ADA: Patient Accommodations

AMERICANS WITH DISABILITIES ACT: PATIENT ACCOMMODATIONS ARE MANDATED IN THE PHYSICIAN OFFICE

Most physicians know that they have compliance requirements under the Americans with Disabilities Act (ADA), but their knowledge of the details is often less than clear.  Nonetheless, under the Americans with Disabilities Act (ADA), the physician office is a “place of public accommodation.” This designation brings with it a number of general requirements, plus some additional specifications applicable in a doctor’s office.

Physician offices must provide a number of assistive devices and services, as well as structural modifications and accommodative equipment, for patients with many different types of disabilities.  This article will review requirements for structural and assistive ADA accommodations, as they uniquely apply to the physician office.

The Americans With Disabilities Act and Public Accommodations – Applicability

The Americans with Disabilities Act (ADA) is a broad civil rights law that was enacted in 1990. It prohibits discrimination based on disability, including discrimination in public accommodations.

ADA regulations include the “professional office of a health care provider” as a “place of public accommodation.” The law leaves no room for interpretation here — for example, no exclusion is made for small offices — so as an owner and operator of a physician office, you must comply with the ADA.

What If I Don’t Own My Office? Or What If My Office Is Located In My Home? 

A frequent initial question is whether a tenant doctor who leases space is responsible for ADA compliance. The law deems both the landlord and tenant to be operating places of public accommodations, so both have full responsibility for complying with all ADA accessibility requirements.

As a tenant doctor, you may allocate in your lease the responsibility for ADA compliance to the landlord, but even if you do, you are still liable to your patients for ADA violations.  In other words, if your lease requires the landlord to complete all ADA accessibility requirements, but IF the landlord fails in doing so and a patient were to file an ADA complaint against you, your lease will not be a defense as between you and the government. In that case, you would need to make the required structural changes; however, you could then pursue reimbursement from the landlord for any costs you incur. For that reason, it is advisable to negotiate the lease to make the landlord responsible, but be aware you are still legally obligated to your patients (and the federal government) to make certain your office is accessible.

The ADA also applies when a place of public accommodation is located in a home. If you use portions of your home as a physician office, those portions must comply with the ADA, even if they are also used for residential purposes. Required compliance also includes an accessible route from the sidewalk, through the doorway, through the hallway, and other portions of the home, such as restrooms, used by your patients.

Definition Of “Individual With Disability”

Public accommodations are obligated not to discriminate against persons who are considered disabled, as defined by the ADA. This means you need to make accommodations for any person who comes within this definition. Such individuals have physical or mental impairments that substantially limit one or more major life activities. Major life activities include caring for one’s self, walking, talking, seeing, hearing, performing manual tasks, breathing, learning, and working.

Some examples of qualifying physical or mental conditions include orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV disease, tuberculosis, and alcoholism. Mental impairments include mental or psychological disorders, such as intellectual developmental delay, organic brain syndrome, emotional or mental illness, and specific learning disabilities. What about drug addiction? The ADA prohibits discrimination against drug addicts based solely on the fact that they previously illegally used controlled substances. However, a public accommodation may refuse to provide services to a person who is currently engaged in the illegal use of drugs.

General Accessibility Requirements

The general rule is that any place of public accommodation, including the physician office, may not prohibit persons with disabilities from enjoying “full and equal access” to health care services. This means that facility structures, as well as policies, practices, and procedures that would operate to screen out disabled persons, must be “reasonably modified” to avoid discrimination unless the modifications would fundamentally alter the nature of the services. 

These modifications may take the form of structural alterations, or they may require you to provide auxiliary devices and services to your patients. Additionally, although modification may result in an additional cost to the office, the office may not pass on the cost in the form of a surcharge only on individuals with disabilities.  However, you may be entitled to some tax credits (possibly 50% and up to $5,000) or deductions to offset expenses incurred in complying with the ADA – see Section 44 of the Internal Revenue Code or consult your tax professional.

The ADA sets requirements for new construction and alterations to existing buildings and facilities, including health care facilities. In addition, all buildings, even those that were built before the ADA went into effect in 1993 and for which no new construction or alteration occurs, must remove certain barriers. Therefore, all public buildings are subject to some ADA requirements.

Physical Barriers In Buildings Occupied Before 1993

All buildings, including those first occupied before 1993, are required to remove “architectural barriers,” when the removal is “readily achievable,” or easily accomplished without much difficulty or expense. Architectural barriers are physical elements of a facility that prevent access to persons with disabilities.

The terminology of “removing barriers” may be a little confusing, because it can refer to either actual removal of a barrier or a structural correction that modifies what would otherwise be an impediment to access by a disabled person. Therefore, the terms “barriers” and “barrier removal” are used in the generic sense to encompass both removal and modification.

