Compliance with the ADA

Is your dermatology practice ADA compliant?

by Robert M. Portman, JD, MPP, and D. Benson Tesdahl, JD, LLM

Dermatology practices must comply with the Americans with Disabilities Act (“ADA”) in dealing with both their employees and their patients. The ADA rules for employers are detailed on the Equal Employment Opportunity Commission’s website. This article focuses on the obligation of dermatology practices, as places of public accommodation (e.g., hotels, convention centers, restaurants, retail stores, and the like), to be accessible to patients and their companions with ADA-qualified disabilities, both in the treatment setting and through practice websites.

Why does the ADA apply to physician offices?

Title III of the ADA prohibits discrimination against persons with disabilities in terms of access to the provision of goods, services, facilities, privileges, advantages, or accommodations by any person who owns, leases, leases to, or operates a “place of public accommodation.” A physician’s office is considered to be a place of public accommodation under the ADA rules.

What are the ADA access requirements?

As a threshold matter, medical practices are required to provide persons with qualified disabilities with full and equal physical access to their office space, exam rooms, and medical equipment. Existing facilities are required to remove architectural barriers where such removal is readily achievable. The test for whether barrier removal is readily achievable is whether it is easily accomplishable and able to be carried out without much difficulty or expense. If barrier removal is not readily achievable, the place of public accommodation must make its services available through alternative methods, if those methods are readily achievable. The government has spelled out the requirements for physical accessibility of medical practices.

Note that both owners and tenants of places of public accommodation are obligated to meet ADA access requirements, but some of those responsibilities can be allocated through leases or other agreements between such parties.

What are the ADA effective communication/auxiliary aid requirements?

Medical practices must also provide patients with appropriate auxiliary aids and services where necessary to ensure effective communication. By “effective communication,” the law means the level of assistance necessary to ensure that the public accommodation can communicate as effectively with a person who has a disability as with a person who does not.

The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved. Among the auxiliary aids listed in the ADA regulations are “Video Interpreting Services,” a means of conducting remote, two-way video interpretation using video phones and cameras, and qualified interpreters. Other examples of possible auxiliary aids and services for persons with hearing impairments include assistive listening devices, computer-aided transcription services, written materials, and exchange of written notes.

For those with hearing disabilities, the use of a qualified interpreter is often necessary, but is not necessarily the only option at the disposal of the provider, particularly if the office visit is neither complex nor lengthy in duration. In those circumstances, options like transcription services — or even the passage of notes or the provision of written materials — may be sufficient. On the other hand, where a visit is longer and more complex, involving diagnoses, procedures, treatment decisions, or discussions regarding prescribed medication, the use of an interpreter for a covered companion might be warranted and sufficient, especially if the patient agrees.

Who pays for auxiliary aids needed by a disabled patient?

Physicians may not charge an individual with a hearing impairment for the cost of an interpreter or other auxiliary aids and services. However, the costs may be included in general overhead and recouped through higher charges to all patients. Likewise, a medical practice cannot charge a patient a cancellation fee solely for the cost of hiring an interpreter if the patient fails to show up for his or her appointment. However, the practice may charge the patient the same general cancellation fee that is charged for all patients who miss appointments.

Does the ADA apply to “companions” who accompany a disabled patient?

The ADA applies not just to patients with a disability but also to the companions of patients where the companions have an ADA disability. A companion is defined as a family member, friend, or associate of a program participant who, along with the participant, is an “appropriate person with whom the public accommodation should communicate.” Clearly, under this definition, not every individual who accompanies a patient to a medical appointment will meet the criteria of a “companion” for whom an auxiliary aid or service must be provided. Medical providers may distinguish between a companion with whom it is critical for a physician to communicate — such as a parent, spouse, or caregiver — and an individual who is simply providing transport and/or company, but is not otherwise involved or invested in the patient’s treatment.

The fact that a patient requests that a companion be present during any examination or follow-up discussion is not necessarily determinative of whether that person is an individual protected by the ADA. The key issue is whether communication with the companion would be warranted if he or she did not have a qualified disability. If the answer is “yes,” then a medical office generally should take the appropriate steps to ensure effective communication with that individual unless doing so would create an undue burden.

What are the primary limits or exceptions to ADA requirements?

A patient with a hearing impairment is perhaps the most common example of where physician offices must furnish appropriate auxiliary aids and services where necessary to ensure effective communication with such individuals. But that does not mean a physician office must always provide a sign language interpreter when a patient has a hearing impairment. Instead, there are limits on what a physician practice must do to comply with the ADA, although determining precisely whether and how an exception to the law applies can be tricky without the help of knowledgeable legal counsel.

