Healing the Disabled May Distress Health Care Providers
KBA Consigliere – March 2010
By Connie S. Ditto

The Executive attitude and the history of legislation and enforcement of the Americans with Disabilities Act compound the legal implications of providing health care in East Tennessee.  Along with preparing for Recovery Audit Contractor (RAC) Audits, revamping Health Insurance Portability and Accountability Act (HIPAA) policies and procedures, preparing for electronic health records (EHR), establishing identify theft policies and procedures, and complying with the new increased requirements for patient confidentiality imposed by the American Recovery and Reinvestment Act of 2009 (ARRA), health care providers also need to examine their compliance with the Americans with Disabilities Act (ADA). 

I.          Executive Attitude
 
President Barack Obama has broadly stated that he is committed to alleviating the burdens on the disabled, and has taken steps to achieve that goal.  His official agenda states:

the Americans with Disabilities Act (ADA) is a landmark law that has done much to protect people with disabilities from discrimination.  However, President Obama will push for more consistent and effective enforcement of ADA, which can do more to prevent discrimination in employment, public services, public accommodations and telecommunications.
“Protect Civil Rights,” available at: http://www. whitehouse.gov/ issues/ disabilities/, last accessed January 26, 2010. 

On September 25, 2009, President Obama appointed the first Special Assistant to the President for Disability Policy, Mr. Kareem Dale.  News Release, The White House, Office of the Vice President, February 12, 2009 available at: available at: http://www.whitehouse.gov/ the_press_office/Vice-President-Joe-Biden-Announces-Kareem-Dale-As-Special-Assistant-to-the-President. last accessed January 26, 2010.

Shortly after the appointment of Mr. Dale to head up the nation’s disability policies, the National Council on Disability published “The Current State of Health Care for People with Disabilities” on September 30, 2009.  The Council found that disabled individuals were being denied equal health care treatment.  Specifically, the Council found:

• people with disabilities experience significant health disparities and barriers to health care, as compared with people who do not have disabilities;
• the absence of professional training on disability competency issues for health care practitioners is one of the most significant barriers preventing people with disabilities from receiving appropriate and effective health care;
• the ADA has had limited impact on how health care is delivered for people with disabilities.  Significant architectural and programmatic accessibility barriers still remain, and health care providers continue to lack awareness about steps they are required to take to ensure that patients with disabilities have access to appropriate, culturally competent care.

National Council on Disability, The Current State of Health Care for People with Disabilities, 1 (September 23, 2009) available at www.ncd.gov, last accessed January 26, 2010. 

II. Brief History of the ADA

The ADA was enacted nearly twenty years ago on July 26, 1990.  The ADA’s five titles each targeted a different area to decrease discrimination. Title I prohibited all government employers and all private employers with fifteen or more employees from discriminating against disabled employees.  Title II required public services, such as state and local government (including public school districts and public transportation) to make their services available and accommodating to persons with disabilities.  Title III required that public accommodations render their facilities accessible to the disabled.  Title IV required modifications to television and public service announcements for the hearing-impaired.  Title V among other things, defined the relationship of the ADA with other federal laws.  See generally, 42 U.S.C.A. 12101 et. seq.

Recently, on September 25, 2008, the Americans with Disabilities Act Amendments Act of 2008 was passed.  Public Law 110-325.  The ADA Amendments (“ADAAA”), which expands the definition of “disability,” became effective on January 1, 2009.  Id. As amended, the ADA defines a disabled person broadly, as an individual who has either: (a) a physical or mental impairment that substantially limits one or more major life activities of such individual; (b) a record of such an impairment; or (C) is regarded as having such an impairment.  42 U.S.C.A. § 12102(1).  A “major life activity” includes, but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”  42 U.S.C.A. § 12102(2) (A).  A major life activity further “includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”  42 U.S.C.A. § 12102(2) (B).  Additionally, an individual meets the requirement of “being regarded as having such an impairment” (and is therefore disabled) “if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”  42 U.S.C.A. §12102(3) (A).  The Equal Employment Opportunity Commission promulgated proposed rules on September 23, 2009 and the comment period ended on November 23, 2009.  The final rule is forthcoming, and once published, should be examined for compliance in a provider’s hiring, firing, and other employment-related policies. 

III. Implications for Health Care Providers

The broad definition of disability, however, has implications for health care providers beyond an examination of the provider’s employment practices.  In addition to ensuring compliance with Title III (i.e., removing architectural barriers (such as widening doorways to permit wheelchairs to pass through) and revising policies to permit the disabled to enter and utilize the facility (such as by permitting service animals in the establishment)), by participating in Medicare and Medicaid, health care providers subject themselves to the requirements (and penalties) of Section 504 of the Rehabilitation Act of 1973.  29 U.S.C.A. § 794.  The Rehabilitation Act requires that providers offer disabled individuals services that are equal or “as effective” to those offered to non disabled individuals.  45 C.F.R. §84.4(b). 

In the health care context, these requirements have peculiar implications.  For example, the confidential nature of health care treatment implicates privacy considerations under HIPAA.  Recent changes to HIPAA reaffirm the country’s policy of keeping medical information confidential.  For example, in addition to the breach notification requirements, ARRA increased the civil monetary penalties for breach as well as increased the duties of business associates.  (See ARRA at Section 13410).  Further, while health care providers must enter into business associate agreements with the personnel it contracts to comply with the ADA, (such as sign language interpreters), those agreements will need to remain compliant with the latest regulations for business associate agreements, which are expected to be promulgated in April 2010.   

Further, health care providers are required to obtain informed consent prior to providing treatment.  If a provider is treating a hearing-impaired individual and does not utilize the services of a sign language translator, and instead relies upon the individual’s spouse, the provider could be subject to penalties under tort law for lack of informed consent, HIPAA for breach of patient privacy, and Title III for lack of providing effective services to a disabled individual. 

Recent settlements and mediations published by the Department of Justice (DOJ) indicate that health care providers have been subject to investigations by the DOJ for allegations of violating Title III.  Individuals are encouraged to report complaints about Title III violations to the DOJ. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Enforcing the ADA: A Status Report from the Department of Justice January-March 2009, How to File Complaints.  The DOJ reported that from January – March 2009, it reached seven settlements with entities due to allegations of Title III violations.  U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Enforcing the ADA: A Status Report from the Department of Justice January-March 2009, Section C- Other Settlements, Title III.  One settlement involved an allegation by a deaf individual against a Pennsylvania medical practice that refused to provide a sign language interpreter at its main office, but instead offered an interpreter at one of its satellite offices.  In addition to paying the complainant $2,000, the practice agreed to adopt new policies and train its staff accordingly.  Id. 

Disclaimer: The information contained herein is strictly informational; it is not to be construed as legal advice.