The difficulty in interpreting government standards for existing structures is that they will vary depending on the facts of each case, so it is difficult to provide a standard list of requirements. However, the government has provided the following factors to consider in determining whether barrier removal is “readily achievable:”

1. The nature and cost of the action;
2. The overall financial resources of the site or sites involved; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on the operation of the site;
3. The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
4. If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
5. If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

(Note: please do not assume that your status as a single physician, one employee office will exclude you from needing to make these readily achievable accommodations. These are only “factors” in the determination, and more than one tribunal has ruled against the physician in cases in which these factors were considered. See the section below regarding the 2008 New Jersey court case.)

The government has provided a list of specific barriers that may be “readily achievable” to remove in an existing building. However, this list is provided with the caveat that determinations are made on a case-by-case basis, and there is no “one-size-fits-all” answer. Some of those general facility barriers that may be easily removed in a physician office include: installing ramps; making curb cuts in sidewalks and entrances; rearranging furniture; adding raised markings on elevator control buttons; widening doors; installing offset hinges to widen doorways; installing accessible door hardware; installing grab bars in toilet stalls; rearranging toilet partitions to increase maneuvering space; insulating lavatory pipes under sinks to prevent burns; installing a raised toilet seat; installing a full-length bathroom mirror; repositioning the paper towel dispenser in a bathroom; creating designated accessible parking spaces; installing an accessible paper cup dispenser at an existing inaccessible water fountain; or removing high pile, low-density carpeting.

New Construction and Alterations

It is important to determine whether your office is considered “new construction” or the subject of “alteration” within the definition of the ADA, because more requirements will apply to these facilities than to structures occupied before the effective date of the ADA in 1993. “New construction” is any facility first occupied after January 26, 1993.

Newly constructed places of public accommodation must be readily accessible to and usable by individuals with disabilities to the extent that it is not structurally impracticable. This means that facilities must be built to strictly comply with the Americans with Disabilities Act Accessibility Guidelines (ADAAG), which can be foundhttps://www.access-board.gov/adaag-1991-2002.html#4.1 In contrast to buildings occupied before January 26, 1993, new construction must meet these guidelines, regardless of cost.

An alteration is any change that affects usability, including remodeling, renovation, rearrangement of structural parts, and changes or rearrangement of walls and full-height partitions. If an alteration of public accommodation is commenced after January 26, 1992, that alteration must be readily accessible to persons with disabilities in accordance with the ADAAG to the “maximum extent feasible.” These standards apply only to the portion of the office being to you if you remodel your office in a way that affects usability. Normal maintenance, including painting, re-roofing, painting, wallpapering, asbestos removal and changes to existing electrical and mechanical systems are generally not considered alterations.

What is compliance with the ADAAG to the “maximum extent feasible”? It is possible that the structure of a facility makes it impossible to comply with the standards for a particular portion. For example, if widening a door would require the removal of a structural beam, that alteration is not technically feasible. However, if the only problem is an increased cost, it does not relieve you of complying. In addition, all other alterations must comply with the ADAAG.

If a building was occupied before January 26, 1993, it is not covered by the new construction or alteration requirements; however, the architectural barrier removal requirements as explained in the previous section apply.

Specific Requirements In the Physician Office: Accessibility In the Examination Room

The federal government has provided guidelines for features that are required to make all existing physician offices accessible, including an accessible examination room that makes it possible for patients who use wheelchairs to receive appropriate medical care. The room must be designed to allow the patient to enter and move around in the examination room, and to utilize the equipment provided. The government has listed the following features that make this possible:

• An accessible route to and through the room;
• An entry door with adequate clear width, maneuvering clearance, and accessible hardware;
• Adjustment and examination tables and other exam room equipment should meet the requirements of the ADA’s requirements for Accessible Medical Equipment.  (Many chiropractic offices have examination tables that may meet requirements because they are height adjustable.); and
• Adequate clear floor space inside the room for side transfers and use of lift equipment.

New and altered examination rooms must meet more specific requirements of the ADA Standards for Accessible Design that can be found here. Although all of the standards are too numerous to recite in this article, in the physician office they include the actual measurements for door opening width, the amount of clear floor space next to examination tables, the amount of turning space for a wheelchair, etc. If you contemplate building or altering your exam rooms, you must comply with these specifications, and you should include them in your construction contracts. 

Additionally, the ADA authorizes the Department of Justice to certify that certain state laws and local building codes meet ADA accessibility requirements. If you plan to construct or alter your office building, it is a good idea to check whether the applicable codes have been ADA certified by the Department of Justice. If your architect follows a certified state or local code, there is a greater chance that you could successfully defend any subsequent ADA claim based on structural accessibility.

Whether in an existing office or new or altered construction, the number of required accessible examination rooms depends on the size of the practice, the patient population, and other factors. One such room is probably sufficient in a small practice, while more will likely be necessary for a large clinic.

