They aren't new obligations -hands.jpg

2014 was the 50th anniversary of the Civil Rights Act of 1964.

And state and local agencies, businesses and places of “public accommodation” (including hospitals and the offices of doctors, lawyers and their accountants – 28 C.F.R. §36.104) have been subject to the requirements of the Americans with Disabilities Act (ADA) for more than 20 years. Those participating in programs receiving federal financial assistance (including Medicare, Medicaid, Tricare, etc.) also have responsibilities to ensure equal participation and access under Section 504 of the Rehabilitation Act of 1973 and Title VI of the Civil Rights Act of 1964. States also have similar requirements.

And this is not an area where the government agencies that are primarily responsible for enforcing these provisions have been delinquent in publishing their interpretations and resources for voluntary compliance. The Department of Justice has long maintained www.ada.gov , a robust site with video training materials, downloadable “fact sheets” and FAQs. The Office for Civil Rights also has extensive resources on its site.


And yet in 2011 / 2012 / 2013 / 2014

A large health system in Northern Virginia found itself signing a “Consent Decree” with the government and a private plaintiff that imposes obligations greatly in excess of those required under the ADA. Essentially, in addition to being compliant with obligations it already had (and paying over $100,000 in settlements) the system was also required, for three years, to prove its compliance by creating and submitting documentation solely for that purpose. One good result – this excellent page from the system’s Internet site describing its interpretation services.

Other hospitals have also been the focus of federal enforcement action - Yavapai Regional Medical Center in Prescott AZ (sign language interpretation), Citizen’s Medical Center in Victoria TX (denial of childcare for a autistic child), Bertrand Chaffee Hospital, Springfield NY (TTY, interpreters), Cheshire Medical Center and Dartmouth Hitchcock Clinic, Keene NH (use of a family member as interpreter); Henry Ford Medical Center (sign language interpretation) , North Shore University Health Systems, Illinois (no sign language interpretation ), Memorial Health System, Colorado Springs (deaf and LEP patients). The Department of Justice has also moved to intervene in a case against an Arizona orthopedic surgeon who refused to operate on a patient with HIV , settled with two other providers who refused to treat patients with HIV and with a neurology group that allegedly failed to provide a sign language interpreter to a patient on three separate occasions, including during an elective medical procedure. This California surgeon refused to operate on a patient with HIV, failed to settle with the government and as a result had his right to receive federal funding terminated. And this Michigan Hospital earned itself a "resolution agreement" after briefly reassigning "an African-American nurse who was providing care to a Caucasian infant in [its] Neo-Natal Intensive Care Unit, based on the father's request that no African-Americans provide care to his child"


This primary care practice in Florida settled a claim of retaliation brought by a deaf couple that were terminated as patients after they hired an attorney to evaluate whether they had a claim relating to ineffective communication against the hospital where their physician had privileges.


Similarly, this podiatry practice in Northern Virginia learned more about its duties under the ADA and paid a settlement to the complaining patient who enlisted the Department of Justice's help in evaluating whether or not he had received the assistance of a "qualified" interpreter during pre and post surgical visits.

Is it any wonder that the insurance industry has started offering ADA Compliance Insurance?


The ADA and Title VI Are Not Limited to Patients

The US DOJ reached a settlement with Baltimore County, Maryland over its employment practices which allegedly violated the Americans with Disabilities Act (ADA) by "requiring employees to submit to medical examinations and disability-related inquiries without a proper reason, and by excluding applicants from emergency medical technician (EMT) positions because of their diabetes." The County allegedly also retaliated against an individual who objected to the exams. The consent decree settling the DOJ charges required the County to change its policies, implement training of supervisory personnel (with a DOJ approved curriculum), appoint an employee to coordinate activities under the decree as well as pay back pay and accord other relief to individuals affected by the discriminatory polices.


Another similar settlement resolved a "compliance review" with the City of Hubbard, Oregon of its employment practices. Not sure if your organization's policies would pass similar scrutiny? Take a look at the EEOC Guidance linked below.


Meanwhile, a settlement with Florida State University also required the school to make its website accessible for those with disabilities because it uses the web for its job application process. Within 90 days FSU's site must meet the WCAG guidelines for web content accessibility. Does yours?


