The Department of Justice's recent settlement with a Chicago-based hospital system is the latest reflecting the agency's continuing pursuit of claims against health care providers – small and large -- who fail to provide adequate service to persons who are deaf or hearing-impaired. Under the settlement, Franciscan St. James Health is required to conduct disability assessments to be documented in the Electronic Medical Records (EMRs), provide interpreters and other auxiliary aids and services to patients and companions with hearing disabilities, designate round-the-clock Americans with Disabilities Act (ADA) administrators, and establish a complaint resolution procedure. In addition, it is required to create policies and posters, train hospital personnel and affiliated physicians, make periodic reports and submit to three years of government oversight.

The St. James settlement, announced earlier this month, is the fourth since October 2014 arising out of the Barrier-Free Health Care Initiative (the Initiative). The Initiative was instituted in 2012 and initially aimed at ensuring that health care providers provide effective communication to people who are deaf or have significant hearing loss. In partnership with the Civil Rights Division and more than 40 U.S. Attorney's offices across the country, the Initiative is aimed at enforcing Title III of the ADA and Section 504 of the Rehabilitation Act. Those laws essentially require health care providers (and others) to ensure that their communications with people with hearing disabilities are as effective as their communication with people without disabilities. To meet this obligation, health care providers must provide appropriate auxiliary aids and services unless it would create an undue burden or would fundamentally alter the service being provided.  Health care providers may not charge the individual with a disability for the cost of auxiliary aids or services, including sign language interpreters. The obligation applies to all health care providers, regardless of size.  

Health care providers should ensure that they have ADA/Section 504 policies, procedures and assistive technology in place, and that staff have been trained on assessing and documenting how they deal with patients and companions with communications needs, including those who lack proficiency in English. EMR systems should be upgraded to ensure that they reflect initial and ongoing assessments of the patient's communications needs and preferences, what services were provided, and how the patient demonstrated that they understood the information being conveyed.

Many of the settlements under the Barrier-Free Health Care Initiative resulted from patients who complained after health care providers denied the patients' requests for American Sign Language interpreters at the providers' expense during treatment. In general, the settlement agreements reached to date require each provider, among other things, to:

• provide appropriate auxiliary aids and services unless it would result in an undue burden or fundamental alteration of the service;
• document the determination of what auxiliary aids or services are appropriate in consultation with the person with the disability, using established factors and a defined timeline;
• perform a communications assessment and document the results in the patient's chart;
• post conspicuous notices about the availability of qualified interpreters free of charge for patients, family members;
• log each request for auxiliary services and how it was handled;
• provide mandatory training to personnel annually; and
• submit to two to three years of DOJ oversight.

Health care providers are well advised to take many of those steps now, including training staff on how to appropriately deal with patients with hearing disabilities. Those who have implemented EMRs also should adapt their EMR systems now to ensure appropriate documentation.