Americans with Disabilities Act issues in dermatology

By Ben Tesdahl, JD, Megan La Suer, JD, MHA, and Robert M. Portman, JD, MPP, January 1, 2021

Every month, DermWorld covers legal issues in “Legally Speaking.” This month’s authors are health care attorneys with Powers Pyles Sutter & Verville in Washington, D.C. Portman is also general counsel for the AAD and AADA.

This article will explore the impact of the Americans With Disabilities Act of 1990 (ADA) and related laws on dermatologists and their medical practices. Many physicians may not be fully aware of the extensive requirements imposed by the ADA on physicians, including areas such as accessibility to medical offices and their websites, and requirements for providing accommodations for patients and employees with disabilities. While a thorough discussion of each of these issues is beyond the scope of this article, some of the most common issues and frequently asked questions are outlined below.

Background

The ADA is a federal civil rights law that prohibits discrimination against individuals with disabilities in everyday activities, including the receipt of medical services. Section 504 of the Rehabilitation Act of 1973 (Section 504) is a civil rights law that also prohibits discrimination against individuals with disabilities on the basis of their disability in programs or activities that receive federal financial assistance, including health programs and services. These statutes have similar requirements for physicians, including medical practices, to provide services to and communications with persons with disabilities in an equally accessible and effective manner. However, since Section 504 generally does not apply to physicians unless they receive federal financial assistance or other funding (excluding Medicare reimbursement), most dermatology practices need to be primarily concerned with ADA compliance.

The ADA requires medical practices to provide persons with disabilities with equal access to medical care services and the facilities where the services are provided. Medical offices are covered by Title III of the ADA as places of public accommodation. What follows is a general overview of ADA guidance for physicians, but it is by no means exhaustive, and in some cases the answer to a particular accessibility question will depend on the specific facts. ADA guidelines are flexible and sometimes there is no hard and fast answer to a particular situation.

Additionally, ADA compliance is not required if it would impose an “undue burden” on the physician. Determining whether ADA compliance constitutes an undue burden is very complex, and reasonable people may differ. ADA regulations regarding physical accessibility state that various factors should be considered, including the nature and cost of the action, the overall financial resources of the site, the geographic separateness and the administrative or fiscal relationship of the site or sites in question to a parent corporation, the overall financial resources of the parent corporation, and the type of operation or operations of any parent corporation or entity. Similar balancing tests apply to physician websites, treatment of individuals with disabilities, and the handling of requests for accommodations from employees with disabilities.

What do I have to do to make my medical practice accessible to individuals with disabilities?

The ADA requires that physicians provide individuals with disabilities full and equal access to health care services and facilities. Physicians must also make reasonable modifications to policies, practices, and procedures when necessary to make health care services fully available to individuals with disabilities, unless the modifications would fundamentally alter the nature of the services or create an undue burden on the medical practice.

With the foregoing general rules in mind, the DOJ has provided several guidelines for physicians in response to frequently asked questions. For example, DOJ has stated that it is not permissible to deny medical treatment to a disabled patient on the grounds that the physician does not have accessible medical equipment. Instead, the physician is required to examine the patient as the physician would any other patient and procure such medical equipment (such as an accessible exam table, an accessible stretcher or gurney, or a patient lift) within reason. DOJ has also advised that it is generally not acceptable for a person in a wheelchair to receive a medical examination while in the wheelchair, unless the examination is one that can be effectively provided in a seated position (such as an examination of the face). But otherwise, it is advisable to have an examination table that can be lowered to the height of the wheelchair or some means of lifting the patient onto the examination table.

It is also not permissible to ask a disabled patient to bring someone to the appointment to assist the patient in undressing or performing other tasks. Instead, the physician’s staff must be prepared to do so. Moreover, a physician cannot refuse to treat a disabled patient because the examination might take additional time that would not be paid for by insurance.

DOJ has also noted that when it comes to leased medical office space, it is the responsibility of both the landlord and the tenant to ensure that the waiting rooms, examinations rooms, and toilets are accessible according to ADA standards. However, it is also common for the lease itself to divide these responsibilities between the parties.

Does my practice website need to be ADA accessible and, if so, what does that mean in practical terms?

While most physicians understand that their physical facilities must be accessible to individuals with disabilities, they often do not realize that their websites are considered a gateway to their facilities and therefore must also comply with the ADA, unless doing so would pose an undue burden.

One reason that website accessibility is often overlooked is because there are no government regulations detailing exactly what constitutes an accessible website. Indeed, DOJ ceased work on such regulations a few years ago and opted for a flexible approach to website accessibility. However, DOJ has issued guidance and numerous consent decrees confirming the department’s position that websites, including those owned by medical practices, must be ADA accessible.

In addition to the risk of government fines for lack of website accessibility, there is a much bigger potential for a dermatology practice to become the subject of a private lawsuit filed by a disabled individual or disability rights organization. Indeed, there has been a spike in website accessibility lawsuits over the past few years, with more than 800 federal lawsuits and more than 100 state court lawsuits filed in 2017 against the owners of websites for failure to comply with ADA accessibility standards.