For example, physicians are not required to provide auxiliary aids and services if doing so would “fundamentally alter” the nature of the goods or services offered or would result in “an undue burden” on the practice (i.e., “a significant difficulty or expense.”)

In determining whether a request for auxiliary aids and services would impose an undue burden, the ADA regulations allow the provider to consider the nature and cost of the requested aid or service, the type of entity involved, and the overall financial resources of the entity. However, the fact that the cost of an interpreter exceeds the cost of the patient’s medical visit generally has not been found by the courts to be an undue burden. Thus, the cost of accommodating one or two hearing-impaired patients usually would not constitute an undue burden on the physician. On the other hand, if a practice has several hearing-impaired patients, paying for an interpreter for the numerous visits by such patients could place an undue burden on the practice.

Who makes the final determination of which auxiliary aid is sufficient?

While the final decision on whether to provide an interpreter or other auxiliary aid is up to the physician or practice, the reasonableness of that decision can be challenged in court. Indeed, courts have found an ADA violation where the health care professional decides not to use an interpreter and there is evidence that the method used did not result in effective communication. Thus, it is in the physician’s interest to reach agreement with the patient over which aid or service is appropriate. The patient’s approval should be documented in the patient’s medical record and, if possible, by having the patient sign a separate form agreeing that the auxiliary aid used is appropriate.

What types of ADA legal actions have been brought against physicians?

The legal actions that have been taken against health care providers under the ADA provide a useful roadmap for what not to do when it comes to treating disabled patients and also highlight the considerable expense and bad publicity that can arise from such cases.

For example, DOJ filed a complaint against a Florida physician, Dr. Hal Brown, and his medical practice, Primary Care of Treasure Coast (PCTC), and cited the practice for refusing to treat an elderly couple, Susan and James Liese, who are both hearing disabled. The couple had been patients of Dr. Brown and PCTC since 2005. In 2007, Susan Liese had gall bladder surgery at a local hospital at which Dr. Brown had privileges. Despite her requests, the hospital did not provide Ms. Liese or her husband with a sign language interpreter. The Lieses sued the hospital for violating their rights under the ADA. Dr. Brown and PCTC terminated the Lieses as patients after learning about the lawsuit. At his deposition in the Lieses’ lawsuit, Dr. Brown testified that he told PCTC staff to tell the Lieses that the reason for the termination was that he was downsizing or closing his practice. However, when the Justice Department had “a tester” contact the practice about scheduling an appointment with Dr. Brown, PCTC offered that person an appointment with him. The DOJ complaint alleged that Dr. Brown terminated the Lieses in retaliation for their lawsuit against the hospital. Among other things, the DOJ asked for monetary damages to compensate the Lieses for the harm caused by Dr. Brown’s actions and for civil monetary penalties against Dr. Brown and PCTC in the amount of $55,000 each. In addition, the complaint asked the court to require Dr. Brown and PCTC to adopt policies and procedures for complying with the ADA, including ADA training of PCTC employees.

In 2008, a patient filed a lawsuit in New Jersey against Dr. Robert Fogari for failing to provide a sign language interpreter. The jury found that Dr. Fogari violated the ADA and the Rehabilitation Act (a similar statute applying to entities that receive federal funding) and awarded the patient $400,000 in damages, including $200,000 in punitive damages. Dr. Fogari claimed that he couldn’t afford the $200 per visit interpreter charge and attempted to communicate with Ms. Gerena through her 9-year old daughter and other family members. The jury found that such efforts did not constitute equally effective communication and obviously didn’t believe that the cost of the interpreter constituted an undue burden for Dr. Fogari, whose annual income exceeded $400,000. The fact that Ms. Gerena received adequate treatment from Dr. Fogari did not militate against the violation of her rights under the ADA.

Do the ADA’s accessibility requirements apply to a physician’s website?

Most physicians probably do not realize that the ADA may also require that their practice website be accessible to persons with disabilities. Website accessibility by persons with disabilities has become an evolving issue in both federal and state courts.

