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October 12, 2021

Recent DOJ and OCR Settlement Highlights Provider Responsibilities to Deaf and Hearing Impaired Patients

Under Title III of the Americans with Disabilities Act (ADA), places of public accommodation—including health care providers, such as hospitals, clinics, and medical and dental offices—are prohibited from discriminating on the basis of disability in the full and equal enjoyment of their services.1  Specifically, these entities must take steps to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden.2 

These rules require places of public accommodation to provide auxiliary aids to communicate effectively with individuals who have vision, hearing, or speech disabilities. The United States Department of Justice (DOJ) has stated that for people who are deaf, have hearing loss, or are deaf-blind, this would include providing a qualified note taker; a qualified sign language interpreter, oral interpreter, cued-speech interpreter, or tactile interpreter; real-time captioning; and written or printed materials. In addition, there are now a wide variety of technologies available, including assistive listening systems and devices; open captioning, closed captioning, real-time captioning, and closed caption decoders and devices; telephone handset amplifiers, hearing-aid compatible telephones, and text telephones (TTYs), and a host of other voice, text, and video telecommunications products; screen reader software; and accessibility features in electronic documents and information technology. Finally, the rules require that entities also provide effective communication for family members, friends, or associates of a patient if the companion is an appropriate person to receive health care communications.

The key to deciding what aid or service is needed to comply with the mandate to communicate effectively is the length, nature, complexity, and context of the communication as well as the individual’s preference and normal method of communicating. This critical concept was recently highlighted in a settlement announced on October 5, 2021, by the DOJ and the Office for Civil Rights (OCR) involving a Connecticut hospital. The settlement involved a complaint brought by a deaf patient, alleging that the hospital failed to provide timely auxiliary aids and services during their inpatient stay at the hospital. According to the complaint, the patient utilized American Sign Language (ASL) as his primary means of communication, and when they were  admitted to the hospital, the patient requested an ASL interpreter. Although the hospital did provide ASL interpreters during admission and for discharge planning, at other times hospital personnel attempted to communicate with the patient through the exchange of hand-written notes. In the complaint, the patient alleged this was not effective communication because he had very limited ability to read and write English. In addition, on some occasions, hospital personnel were unable to operate the hospital’s video remote interpreting system.

Although the hospital did not admit any wrongdoing, it paid a $7,500 compensatory settlement to the complainant, and entered into a two-year resolution agreement with DOJ and OCR. The agreement imposes significant administrative responsibilities upon the hospital to monitor, assess, document, and report to the DOJ and OCR regarding its communication policies and procedures and compliance with legal requirements. Most importantly, however, the agreement contains directives to the hospital that provide valuable guidance to entities as to how the DOJ and OCR view provider responsibilities. Among its many provisions, the agreement includes the following:  

  1. 1.    All auxiliary aids and services must be provided free of charge to patients and companions who are deaf or hard of hearing.
  2. 2.    Declining to provide the requested auxiliary aid or service: If the hospital decides not to provide a particular auxiliary aid or service requested by a patient or companion who is deaf or hard of hearing based on undue financial or administrative burden or because an equally effective auxiliary aid or service is available, the hospital must advise the patient, provide a copy of its grievance procedure, document in the patient’s record the basis for the determination, including the date of the determination, the name and title of the hospital personnel who made the determination, and the alternative auxiliary aid or service, if any, that the hospital does provide, and provide a copy of this documentation to the patient or companion upon request.
  3. 3.    Document in the patient’s medical record any instance where a patient or companion indicates that the auxiliary aids and services provided have not been effective. 
  4. 4.    With respect to any subsequent visits, consult the patient’s records to review what, if any, auxiliary aids or services may be necessary without requiring additional assessments or requests for the appropriate auxiliary aids and services by the patient or companion, unless the patient or companion indicates otherwise.
  5. 5.    Provide qualified interpreters on-site or through a video remote interpreting service as necessary in the following circumstances:
    • Obtaining a patient’s medical history or description of symptoms and medical condition
    • Discussing or explaining a patient’s diagnosis, current condition, prognosis, treatment options, or recommendation for treatment 
    • Discussing or explaining procedures, tests, or treatments
    • Discussing or explaining test results
    • Discussing or explaining prescribed medications, instructions for how and when medication is to be taken, and possible side effects and interactions of medications
    • Obtaining informed consent or permission for procedures, surgery, or other treatment options
    • Communicating during treatment and testing
    • Communicating during discharge or postoperative planning and instruction
    • Providing mental health evaluations, group or individual therapy, counseling, or other therapeutic activities, including, but not limited to, grief counseling and crisis intervention
    • Providing information about blood or organ donations
    • Explaining living wills or powers of attorney (or their availability)
    • Discussing complex financial or insurance matters
    • Providing educational presentations, such as classes concerning birthing, nutrition, CPR, and weight management
    • Any other circumstance in which a qualified interpreter is necessary to ensure the rights provided by law
  6. Cannot require or coerce a patient or companion who is deaf or hard of hearing to bring another individual to interpret or facilitate communications, and shall not rely on an adult accompanying a patient or companion to interpret or facilitate communication except a) in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available or b) if the patient or companion specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide that assistance, and reliance on that person for assistance is appropriate under the circumstances. 
  7. Cannot rely on a minor accompanying a patient or companion to interpret or facilitate communications between  hospital personnel and a patient or companion except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.

In addition to the above, the hospital must abide by detailed standards set forth in the agreement regarding communication methodologies, must provide appropriate training not only to hospital personnel but also affiliated physicians and medical staff, and must designate a dedicated civil rights coordinator.

In summary, no provider wants to be the target of a patient complaint or government investigation. This recent enforcement action serves as an important reminder to health care providers to not only review their policies and procedures but also ensure that all employees are properly trained to respond to requests for interpreters. 

If you have any questions regarding the content of this alert, please contact Fran Ciardullo, special counsel, at fciardullo@barclaydamon.com, or another member of the firm’s Health & Human Services Providers Team.

___________________________________________

  1See 42 USC §§ 12181–12189 and 28 CFR Part 36.
 
2See 28 CFR § 36.303(a).
 

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