Also in the headlines - a $975,000 settlement between the EEOC and a hospital in Bakersfield. California of a lawsuit alleging that the hospital failed, in violation of Title VI, to address a hostile workplace for Filipino Americans working at the facility. Allegedly the hospital's "English Only" policy was selectively enforced against those speaking Tagalog and Iolcano, but not those speaking Spanish, and Filipino workers were made fun of for their accents even when speaking English.


And then there was this 2013 settlement with a popular van shuttle service - which forced a blind rider and her service animal to ride in a separate van and pay more for the ride than other riders. The service will be changing its policy and training its staff, independent contractors and franchisees about the ADA.


And a privately owned museum, constructed in 1993, found out just how out of compliance its facility was when the Department of Justice conducted a "compliance review" of this "place of public accommodation". Here's the resulting settlement agreement.


Guidance from the Government:

  • A 2015 video training session on "Communicating Effectively With Limited English PRoficient Individuals"

  • from the Office for Civil Rights, good examples of how Critical Access hospitals in rural areas are Advancing Effective Communication (2013)

  • from the USDA proposed "Guidance" on how to implement an "effective plan" for meeting the needs of Limited English Proficient (LEP) individuals who are entitled to participate in programs - like food stamps - that the agency funds. The USDA's five step model (identify the languages encountered, plan language assistance measures, train, notify beneficiaries of the plan, monitor and update) is straightforward, clear and full of explanatory notes. The Agency even devotes a section to describing its enforcement strategy for the requirements.

  • from the USDOJ a ""technical assistance" document entitled "Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS". Employers, health care providers, other "public accommodations" like restaurants, day care centers, gyms and shopping malls as well as state and local governments will want to review the DOJ examples of what is and what is not discrimination under the ADA.

  • Also from the DOJ - succinct "technical assistance" documents on "Effective Communication" , "Communicating with People Who Are Deaf or Hard of Hearing in Hospital Settings" (2003); "Wheelchairs, Mobility Aids and Other Power-Driven Mobility Devices" (2014)

  • EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (1995)

  • This Department of Health and Human Services video describes assistive and adaptive devices that help employers meet their responsibilities under Section 508 of the Rehabilitation Act.

  • This thought provoking video from the Departments of Justice, Health and Human Services and Agriculture lays out the requirements and consequences of "meaningful access" to federally supported programs for those with limited English proficiency (LEP).

  • from the Office for Civil Rights: a regulation and other materials on Conscience Protections for Health Care Providers; also a Webcast on "Addressing Health Disparities through Civil Rights Compliance and Enforcement" which outlines each of the laws and provides best practice examples.

  • from a settlement in Colorado, a pictogram that can be used to inquire whether a deaf individual requires and interpreter.

  • Good news – the Department of Justice has limited “service animal” accommodations to dogs and miniature horses

  • "Access to Medical Care for Individuals With Mobility Disabilities” (2010) may help physicians avoid the misstep of the one in California who ended up in disability sensitivity training as part of her settlement

  • Want to know how the Office for Civil Rights investigates and resolves complaints? Here's the manual.



Language Access Plans

If you are in the business of judging the compliance of others against these types of standards, you sort of need a plan to make sure that your own operations meet them. The Department of Health and Human Services has a ten element "Language Access Plan" for ensuring access by those with Limited English Proficiency. This master plan is designed to guide the development of agency specific ones - and also provides a good resource for those the Department regulates. Similar plans for other agencies are available at www.lep.gov.

LEP.gov also has maps and an "App" for determining the percentages of LEP individuals living in specific geographic areas.


It's Not "Just" About Compliance

Studies have confirmed what those in health care and other situations already know - when two people don't speak a common language there can be serious consequences. Here are some resources:


Why are these obligations still so challenging?

The City of Pittsburgh may have part of the answer – they surveyed administrators and others within local hospitals and then those in need of interpretation services and other “assistive devices” – guess who thought the hospitals were doing a great job of delivering care to these patients? Learn more about their efforts to get in compliance.

Other Civil Rights Compliance Resources on the Web:


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