DOJ Announces New Barrier-Free Health Care Initiative Targeting Disability Discrimination

by King & Spalding
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On July 26, 2012, the U.S. Department of Justice (DOJ) Civil Rights Division, in partnership with United States Attorneys’ offices nationwide, introduced the “Barrier-Free Health Care Initiative.”  This initiative seeks to enforce the Americans with Disabilities Act (ADA) within the healthcare industry.  The initial focus of this multi-phase plan is to ensure that people who are deaf or hard of hearing have access to medical information and that such information is presented in a manner understandable to them.  Another goal of the initiative is enforcement of ADA rules regarding physical access to medical facilities.

The ADA prohibits discrimination against the disabled in “place[s] of public accommodation,” which generally include professional offices of healthcare providers.  Among other detailed requirements, the ADA and its implementing regulations generally require a public accommodation to furnish “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.”  A comprehensive list of auxiliary aids and services required by the ADA is set forth in regulations, and includes, for deaf and hard of hearing individuals:  qualified interpreters on-site or through video remote interpreting services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices and systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones, videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing. 

A public accommodation may avoid provision of an auxiliary aid only if it can demonstrate that provision of the aid would fundamentally alter the nature of the service, or would constitute an undue burden or expense.  If the public accommodation is able to demonstrate that there is a fundamental alteration or an undue burden in the provision of a particular auxiliary aid it must, however, be prepared to provide an alternative auxiliary aid, where one exists.

The Barrier-Free Health Care Initiative arrives on the heels of several recent settlement agreements entered into by the DOJ and U.S. Attorneys’ offices with various physicians, hospitals and health systems.  The settlement agreements arose from complaints or lawsuits filed by patients alleging failure of the defendants to provide effective communication as required by the ADA.  Some of the settlements resulted in the imposition of additional requirements relating to the accommodation of deaf and hard of hearing patients.

Providers should take this opportunity to make sure they are in compliance with ADA’s requirements, particularly given that increased enforcement efforts likely will result from this new initiative.  For more information, the DOJ’s press release can be found here, and links to the settlement agreements can be found here.

Reporter, Jennifer Simmen Lewin, Atlanta, + 1 404 572 3569, jlewin@kslaw.com.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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