THE LEGAL ADVISOR
Hearing Impaired Patients and
the Americans with Disabilities Act
BACKGROUND
The Americans with Disabilities Act
(ADA) became law in 1996. The purpose of the ADA is to provide full and
equal enjoyment of goods and services to persons with disabilities.
Although many people think of the ADA solely in the context of
employment, the ADA also applies to places of "public accommodation" -
places providing goods or services to the public for a fee. In this
context, the ADA applies to health care settings, including physician
offices, clinics, and hospitals. Therefore, health care providers are
required to take certain steps to ensure that disabled patients have
access to health care services in the same way that non-disabled
patients do. One of the most common disabilities that health care
providers encounter is hearing impairment.
WHO IS "DISABLED"?
The ADA provides that any person
who has a physical or mental impairment that causes them to be
substantially limited in a major life activity is, for the purposes of
this law, a person with a disability. A "physical or mental
impairment" includes a variety of mental illnesses and
developmental delay, as well as disfigurement, loss of limb, and loss of
or impairment in hearing or sight. "Substantially
limited" is defined as impacted on a regular basis in such
routine functions as hearing, seeing, or walking.
The ADA also provides protections
for a person who has a past record of such a disability, or is simply
perceived as having such a disability. Generally, a person with a
temporary condition such as a fractured extremity is not, for that
reason alone, considered disabled. However, temporary injuries must be
evaluated on a case-by-case basis.
WHAT DOES THE ADA REQUIRE? AND WHAT
ABOUT THE COST?
The ADA prohibits discrimination
against any patient on the basis of disability. However, the term
"discrimination" is construed very broadly and includes not just refusal
to treat a patient due to a disability, but also failure to provide
reasonable auxiliary aids and services so that such a patient can access
health care readily.
Health care providers are not
permitted to charge disabled patients for the cost of auxiliary aids and
services. However, an individual physician, group practice, or clinic
may be able to write off certain expenses required by the ADA on their
federal and state taxes. Consult a professional tax advisor regarding
this issue. A physician or facility may also demonstrate that providing
the auxiliary service is cost prohibitive, but may only do so after
showing that paying for the service would create an "undue burden" on an
entire practice, clinic, or hospital, taking into account all of the
available operational and financial resources.
It is only in very rare
circumstances that the undue burden exception applies. For instance, if
the cost of providing the auxiliary service for a patient is greater
than the fee to be charged in a given case, that is not sufficient to
excuse a physician from providing the needed aid or service as an
"undue burden." Remember that failure to comply
with ADA requirements can result in large fines from the government, or
in legal action by the patient. Providing the service and recouping
costs through tax credits or deductions as recommended by your tax
professional may be the wisest course of action.
WHAT DOES THIS MEAN FOR MY HEARING
IMPAIRED PATIENTS?
The key to treating any patient,
not just persons with disabilities, is clear communication between the
provider and the patient. When dealing with hearing impaired patients,
communications may be compromised. A variety of auxiliary aids and
services are available to assist the patient and the provider.
In routine settings, patient and
provider may be able to communicate using nothing more than handwritten
notes. However, when complex procedures, surgery, or treatment with
extensive risks and benefits is involved, other resources may be needed.
These include pre-printed written explanations and qualified medical
interpreters. You may decide to include questions about hearing
impairment on patient intake forms so you know from the first patient
encounter which resources may be needed. Interpreter services may be
available from the clinic or hospital where you practice, or from
commercial providers.
In some situations it might be
appropriate to use a family member as an interpreter, but remember that
such a person might not have the training or medical vocabulary to
convey complex concepts. Further, patient privacy should always be
considered - your hearing impaired patient may not want to share their
confidential medical communications with their family.
IN SUMMARY
When dealing with hearing impaired
patients, the key to ADA compliance lies in facilitating communication.
Simple, day-to-day communication may be addressed by the use of a
notepad and pen to converse. More complex communications may require
more complex solutions. If you are unsure that you can communicate
effectively with your patient, err on the side of caution and retain a
qualified medical interpreter.
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