Health Care Client Alert – DOJ: The ADA’s Effective Communication Requirements Apply to Your Patients Too
By Health Care
“Healthcare providers are required to ensure that communication with people with disabilities is as effective as communication with people without disabilities… Ensuring that healthcare providers are complying with the ADA by being accessible to individuals with communication disabilities is a critical mission of this Office.” – Jessica D. Aber, U.S. Attorney for the Eastern District of Virginia.
Elevation in Priority, Increase in Settlements
On April 13, the U.S. Attorney’s Office for the Eastern District of Virginia (the “Office”) sent a Dear Colleagues Letter (the “Letter”) to healthcare providers reminding them of their obligation under the Americans with Disabilities Act (ADA) to ensure effective communication to individuals with communication disabilities. Titles II and III of the ADA requires public sector, private businesses, and non-profit organizations to provide access to their goods and services (both in person and online) to individuals with disabilities. The pertinent regulations cover everything from architectural barriers to signage and auxiliary equipment. Though the effective communication requirements have been in force (in some form) for over thirty years, the Office has recently focused on ensuring that healthcare providers, specifically, provide services to individuals with communication disabilities.
The Letter provided links to certain ADA guidance documents and highlighted five settlement agreements that the Office had entered into with various healthcare providers that were in violation of the ADA’s effective communication requirements. This was done in an effort to flesh out the kinds of steps that healthcare providers must provide, including furnishing appropriate auxiliary aids and services, such as qualified sign language interpreters for individuals who are deaf or hard of hearing, accessible electronic technology for individuals who are blind or with low vision, and speech-to-speech transliterators for individuals with speech disabilities.
The healthcare providers in those settlements ran the gamut, including a rehabilitation and nursing center, a regional medical center, a behavioral health clinic, Rite Aid’s online pharmacy, and a home respiratory care equipment supplier. These settlement agreements (with the exception of the Rite Aid settlement, which resulted from a DOJ investigation), arose from individuals with hearing impairments filing complaints with the Office alleging a failure of the healthcare provider to provide sign language interpretive services when necessary to ensure effective communication. Of the two cases involving civil monetary penalties, the Office imposed a $50,000 penalty in one case and a $10,000 penalty in the other. In the three cases involving compensatory damages, the Office ordered the healthcare provider to pay to the complainants monetary amounts that ranged from $10,000 to $110,000. Some of the settlement agreements required the healthcare provider to implement a corrective action plan and provide the Office with compliance reports on a periodic basis.
Looking Forward and Avoiding Noncompliance
The Office recounted that the healthcare providers that failed to meet the ADA’s effective communication requirement tended to do so because of a lack of knowledge of the ADA requirements, a lack of a written ADA policy, policies and practices that do not follow the ADA, or a failure to provide appropriate ADA training to personnel who interact with the public. To further assist in compliance, the Office has organized an online informational meeting scheduled for June 6, 2023, at 1:00 PM to educate healthcare providers on the ADA and provide information on how they can comply with the Act’s effective communication requirements. Here is the registration link.
With the Office’s prioritization of ADA effective communication enforcement and its push to educate healthcare providers on those requirements, the Office may ramp up investigations and enforcement. Accordingly, healthcare providers should be proactive by attending the educational session, reviewing pertinent guidance, developing policies to ensure that they do not discriminate against individuals with communication disabilities, and providing the appropriate auxiliary aids and services.
Our team has often assisted clients on complying with the ADA’s accessibility requirements and stands ready to help.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2023.