Frequently Asked Questions: Americans with Disabilities Act 

The Americans with Disabilities Act, or ADA, evolved from the Civil Rights Act of 1964 and the Federal Rehabilitation Act of 1973. The goal of the ADA is to eliminate discrimination against persons with disabilities and provide enforceable standards to address such discrimination.1

The ADA protects individuals with a disability.  A disability includes “a physical or mental impairment that substantially limits one or more of the major life activities,” “a record of such an impairment,” or “being regarded as having such an impairment.”2 A major life activity includes caring for oneself, breathing, learning, and working.3 Not everything that restricts a person’s major life activities is an impairment.4 Examples include obesity (unless there is a physiological disorder), hepatitis A, and side effects from certain drugs.

A similar provision is the Department of Health and Human Services (HHS) Guidance Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Person. The policy is a guide, not a regulation. The purpose behind the guide is to provide limited English proficient (LEP) persons with meaningful opportunity to participate in HHS-funded programs by requiring recipients of federal financial assistance from HHS to take reasonable steps to ensure LEP persons have access to such services.5 Recipients of HHS assistance do not include providers who only receive Medicare Part B payments.6

The following questions and answers are designed to assist physicians when presented with a disabled or LEP person in his or her clinic.

Q. I occasionally see HIV-positive patients, including some who require minor surgery that can be completed in my office. May I require that these patients be treated as an inpatient for enhanced infection control purposes?
A. No. HIV-infected individuals are protected under the ADA. Because you would be providing disparate treatment from that given to noninfected individuals, requiring a hospital admission and stay for minor surgery that can be completed in your office is prohibited. Universal precautions, designed to reduce the possibility of transmission of the HIV virus, are to be implemented and used for all patients.

Q. May I terminate a disabled patient from my practice?
A. Yes, but only for appropriate reasons. Termination due to the patient’s disability is prohibited. However, termination for reasons other than the disability, such as failure to pay the bill or disruptive behavior unrelated to the disability, is permitted.

Q. One of my patients has fibromyalgia and is demanding pain medication in amounts in excess of what I feel comfortable providing. I sent a termination letter, but he responded by saying that I could not terminate him because he is disabled. Is the patient correct?
A. Possibly. As with any ADA issue, there must be a careful examination of the conduct at issue and the reasons for the termination. If you terminated the physician-patient relationship based on the patient’s disability, the patient is correct. However, if the termination was due to an appropriate reason (such as learning that the patient had forged a prescription to obtain medication), then you are correct. In this situation, it may be best to refer the patient to a pain management provider to address the chronic pain issues.

Q. One of my patients was recently diagnosed with multiple sclerosis (MS). I am a family medicine physician with very limited experience treating this condition. Her symptoms are minimal now but are rapidly progressing to a point that will be beyond my expertise. I have explained to the patient that she will need to seek care elsewhere, but she stated that I am required to care for her and her MS. Is this true?
A. No. Although courts have held that ADA requires physicians to treat patients with disabilities, cases involving this issue are very fact-specific. For this situation, it could be deemed an undue burden for you to provide care for the patient’s multiple sclerosis. Additionally, you may refer the patient as she is seeking care outside of your specialty (and if, in the normal course of operations, you would make a similar referral for a patient who requires the same treatment).7 As this patient’s disease process will reach a point outside your expertise, prudent practice and standard of care suggest that her care should be transferred to a physician with such expertise.

Q. I have one deaf patient with whom I exchange handwritten notes during examinations as a form of communication. Though it is time consuming, effective communication occurs. The patient is now demanding that I provide and pay for a sign language interpreter as it has become too cumbersome for her to write notes. Am I required to pay for the interpreter?
A. Yes. To be in compliance with ADA, the patient can select the method of communication that serves his or her needs, including an interpreter, unless you can demonstrate that providing the interpreter would result in an undue burden; i.e., significant difficulty or expense.8 No charge can be made back to the patient or family for the service.9 Additionally, pursuant to the Federal Rehabilitation Act of 1973, medical practices with at least 15 employees that receive financial aid from HHS must make auxiliary services and aids available to patients who have a hearing impairment at no cost if they are needed by the patient for “effective communication.”

Q. As a solo practitioner who accepts Medicare/Medicaid patients, am I required to comply with the LEP requirement for interpreters?
A. Yes. The exception is if you only receive Medicare Part B payments.

To determine the extent of your obligation, analyze the following four factors:

  1. The number or proportion of LEP persons served or encountered by your clinic. The greater the number, the more likely language services will be needed.
  2. The frequency with which LEP persons come into contact with your clinic. Even if unpredictable or infrequent, there must be a plan for obtaining interpretive services.
  3. The nature and importance of your services. The more important the services or greater the consequences, the more likely interpreter services will be needed. Also, determine if a delay in accessing your services could have serious or life-threatening implications.
  4. The resources available to you and the cost. As a solo practitioner, you are not expected to provide the same level of service as a large, multispecialty group, but you are still required to take reasonable steps to provide the service. Investigate technological services or sharing resources with other providers.

Q. May a family member act as an interpreter for a hearing-impaired or non-English-speaking patient?
A. Yes, but it is recommended only as a last resort. Lay personnel are rarely familiar with medical terminology and its nuances. Additionally, the patient may not want a family member to have access to his or her health information. If care is needed on an urgent or emergent basis and an interpreter is not available, a family member can be used. Also, if the patient consents and you believe translation or interpretation is adequate and correct, a family member can be used. The family member should be an adult, unless one is unavailable and immediate care is necessary to prevent further harm or injury to the patient. Otherwise, it is recommended that you have a clinical staff member trained to provide interpretation or use certified interpreter services to ensure proper translation of medical information. The local hospital should have a list of qualified interpreters. Other resources include a local nationality society, the Registry of Interpreters for the Deaf at www.rid.org or (703) 838-0030, or the local center for the deaf. Additionally, it is recommended that you have consent forms—especially those for invasive procedures—translated into the applicable non-English languages by a certified translator for proper interpretation.

 

References

1  42 USC § 12101 et seq.
2  Ibid.
3  28 CFR § 36.104.
4  Federal Register July 25, 1991, 56(144), 35694, 35699.
5  Federal Register August 8, 2003, 68(153), 47311–23.
6  Ibid.
7  28 CFR § 36.302(b)(2).
8  28 CFR § 36.303(a).
9  28 CFR § 36.301(c).

 

 

 

By Susan Shepard, MSN, RN, Director, Patient Safety Education.

 


The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

J9456 10/13

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