An instructive example of the ADA’s application to websites is the case of National Federation of the Blind v. Target, where a California federal district court judge ruled that a retailer may be sued if its website is inaccessible to blind persons. The National Federation of the Blind (NFB) alleged that Target’s website was inaccessible to persons with blindness and other visual disabilities and therefore violated the ADA, the California Civil Rights Act, and the California Disabled Persons Act. The court accepted NFB’s legal theory that even if www.target.com was not itself a place of public accommodation, unequal access to the company’s website denied blind patrons the full enjoyment of the goods and services of Target stores, which themselves are places of public accommodation. This is an example of the ADA “nexus theory,” which involves a claim of unequal access to a service of a place of public accommodation where there is a “nexus” between the challenged service and the place of public accommodation. The court concluded that the plain language of the ADA encompasses functions of places of public accommodation that go beyond the mere “brick and mortar” location, and that the ADA prohibits discrimination in the full enjoyment of the “goods, services, facilities, privileges, advantages, or accommodations” of any place of public accommodation; even if those services are not in a place of public accommodation.

The Target case strongly suggests that physicians who use their websites to provide services (such as the ability to make online appointments, information on medical conditions, or the ability to order products) for their patients should make their sites accessible to persons with disabilities. As in Target, even if a physician’s website is not itself a place of public accommodation, unequal access to the website can deprive persons with disabilities of equal enjoyment of the information and services the practice provides. This conclusion is buttressed by the fact that the DOJ has taken the strong positions that websites of places of public accommodation must be accessible to the public. Putting aside the ADA, physicians, as the proponents of patient health and welfare, arguably should be leading the way in making their practice websites accessible to persons with disabilities.

What are some ways to make my website sufficiently accessible?

For a website to be accessible under the ADA, it must provide persons with disabilities equal ability to enjoy the information, services, and other benefits offered by the site. From a technical perspective, accessibility will of course vary with the nature of the disability. For patients and other end users of physicians’ sites, one of the most notable assistive technologies is the use of screen readers and magnification software for persons with blindness and other visual disabilities. Another accommodation is to create access keys that allow persons with limited physical capabilities to navigate the keyboard using key strokes instead of a mouse. Most web developers should be familiar with web accessibility solutions and how assistive technologies should be able to interact effectively with core web accessibility features. Typically, developers can incorporate them into physician websites with little cost or difficulty.

Conclusion

Needless to say, the ADA’s applicability to a physician setting can be very complex. While the law allows flexibility by a physician’s office in which auxiliary aid to provide to a disabled patient, the decision whether to deny a particular auxiliary aid to a patient cannot be arbitrary or unreasonable. Physicians and their office staff would be well-advised to undergo ADA training and seek the advice of legal counsel on the various ADA compliance challenges facing medical practices.

Originally published in the "Legally Speaking" column of Dermatology World
May 2017

Dermatologists now have guidance on how to avoid risks of discrimination when providing teledermatology to patients. New guidelines from HHS and the Department of Justice (DOJ) explain that patients with disabilities and limited English proficiency must have equal access to telehealth services. The guidelines require you to make accommodations for these patients. Patients in both categories — with disabilities or limited English proficiency — have the right to file complaints if they believe they have experienced discrimination related to telehealth services.

What should dermatologists do to comply?

Many of the provisions outlined in the new guidance are similar to ADA requirements for in-person visits.

Where needed, make changes to your policies to ensure you provide additional support to the patient before, during, and after their virtual visit. This support may include giving patients with disabilities additional time or allowing a support person to participate in the teledermatology appointment.

You must provide support for patients who have disabilities that affect their communication. Such support may include sign language interpretation, closed captioning, a screen-reader, or audio descriptions.

You must also provide support to patients with limited English proficiency. Services for these patients could include support from an interpreter or bilingual employee, or written translation of documents. You should select a teledermatology platform that supports inclusion of a telephone interpreter or video remote interpreter as part of the call.

For more information, read the government's guidance on nondiscrimination in telehealth (PDF).

Be sure to check out our preferred medical translation service provider, Language Scientific, to comply with the ADA and ACA requirements.

Is your dermatology practice's website ADA compliant?

by Christina L. Krysinski, JD, and Robert M. Portman, JD

The Americans with Disabilities Act of 1990 (ADA) is a comprehensive federal civil rights law designed to ensure equal access and protection for individuals with disabilities. Under the ADA, medical practices are considered public accommodations and are therefore required to ensure that their products and services are equally accessible to persons with qualified disabilities. While you may be familiar with the ADA’s requirements for construction of buildings or other physical accessibility standards, many practices are not aware that the ADA’s standards also apply to websites. This article covers your obligations to ensure that your practice’s website is accessible to individuals with disabilities.

Q: Why do I need to make changes to my office’s website to comply with the ADA?

A: Title III of the ADA prohibits discrimination on the basis of disability by doctors’ offices. Individuals with disabilities face significant barriers in accessing information online.

Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodation and guarantees people with disabilities the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Public accommodations include doctors’ offices, along with other private entities like restaurants, movie theaters, hotels, and retail stores. As a result, your practice’s office must comply with the ADA’s requirements.

Title III requires that a public accommodation make reasonable modifications in policies, practices, or procedures when needed to afford goods and services to people with disabilities, unless it can show that doing so would fundamentally alter the nature of the goods and services it provides. ADA regulations also require public accommodations to provide appropriate auxiliary aids and services — such as qualified sign language interpreters, qualified readers, or written materials in braille or larger type — where necessary to ensure effective communication with people with disabilities. “Effective communication” means communicating as effectively with a person with a disability as with a person without a disability. The level of assistance needed to do that will hinge on the type of activity involved.

However, the rules have limits. Public accommodations are not required to provide auxiliary aids or services where doing so would fundamentally alter the goods or services being provided or create an “undue burden,” such as significant difficulty or expense. These facilities are also not required to provide access to goods and services to a person with a disability who poses a direct threat to others’ health and safety, such as if the person has a contagious condition.

While the internet as we know it today did not exist when the ADA was enacted in 1990, several courts and the U.S. Department of Justice (DOJ) have interpreted the ADA’s accessibility requirements to apply to websites of public accommodations. Specifically, websites must be equally accessible to, and ensure effective communication with, persons with disabilities. Given that the internet is increasingly becoming a popular mode of communications among doctors and patients, it is essential that your practice ensure that its website is accessible to individuals with disabilities. For example, many individuals use the internet to obtain health care information or research physicians, access information from their physicians, or fill out forms.

Individuals with disabilities are often effectively denied access to certain services because many websites are incompatible with assistive technology, such as speech recognition software or screen readers. This sometimes occurs because website developers assume that everyone accesses websites in the same way and, therefore, fail to include design features that are compatible with assistive technologies. For example, screen readers for individuals who are blind often cannot read PDF documents, while alternative text-based formats (such as HTML or Rich Text Format) are more compatible with screen readers. As a result, it is critical that all website content (including text, images, sounds, videos, controls/navigation tools, and animation) are accessible, at least to the point where doing so does not impose an undue burden on the practice, particularly in terms of cost.

Q: How do I comply with the ADA’s accessibility requirements for websites?

A: There are no strict standards, but the WCAG are useful guidelines for ensuring website accessibility.

Unfortunately, there is no clear guidance available for establishing ADA compliance for websites. The safest way to comply with the ADA is to ensure that your website meets the applicable Web Content Accessibility Guidelines (WCAG). While meeting the WCAG standards is not explicitly required under the ADA (as there are other ways to provide persons with disabilities with equal access to a public accommodation’s website), these standards are a useful framework for making your website accessible. The WCAG standards include elements like providing text alternatives for non-text content, such as images or charts, as well as including text transcripts or captions for audio and video content. The standards also include guidelines for organizing web content in a way that allows users to easily navigate the website and find the content that they need.

As previously noted, cost is a factor in the ADA analysis in that public accommodations are not required to take steps to provide equally accessible goods and services if doing so would impose an undue burden on the entity. Complying with the WCAG standards can be very expensive and may take several months or years to achieve. Each practice will have to do its own cost-benefit analysis weighing the cost of achieving ADA-compliant accessibility with the risk of being sued for violating the ADA.

At a minimum, you should consider things like:

• Adding text equivalents to every image

• Posting documents in text-based formats

• Structuring your website to allow users to alter the color and font size through their web browser

• Captions on any videos

Your website should include an accessibility statement that provides an alternate method of communicating with your practice via email or phone in order for patients or others to request information in a compatible format. You should also train at least one staff person to be able to respond to and address any accessibility concerns.

In addition to your website, you should also consider whether any mobile applications that your practice uses are accessible for individuals with disabilities. There are digital accessibility experts that you can hire to perform a website audit or review mobile applications and recommend appropriate improvements; however, these services can be costly. For a lower cost option, accessibility evaluation tools may also be available online, but these tools may not provide accurate results.

Q: What do I do if I receive a complaint or a demand letter about my website’s accessibility or ADA compliance?

A: Take the complaint or demand letter seriously and consult with an attorney.

There is a cottage industry of attorneys seeking to sue practices for non-compliant websites. As a result, lawsuits based on non-compliant websites of public accommodations have increased in recent years. For example, in 2017, there were over 800 lawsuits filed in federal court against businesses (including, but not limited to, physicians’ offices) alleging that the business was a public accommodation with an inaccessible website. Most of these lawsuits were in New York and Florida, but the risk of a lawsuit exists for physician’s offices all over the country. Many lawsuits have also been filed in state courts.

