The US Department of Health and Human Services (HHS), Office for Civil Rights (OCR), in partnership with the US Attorney’s Office for the Western District of Washington (USAO), entered into an agreement with a healthcare provider to resolve complaints which alleged that the provider’s failure to provide appropriate auxiliary aids and services, such as sign language interpreters or tactile sign language interpreters, for patients who are deaf or hard of hearing, blind or low vision, or both, violated federal civil rights laws — Section 504 of the Rehabilitation Act (Section 504), Section 1557 of the Affordable Care Act (Section 1557), and Title III of the Americans with Disabilities Act of 1990 (ADA) — which protect against discrimination.
The agreement resolved a joint investigation into allegations that the provider failed, multiple times, to provide effective communication to a patient who is deaf and a patient who is both deaf and blind (deaf-blind). The investigation revealed that the provider relied on the spouse of a patient who is deaf-blind to interpret for the patient before and after surgery.
Additionally, the provider relied on the son of a patient who is deaf to interpret before and after the patient’s surgery. The family members were not prepared or qualified to interpret for the patients during this stressful time. Federal civil rights law prohibits the provider from relying on family and companions to provide interpretation unless there is an emergency or the individual with the disability specifically requests it.
Under the agreement, the provider agreed to take the following steps to correct its conduct and comply with Section 504, Section 1557, and the ADA:
- Designate a point person responsible for providing and ensuring appropriate auxiliary aids and services and ensuring the health system has resources, including three interpreter firms, to provide effective communication to patients with communication disabilities.
- Develop policies and practices for assessing and meeting the communication needs of patients who are deaf or deaf-blind.
- Train staff on the new policies for assessing and meeting the communication needs of patients who are deaf or deaf-blind.
- Compensate each impacted patient in the amount of $100,000 and compensate the impacted family members in the amount of $40,000.
- Establish a third-party claims administrator to distribute $2 million in settlement funds to redress harm suffered by patients denied appropriate interpreter services.
- Provide monitoring reports every four months to OCR and the USAO about requests for assistive devices or interpreters and how those needs were met.
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. Healthcare facilities that receive federal funding must provide aids and services when needed to communicate effectively with people who have hearing, sight, or speech disabilities. 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 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 all residents, 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 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, Inc. for informational purposes only and is not intended to provide legal advice.*
