicians to supply, at their own expense if necessary, auxiliary aids. The United States Department of Justice cites examples of appropriate auxiliary aids for such as exchanges of written notes, in-office electronic hearing enhancements and/or the provision of sign language interpreters. Another possible option would be each state’s Telecommunications Relay Service. Information on this service can be obtained from the Federal Communications Commission at www.fcc.gov/cgb/dro.
While the law requires no specific auxiliary aides, the aides chosen must result in effective communication. In the case of a hearing disability, where the exchange of written notes is not effective because of reading or writing challenges, and where electronic hearing enhancements are not available or effective, physicians can be responsible for ensuring the presence of a sign language interpreter, even if such an interpreter comes at considerable cost. In some cases, the cost of providing auxiliary aids can actually be greater than the amount the physician can collect from the patient. However, under the Federal Disability Rights Laws, these are costs that all businesses that are open to the public, including health care physicians, are required to incur to support disabled persons.
While some physicians believe that the provision of expensive auxiliary aides is an undue burden, the legal requirements for an “undue burden” are difficult to satisfy. The Federal Disability Rights Laws’ implementing regulations define “undue burden” as a “significant difficulty or expense” that, among other factors, seriously and detrimentally affects the overall financial condition of the business as a whole.
A brief overview of the case law relating to “undue burden,” along with a review of the Department of Justice’s Technical Assistance Manual and conversations with representatives of the Department of Justice, confirms that a serious, detrimental effect on the financial condition of a business as a whole is necessary to qualify as an “undue burden.” As a result, physicians who provide services to only a few disabled patients are unlikely to satisfy this standard. Should physicians gain a large number of disabled patients, or should physicians’ disabled patients encompass a large percentage of the physicians’ chargeable time, the “undue burden” could be satisfied under the law.
Providing care to disabled persons is an ethical mandate and an important public service, and should be encouraged for all physicians. Moreover, physicians should be prepared to provide this care with maximum efficiency and at minimum extraneous cost. Therefore, physicians’ compliance programs should include a policy statement emphasizing physicians’ commitment to the disabled, and to compliance with all legal and ethical mandates.
As part of their compliance efforts, and to avoid last-minute problems with auxiliary aides and any unnecessary costs, physicians should collect information about available services in advance of any appointments. Information can be obtained from a large variety of organizations that provide assistance to individuals with disabilities. Useful starting points are government offices and private associations. Local charitable organizations are also frequently available to provide low cost services to the disabled, including educational and/or religious organizations. Finally, physicians should discuss these issues with other physicians. Health care providers who likely have been faced with similar situations, such as hospitals, may be particularly helpful.
Finally, physicians’ compliance programs should include procedures on the proper handling of auxiliary aide issues. Do not assume that individuals will require any particular level of auxiliary aide, or that individuals will not be able to supply any necessary aide themselves.
It is important to note that the Federal Disability Rights Laws prohibit discriminatory denials of services to disabled individuals. Just as under the Civil Rights Act of 1964, where a restaurant cannot refuse to serve an individual because of his or her race, under the Federal Disability Rights Laws an organization cannot refuse to provide services to an individual because he or she has a disability. Furthermore, the Federal Disability Rights Laws require businesses that are open to the public to assist individuals with disabilities enjoy their services through effective “auxiliary aides.” As a result, other than making the above-discussed accommodations, physicians should treat all disabled individuals in the same manner as they treat their non-disabled patients.
Jeffrey B. Miller, Esq., is Associate Corporate Counsel for Mercy Health System of Southeastern Pennsylvania. His office is located in Conshohocken, Pa.