The Duty to Accommodate: Increasing Penalties and Sanctions for Providers Who Fail to Furnish Civil Rights Accommodations

Recently, government agencies including the Department of Justice (DOJ) and the Department of Human Services (DHHS) (including the Office of Civil Rights (OCR)) have been actively pursuing healthcare providers who fail to provide adequate services or adequate access to people with disabilities. The agencies’ efforts have focused on patients who are deaf or hard of hearing, have Limited English Proficiency (LEP), and those patients with HIV/AIDs. Alleged provider failures have led to litigation and settlements across the country, including multiple cases in Virginia.

Requirements – “Adequacy and Undue Burden”

Providers are required to furnish adequate methods to communicate with patients effectively, such as providing access to appropriate auxiliary aids or interpreter services unless doing so would create an “undue burden” for the providers, or supplying those aids would fundamentally alter the service being offered. Providers also must ensure access to services, as many of the litigation and settlement efforts by the DOJ and the OCR have focused on refusal of services to patients with HIV/AIDs.

In order for providers to be compliant with these requirements and supply adequate services and access, health care providers and organizations need to understand what the term “adequate” entails. “Adequate” means that communication with individuals with special needs must be just as effective as for those without disabilities or language barriers. An “undue burden” characterizes a service that would involve a significant difficulty or expense. Adequacy and undue burden are determined on a case-by-case basis that considers the cost of the services and the resources of the respective facility. Access generally requires that providers not refuse services to individuals because of their condition.

Applicability

Most healthcare providers have a legal obligation to grant access to adequate services and access to people with disabilities. This is true for any provider receiving federal financial assistance, including Medicare, Medicaid, NIH grants, and CDC funding. This requirement similarly applies to private hospitals or medical facilities, as the Americans with Disabilities Act and the Rehabilitation Act consider such facilities a place of public accommodation.

Legal Basis

A bundle of federal civil rights laws, including Title IV of the Civil Rights Act, Section 504 of the Rehabilitation Act, the American’s with Disabilities Act, and the Age Discrimination Act, provide the basis for federal requirements to offer adequate access and services. DHHS and OCR initiated the Barrier Free Health Care Initiative of 2012 to enforce legal provisions of the American’s with Disabilities Act and to increase access to medical facilities and services. Title VI similarly concludes that no one may be excluded from participation in or be denied benefits derived from any program receiving federal financial assistance. The Rehabilitation and Age Discrimination Acts have comparable language prohibiting inequality and exclusion from federally financed activities based on disability.

Notably, DHHS has issued a proposed rule, “Nondiscrimination in Health Programs and Activities” to clarify standards DHHS would apply in implementing Section 1557 of the Affordable Care Act, which prohibits discrimination in healthcare services against individuals based on race, color, national origin, sex, age, or disability. This proposal includes the requirements described above and extends protection against discrimination for gender identity and discrimination in employee benefit plans. The proposed rule also contains more stringent requirements for LEP patients and requires that providers post notices regarding accommodations and establish a grievance procedure for patients regarding the required services.

Best Practices and Considerations

Many of the civil rights cases against healthcare providers involve patients with hearing problems or language barriers. A proactive way for providers to avoid investigations and lawsuits is to have a plan in place to address communication quickly and effectively upon the initial patient visit. Adopting provider policies consistent with communication and access goals is an important first step, as is identifying the Section 504 /ADA coordinator for each organization or facility. Providers should post conspicuous notices and provide literature about the availability of communication services at each service location. Another best practice is to conduct an initial “communications needs” assessment for all incoming patients and detail the results in the patient’s medical record. These measures can limit liability for alleged failures to provide communications access and services.

Providers may also be required to provide communication services to the patient’s companion if that individual is legally authorized to make healthcare decisions or may communicate a patient’s needs or medical history. More specifically, for LEP clients, translation by friends or family on behalf of a patient likely will not qualify as an “adequate” service, as these individuals are usually not trained in medical translation.

The following are examples of technical accommodations that providers should consider making available to meet the obligation to make reasonable accommodations:

• Hearing impaired telephone (TTY/TDD) units
• Closed captioning
• UbiDUO two party texting
• Video remote interpretation (VRIs)
• Contracted interpreters or a reputable language line
• In-person interpreting services

Staff should be trained on the use of these devices and methods as well as how to communicate and properly document the patient’s responses and ability to understand. Additionally, each provider should develop a grievance procedure and make patients aware of it in the event that staff fails to provide proper accommodations or access to care.

Sanctions for Noncompliance

Providers found by DOJ or DHHS not to be in compliance with the civil rights requirements may face a number of sanctions, including but not limited to:

• Fines
• Damages
• Attorney’s fees
• Loss of federal funds
• Loss of Medicare reimbursement
• Government monitoring
• Loss of accreditation

Other implications of a failing to provide appropriate accommodations for patients with communication barriers include longer patient stays, potential personal lawsuits due to adverse outcomes, higher readmission rates, and lower patient satisfaction. Ensuring that each health care provider offers adequate, effective communication with all patients and access to services for all patients is essential for both business survival and avoiding legal liability. Should you or your organization have any questions regarding compliance under civil rights laws for access to medical facilities and services, please contact Peter Mellette (Peter@mellettepc.com), Harrison Gibbs (Harrison@mellettepc.com) or Elizabeth Dahl (Elizabeth@mellettepc.com), or call Mellette PC at (757) 259-9200.

This Client Advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up to date and fact specific advice.