Health Care Provider Office Must Have An Elevator

For multistory buildings, elevators are the most common way to provide access. Although the ADA generally does not require elevators for buildings under three stories, the professional offices of a health care provider are not included in this exemption. Therefore, all buildings that house offices of health care providers on upper floors must have an elevator. If your office is located on the first floor, an elevator is not required.

Auxiliary Aids and Services

In addition to the ADA’s structural facility requirements, a physician office also must provide auxiliary aids and services that are necessary to ensure equal access to the doctor’s facilities and services. The government has said that medical offices must provide appropriate aids where they are necessary to ensure effective communication. Regulators recommend that physicians consult with disabled patients to determine what type of aid is needed to make communication effective. It is not acceptable to require the patient to bring along his or her own person or aid. The decision as to what to provide for effective communication is ultimately the doctor’s, but the patient may challenge the decision by filing litigation or a complaint with the Department of Justice.

Any number of auxiliary aids may be requested by patients who are hearing impaired, vision impaired or speech impaired. Examples of auxiliary aids and services for individuals who are deaf or hard of hearing include qualified sign language interpreters, note-takers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD’s), videotext displays, and exchange of written notes.

Examples of aids for individuals with vision impairments include qualified readers, taped texts, audio recordings, Brailled materials, large print materials, and assistance in locating items. Examples for individuals with speech impairments include TDD’s, computer terminals, speech synthesizers, and communication boards.

What If the Cost Will Exceed My Fee?

If it seems unrealistic that a small physician office would be required to provide such specialized assistance, consider the 2008 New Jersey court case in which a jury awarded a deaf patient $400,000 (half of which comprised punitive damages) against a medical doctor for allegedly refusing to pay for a sign language interpreter. The patient claimed she asked the doctor on many occasions to provide a sign language interpreter. The doctor responded that, as a solo practitioner, he could not afford the $150 to $200 per visit fee, especially when Medicare only reimbursed him $49 per visit. Instead, the doctor exchanged notes with the patient.

The patient sued the doctor under the ADA, alleging she never had any real understanding of her diagnosis or the risks and benefits of her medication, due to the doctor’s refusal to provide a sign language interpreter. The jury agreed and found the doctor had discriminated against the patient under the ADA by failing to provide an effective method of communication with her.

In another 2008 case, a West Virginia primary care practice paid a $5,000 fine to the government for failing to provide a sign language interpreter or other aids to its patients.

These cases technically do not serve as legal precedent because they were ultimately settled, but they are cautionary tales to be heeded. Although the ADA does not explicitly state which aid must be provided in each situation, the law’s spirit and intent clearly weigh in favor of the disabled patient. The fact that the cost to the physician may exceed the fee for the individual visit is not usually a successful defense, because the court will look to the overall resources of the physician as recommended by government regulators. 

The determination is made not by weighing the cost of the aid against the fee for the particular visit, but by the relative ability of the physician to provide the aid in the context of his overall income. As to what constitutes a “qualified” interpreter, the key question is whether the interpreter is able to effectively receive and express language to the patient. The interpreter need not be certified to meet this requirement, but it is probably good practice for the physician office to use a certified interpreter in order to maximize the possibility of promoting effective communication.

Enforcement: Penalties For Non-Compliance

The ADA creates two possible avenues for enforcement for failure to comply with public accommodation requirements. The first is a private lawsuit by an individual who alleges that the operator of a place of public accommodation (including a physician) has violated the ADA. In these cases, the court may order that the owner-operator take corrective action – for example, removal of a barrier or provision of auxiliary aid.

The second option for enforcement is a lawsuit filed by the Attorney General, when the Attorney General has reason to believe a person or group of persons is engaged in a pattern of violations of the ADA, or where such discrimination raises an issued of general public importance. In these cases, the court has the same ability as in a private lawsuit to order corrective action, but in addition, the court may impose a civil penalty of up to $96,384 for a first offense and award a money judgment to an individual claimant. In addition, the prevailing party in any ADA case may recover attorney’s fees from the other party.

Many of our doctors may be very surprised to learn about their responsibilities as operators of places of public accommodation under the ADA. The Act, clearly a well-intended and commendable initiative, has not been without controversy. Some small business owners believe it places a disproportionate and costly burden on them. Regardless of your opinion, however, physician offices are places of public accommodation. Knowing what that designation requires and taking appropriate action to comply will best serve both you and your patients in the long run.

Editor’s Note: Additionally, the ADA requires website accessibility, which is discussed in the ICS article here: https://ilchiro.org/does-your-website-comply-with-the-ada/

The ADA also addresses employment discrimination, which is not covered in this article. In general, employers with 15 or more employees must comply with ADA employment discrimination laws. For further information regarding employment, see the federal government’s website at www.ada.gov.