In addition to private lawsuits, individuals can file complaints with the DOJ alleging disability discrimination by a public accommodation. After receiving a complaint, the DOJ may refer the complaint for possible resolution through the ADA Mediation Program or to a United States Attorney’s Office in your area for investigation. The DOJ may also refer the complaint to another federal agency, undertake its own investigation, or consider the complaint for possible litigation.

In the event that you are contacted with concerns about your website’s accessibility or a demand letter, we recommend taking the complaint or demand letter seriously and speaking with an attorney with ADA expertise as quickly as possible. You might consider making changes to your website in response to a complaint or demand letter, but you should first speak with an attorney. While lawsuits based on an allegedly non-accessible website have had varying success, the ultimate risk to your practice will depend on the specific facts and circumstances in light of the lack of clear guidance from the courts or federal government in this area.

Originally published in the "Legally Speaking" column of Dermatology World
September 2019

Complying with the law while treating patients with special needs

by Rachna Chaudhari

Dermatology practices are increasingly faced with complying with new or changing laws and regulations. It can be a constant challenge to follow these issues and ensure compliance. Some of the most common questions the Academy’s practice management staff receive involve how practices should comply with the complex rules regarding patients with special needs. Below are answers to some of the most commonly asked questions.

What laws should my practice be aware of regarding patients with special needs?

A: There are two laws that affect how your practice should treat patients with special needs: the Americans With Disabilities Act (ADA) and Title VI of the 1964 Civil Rights Act. The ADA is a federal law that prohibits discrimination on the basis of disability. A disability is defined as “a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.” Thus, a dermatology practice cannot refuse to see a patient simply due to their disability if they accept any payment from Medicare or Medicaid.

Title VI of the 1964 Civil Rights Act, another federal law, prohibits discrimination based on national origin. The Department of Health and Human Services (HHS) has expanded this definition to include patients with limited English proficiency (LEP). Thus, providers who accept Medicare or Medicaid payments must abide by the regulations and provide translation services to LEP patients. However, if your practice only accepts Medicare Part B payment, you do not have to abide by this regulation.

What types of services should I offer to comply with the ADA?

A: The ADA requires practices to accommodate patients with disabilities — which includes not only providing interpreter services, if necessary, but providing patients with access to your physical office building. Analyze your office space to ensure that patients in wheelchairs are able to enter the premises through a ramp or wider doors. Restrooms should be equipped with handicapped stalls and handicapped parking spaces should be available. See a helpful checklist on how to comply with these standards.

In addition to ensuring that your physical practice space can accommodate patients with disabilities, you must ensure that staff can communicate with the patient. It is the practice’s responsibility to provide interpreter services for the patient free of charge. Although the ADA does not provide specific guidance on interpreter services, physicians have been found legally liable in cases where they did not offer and pay for interpreter services for patients with hearing or speech disabilities. HHS has stated that physicians can use a variety of tools at their disposal to communicate with disabled patients including using handwritten notes to communicate with deaf patients or using telephonic translation services. Medicare will not reimburse you for any interpreter services. However, some insurance contracts will reimburse for these services; investigate this option through each carrier.

Is my practice required to offer interpreter services to limited English proficiency patients?

A: Your practice is expected to voluntarily comply and offer interpretive services to LEP patients. HHS understands that small practices may not have the resources of larger hospital-based systems and therefore allows greater flexibility in their compliance. The agency states “there is no one size fits all’ solution for Title VI compliance with respect to LEP persons, and what constitutes reasonable steps’ for large providers may not be reasonable where small providers are concerned.” However, practices are expected to provide vital documents such as consent forms or treatment authorization forms in a manner in which patients can fully understand what they are authorizing. Providers can use patients’ family members to aid with translation services as well. However, if the patient is unable to abide by this request, the practice must determine a viable solution at no charge to the patient.

Can the practice collect any additional fees from the patient if the charges for the interpreter services are more than the charges for the visit?

A: No, the practice cannot collect any additional fees from the patient. Unfortunately, if the cost of the interpreter services is more than the charges for the visit itself, the provider has no recourse for collecting additional payment. Additionally, the provider cannot dismiss the patient from their practice for this reason. Neither Title VI nor the ADA allow practices to dismiss patients on the basis of their disability or limited language proficiency.

Originally published in the "In Practice" column of Dermatology World
February 2012