The US Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) announced on May 10, 2023, that they had entered into a Voluntary Resolution Agreement with a Florida healthcare provider to resolve a disability discrimination complaint based on Section 504 of the Rehabilitation Act of 1973 and Section 1557 of the Patient Protection and Affordable Care Act. The resolution resolves a complaint filed by an individual who is deaf and hard of hearing, alleging that the healthcare provider failed to provide her with auxiliary aids and services when she requested an interpreter be present for her while she attended her husband’s post-surgical medical appointment as his companion.
OCR enforces Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act, two federal civil rights laws prohibiting discrimination on the basis of disability in programs receiving federal financial assistance. As a result of the investigation, the healthcare provider voluntarily entered the Agreement with OCR and affirmed its compliance with Section 504 and Section 1557. They agreed to take steps to ensure the availability of auxiliary aids and services to patients, companions, and members of the public who are deaf or hard of hearing, including:
- Furnishing appropriate auxiliary aids and services where necessary to ensure that communications with patients, companions, and members of the public who are deaf or hard of hearing are as effective as communications with others;
- Reviewing their policy and any related procedures and provide to OCR any revisions necessary to implement the terms of this agreement and to ensure it is taking any necessary steps to provide effective communication with patients and companions who are deaf or hard of hearing;
- Giving primary consideration to the request of a patient or companion who is deaf or hard of hearing;
- Documenting any assessments conducted for auxiliary aids and services in a patient’s record;
- Creating an auxiliary aid and service denial log; and
- Training all staff regarding the requirement to ensure effective communication with patients and companions who are deaf or hard of hearing, are blind or have low vision, or have a speech disability.
“Ensuring patient safety is at the heart of providing care in a quality and ethical manner. It should not take a federal investigation for a healthcare provider to provide an interpreter so that a patient’s caregiver can understand important information, such as a post treatment plan,” said OCR Director Melanie Fontes Rainer. “We are seeing case after case involving healthcare providers who fail in their responsibility under federal civil rights laws to provide effective communication to patients and their caregivers. This action supports OCR’s efforts to promote community integration by removing barriers to receiving services in the community. OCR will continue to take robust enforcement action until we make it clear that healthcare providers must remove unnecessary barriers and provide equal treatment for those who are deaf or hard of hearing.”
Compliance Perspective
Issue
Failure to provide effective communication for individuals who are deaf or hard of hearing violates Section 504 of the Rehabilitation Act of 1973 and Section 1557 of the Affordable Care Act of 2010, and retaliation is prohibited under each of the civil rights laws that OCR enforces. Collectively, Section 504 and Section 1557 prohibit any entity that receives federal financial assistance from discriminating against qualified individuals with disabilities and requires an entity to take steps to ensure communication with individuals with disabilities is as effective as communication with others through the use of appropriate auxiliary aids and services. For people who are deaf, have hearing loss, or are deaf-blind, this includes providing a qualified notetaker; a qualified sign language interpreter, oral interpreter, cued-speech interpreter, or tactile interpreter; real-time captioning; written materials; or a printed script of a stock speech. A “qualified” interpreter means someone who is able to interpret effectively, accurately, and impartially, both receptively (i.e., understanding what the person with the disability is saying) and expressively (i.e., having the skill needed to convey information back to that person) using any necessary specialized vocabulary.
Discussion Points
- Review your policies and procedures for communicating effectively with residents and their family members or representatives who are hearing, sight, or speech impaired. Also review your policies and procedures for the prevention of discrimination and retaliation. Update as needed.
- Provide training for staff on effective communication techniques for residents and their family members or representatives, including those with hearing, sight, or speech disabilities. Document that these trainings occurred and file each signed document in the employee’s individual education file.
- Periodically survey staff to ensure that they are aware of resources that are available at the facility for residents and their family members or representatives who are hard of hearing or deaf, or who have sight or speech disabilities. In addition, ensure that staff are aware of how to report any concerns of discrimination or retaliation.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