Although not officially adopted by the government as an ADA standard, one good place to look for website accessibility guidance is the Bureau of Internet Accessibility’s Web Content Accessibility Guidelines 2.0 (WCAG 2.0). WCAG 2.0 standards encourage companies to have websites that provide text alternatives to non-text content, provide captions and alternatives for multimedia, create content that can be presented in different ways including with assistive technologies, make all functionality accessible from a keyboard, and maximize capability with current and future user tools such as screen-readers.

WCAG 2.0 has several guidelines that are organized under four principles: perceivable, operable, understandable, and robustness. For each guideline, there are testable success criteria, rated on three levels: A, AA, and AAA. It appears that level “AA” is a standard that DOJ would consider reasonable.

It should be noted that neither DOJ or any court has ever stated that WCAG compliance is the only way to achieve ADA accessibility. So, each case must be determined based on the nature of the website and the services and/or information provided through the site.

Does my practice need to provide interpreters?

Physicians have a duty under the ADA to provide effective communication, using auxiliary aids and services that ensure that communication with individuals with disabilities, particularly with people who have a hearing loss, is as effective as communication with other patients. This applies to practices of any size, and again, the only exception is if the cost of providing such aid would be unduly burdensome.

A physician is expected to treat the costs of providing auxiliary aids and services as part of the annual overhead costs of operating a business and cannot charge a patient for the costs of providing such aids, either directly or through the patient’s insurance carrier. However, there may be tax credits available for providing such auxiliary aids and services.

The requirement to provide auxiliary aids and services is intended to be flexible, and physicians usually have the right to choose from a range of options, as long as the result is equally effective communication. Thus, a patient does not necessarily have a right to a specific type of auxiliary aid if there are other means available that would be just as effective. Nonetheless, DOJ expects that the physician consult with the patient and consider carefully their self-assessed communication needs before acquiring a particular auxiliary aid or service. For deaf and hard of hearing patients, an interpreter is very often the best solution to providing effective communication and should be present in all situations in which the information exchanged is sufficiently lengthy or complex to require an interpreter for effective communication. In general, a physician cannot require that the patient use family members or friends as interpreters.

Physicians should also recognize that even if a deaf patient receives effective medical treatment, the physician may still violate the ADA if he or she did not “effectively communicate” with that patient in a manner required by the ADA, such as by providing a requested interpreter for a deaf patient. Stated differently, providing proper medical care is not a defense to an ADA violation.

What are my obligations if an employee with a disability requests a reasonable accommodation?

A physician’s obligations to provide reasonable accommodations under the ADA (and also under most states’ human rights laws) also extends to his or her employees. Specifically, Title I of the ADA requires employers with 15 or more employees to provide reasonable accommodation to qualified applicants and employees with a disability, unless the employer can demonstrate that doing so creates an undue hardship to the employer or poses a direct threat to the safety of the employee or others in the workplace. The ADA provides protection for qualified individuals and employees in regard to job application procedures, hiring, firing, advancement, compensation, and job training. The U.S. Equal Opportunity Commission (EEOC) is responsible for enforcing the equal employment provisions of the ADA.

A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. This could include providing special or modified equipment, modified work schedules, or modifying training materials or providing interpreters. The requirement to provide reasonable accommodation covers all services, programs, and non-work facilities, such as break room, provided by the employer.

Under the ADA, employees with a disability must be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from job discrimination. Thus, an employer cannot refuse to hire an individual because their disability prevents them from performing duties that are not essential to the job. An employer is also prohibited from retaliating against an employee for asserting their rights under the ADA and requesting a reasonable accommodation.

Generally, an employer can ask the employee to provide a doctor’s note to show they have a qualified ADA disability. However, the employer is prohibited from requiring an employee to take a medical examination or ask questions about the employee’s disability unless such examination or questions are related to the job and are necessary for the conduct of the business.

The COVID-19 pandemic has presented new situations in which probing for this type of information may be necessary and permissible to protect the health of other employees and prevent the spread of COVID-19. In fact, the EEOC has indicated that employers may, without violating the ADA, inquire about an employee’s absence from work and ask if the employee is experiencing symptoms consistent with COVID-19. An employer may also take an employee’s temperature or require the employee to get tested for COVID-19 before allowing him or her to enter the office. According to the EEOC, employers may also implement policies that require employees to notify the employer if they have been in contact with someone who has tested positive for COVID-19, if a family member has tested positive, or if the employee has tested positive. However, the employer must maintain confidentiality of all employee health information received from employees in response to these questions or requirements.

Conclusion

Needless to say, ADA compliance for dermatologists is a sometimes uncertain area. Physicians must navigate very broad legal guidelines and must weigh multi-faceted concepts of reasonableness and undue burden that are often extremely fact-specific, and where even judges sometimes disagree. Therefore, dermatologists should proceed with caution and seek legal guidance when in doubt.

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