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. 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” (42 USC §12101). Major life activities include caring for oneself, seeing, hearing, speaking, eating, sleeping, breathing, learning, walking, standing, sitting, reaching, working, and the operation of a major bodily function (28 CFR §36.105).
Not everything that restricts a person’s major life activities is an impairment. 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 (Federal Register, July 26, 1991, 56, 35694, 35699).
Our experts frequently answer members’ questions regarding ADA compliance. In response, we have compiled a Q&A with resources to offer strategies for addressing the most common inquiries. Because claims involving the ADA are not generally covered under our professional liability insurance policy, it is important for every practice to be aware of potential issues and ensure compliance.
Yes, but only for appropriate reasons. Dissolving the clinician-patient relationship due to the patient’s disability is prohibited. You are, however, allowed to end a patient relationship for reasons other than the patient’s disability. Examples include failure to pay the bill, repeated and/or chronic nonadherence to the practitioner-ordered treatment modalities, and disruptive behavior unrelated to the disability. For additional information, see our article “Terminating Patient Relationships.”
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.
No. Although courts have held that the ADA requires practitioners 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) (28 CFR §36.302[b]).
Because 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 specialist 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.
No. Individuals with HIV are protected under the ADA. Because you would be providing disparate treatment from that given to individuals who are not infected, 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.
Yes. To be in compliance with the ADA, patients can select their preferred method of communication, including an interpreter, unless you can demonstrate that providing the interpreter would result in an undue burden, i.e., significant difficulty or expense. No charge can be made back to the patient or family for the service (28 CFR §36.303[a] and 28 CFR §36.301[c]).
Additionally, pursuant to the Federal Rehabilitation Act of 1973, medical practices that receive financial aid from the U.S. Department of Health and Human Services (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. To assist with providing these services, practices may access resources through the telephone company, local hospital network, and the patient’s health plan. To learn more, review the ADA National Network’s Effective Communication fact sheet.
Yes. The exception is if you receive only Medicare Part B payments. While providing interpreters for patients with LEP is not an ADA requirement, HHS provides the Revised Guidance Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons. Although the policy is a guide and not a regulation, we strongly recommend that you follow the requirements to avoid HHS scrutiny. The purpose behind the guide is to provide persons with LEP with meaningful opportunities to participate in HHS-funded programs by requiring recipients of federal financial assistance from HHS to take reasonable steps to ensure persons with LEP have access to such services. As noted above, recipients of HHS assistance do not include providers who only receive Medicare Part B payments (Federal Register, August 8, 2003, 68, 47311–47323).
To determine the extent of your obligation, analyze the following four factors:
- The number or proportion of persons with LEP served or encountered by your practice. The greater the number, the more likely language services will be needed.
- The frequency with which persons with LEP come into contact with your practice. Even if unpredictable or infrequent, there must be a plan for obtaining interpretive services.
- 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.
- 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 technology services or sharing resources with other providers.
Yes, but it is permitted only in limited circumstances. When considering the use of adult family members or companions, it should be noted that lay personnel are rarely familiar with medical terminology and its nuances and may not provide an accurate translation. Additionally, the patient may not want a family member to have access to the confidential health information. The patient’s minor child should not be engaged for this purpose.
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 local nationality societies, the Registry of Interpreters for the Deaf, and local centers 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.
Your website, as determined by the U.S. Department of Justice, is a place of public accommodation and must be accessible to people who have disabilities that affect their hearing, vision, or physical capabilities. It is important to review your practice website proactively to ensure compliance with requirements for accessibility. In recent years, a surge in lawsuits has targeted healthcare websites with claims that they violate ADA accessibility requirements.
Determine if your website complies with the Web Content Accessibility Guidelines (WCAG), 2.1 Level AA, at accessiBe: 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 (like 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, and our article “ADA Accessibility for Healthcare Websites: How Practices Can Avoid Suits and Attract Patients.”
Service animals fall under the ADA; emotional support animals generally do not. The ADA defines a service animal as “a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person’s disability.” In contrast, emotional support, therapy, comfort, or companion animals provide emotional comfort just by being with an individual and are not trained to perform specific tasks.
The ADA makes a distinction between emotional support animals and psychiatric service animals. Animals that are trained to support an individual with certain mental health conditions are considered “psychiatric service animals” and fall under the ADA. To learn more about service animals, emotional support animals, and psychiatric service animals, visit the ADA’s Frequently Asked Questions about Service Animals and the ADA. Additionally, many states have enacted legislation supplementing federal law. Practitioners are urged to consult applicable provisions in their jurisdiction to help ensure regulatory compliance.
Generally, as noted above, emotional support animals do not fall under the ADA, unless regarded as a psychiatric service animal. It is always recommended that any letters and/or supporting documents be based on clinical assessment and medical record documentation. These types of letters and supporting documents can be provided and signed only by a licensed physician or mental health clinician. The best approach is to always do what is best for the patient, and if the patient’s situation warrants the use of an emotional support animal based on clinical assessment, then supporting documents should be provided.
Patients cannot be denied service because they use a mobility device or require more time than patients with full mobility. Do not instruct patients with disabilities to bring a helper to the appointment to assist with transfers and the exam; instead, treat all patients the same. Generally, patients should be examined on an exam table, not in their mobility device. If a helper is accompanying the patient, engage directly with the patient, not through a third person when speaking. For more information, see the ADA’s Access to Medical Care for Individuals with Mobility Disabilities.
No. Generally speaking, employees should not assist patients with transport from the parking lot into the office. As a covered entity, you cannot discriminate against the patient, but a practice should not assume duties not required. If the transport is arguably done incorrectly and the patient is harmed, the practice may be held accountable, and a claim for professional liability may be made.
Additional Compliance Strategies
Every healthcare practice should be familiar with the ADA and its different applications in the office setting. This means that every member of the office should be trained in how to handle different types of phone calls and inquiries. Patients with disabilities generally know their rights, and so should every staff member in the office. Staff members should never have to guess how to interact with patients who have disabilities. We recommend the following strategies to prepare your practice:
- Develop policies and procedures for managing different types of disabilities and language barriers. Periodically evaluate staff compliance and review the policies and procedures to confirm they conform to ADA and community standards.
- Train new employees at orientation regarding the types of situations they may encounter over the phone or in interactions with patients in the office. Provide ongoing education to all staff as a refresher at needed intervals. Provide quizzes to test knowledge, and document education in administrative files. (If the practice is investigated, it may be asked to demonstrate that staff training has occurred.)
- Use a “mystery caller” approach to test staff members on their patient interactions.
- Review administrative paperwork and the practice website for ADA compliance.
- Review patient documents—including questionnaires, educational materials, and other forms—for ease of understanding, particularly for patients with LEP. Make documents available in the most common languages seen in the practice.
- Ensure clinical staff has received training in how to manage patients using mobility devices—including transfers to exam tables and basic safety protocols.
- Assess your physical practice location for ADA compliance. See the ADA National Network’s tool Is Your Facility Accessible for All Patients? and the ADA Checklist for Existing Facilities.
If you have questions, please contact the Department of Patient Safety and Risk Management at (800) 421-2368 or by email or contact the ADA Information Line at (800) 514-0301.