Americans with Disabilities Act: Frequently Asked Questions

Susan Shepard, MSN, RN, Senior Director, Patient Safety and Risk Management Education, and Richard F. Cahill, JD, Vice President and Associate General Counsel, The Doctors Company

The goal of the Americans with Disabilities Act, or ADA, is to eliminate discrimination against persons with disabilities and provide enforceable standards to address such discrimination.1 In response to recent news reports highlighting a surge in lawsuits targeting physician websites with claims that they violate ADA accessibility requirements, we have added a new Q&A with resources to help you ensure compliance. Because these types of claims are not generally covered under our professional liability insurance policy, it is vitally important for every practice with a website to ensure compliance.

Disabilities Defined

Under the ADA 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.”1 A major life activity includes caring for oneself, breathing, learning, and working.2 Not everything that restricts a person’s major life activities is an impairment.3 Examples of this include obesity (unless there is a physiological disorder), hepatitis A, and side effects from certain drugs. The definition of what constitutes an impairment or disability is, however, subject to expansion based on federal and state legislative changes and rulings by appellate courts and administrative law judges.

Limited English Proficiency

A similar provision is the Department of Health and Human Services (HHS) Revised Guidance Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons. 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. (Recipients of HHS assistance do not include providers who only receive Medicare Part B payments.)4

Information and Communication Technology Accessibility

In light of the U.S. Department of Justice’s position on information and communication technology (including websites and mobile applications), it is important to review your practice website proactively to ensure compliance with requirements for accessibility to people with disabilities.

How can I ensure my website is ADA compliant?

Your website, as determined by the U.S. Department of Justice, is a place of public accommodation and must be accessible to people with disabilities that affect their hearing, vision, or physical capabilities.

Determine if your website is in compliance with Web Content Accessibility Guidelines (WCAG), 2.1 Level AA, at aCe: Find out if your website is ADA & WCAG compliant. Additional websites, such as Siteimprove and Google’s Lighthouse accessibility scoring, can also be used to monitor conformance to WCAG.

If adjustments to your website are necessary, available solutions include accessibility widgets and services such as EqualWeb, which help users make improvements such as enlarging text or improving contrast.

For more information on the issue of website compliance, see DOJ Settlements and Website Accessibility and the Technical Accessibility Standards.

The following questions and answers can assist physicians in complying with additional ADA requirements and LEP guidelines.

Is it possible to discontinue the physician-patient relationship with a disabled patient in my practice?

Yes, but only for appropriate reasons. Dissolving the physician-patient relationship due to the patient’s disability is prohibited. You are, however, allowed to end a patient relationship for reasons other than the disability. Examples include failure to pay the bill, repeated and/or chronic nonadherence to the physician-ordered treatment modalities, and disruptive behavior unrelated to the disability. For additional information, see our article “Terminating Patient Relationships.”

One of my patients has fibromyalgia and is demanding pain medication in amounts in excess of what I feel comfortable providing. I sent a letter dissolving the relationship, but he responded by saying that I could not end the relationship because he is disabled. Is the patient correct?

Possibly. As with any ADA issue, there must be a careful examination of the conduct at issue and the reasons for dissolving the physician-patient relationship. If you withdraw from the relationship based on the patient’s disability, the patient is correct. If, however, the withdrawal is 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 in order to address his chronic pain issues. Additionally, document the chart clearly to reflect the reason for withdrawal.

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?

No. Although courts have held that the ADA requires physicians to treat patients with disabilities, cases involving this issue have very specific facts. For this situation, it could be deemed an undue burden for you to provide care for the patient’s MS. 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).5Because 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. Additionally, if you fail to make an appropriate referral to a qualified specialist and an unfortunate adverse event occurs as a result, a lawsuit may arise seeking damages for the injury that allegedly could have been prevented if you had referred the patient to a specialist.

I occasionally see HIV-positive patients, including some who require minor surgery that can be completed in my office. Am I permitted to require that these patients be treated as inpatients for enhanced infection control purposes?

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.

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. Because it has become too cumbersome for her to write notes, the patient is now demanding that I provide and pay for a sign language interpreter. Am I required to pay for the interpreter?

Yes. To be in compliance with the 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.6No charge can be made back to the patient or family for the service.7 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 at no cost to patients who have a hearing impairment if they are needed by the patient for effective communication.

As a solo practitioner who accepts Medicare/Medicaid patients, am I required to comply with the LEP requirement for interpreters?

Yes. The exception is if you receive only 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.

Is a family member permitted to act as an interpreter for a hearing-impaired or non-English-speaking patient?

Yes, but it is permitted only in limited circumstances. When considering the use of family members or adult companions, it should be noted that 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 confidential health information.

For patients who use sign language: If care is needed on an emergent basis with the possibility of imminent danger to the patient or the public and a qualified interpreter is not available, an adult or minor child accompanying the patient may be used. In situations not involving an imminent threat, an accompanying adult who uses sign language may interpret if the patient requests it, the accompanying adult agrees, and relying on the accompanying adult is appropriate. In this situation, document clearly that the patient agrees to this alternative.

For non-English-speaking patients: Analyze the four factors described above to obtain appropriate interpretive services.

If a family member must be used as an interpreter, 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 for invasive procedures—translated into the applicable non-English languages by a certified translator for proper interpretation.

If you have questions, please contact the Department of Patient Safety and Risk Management at (800) 421-2368 or by email.

References

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

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 considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

J12791 04/21

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