The US Department of Health and Human Services’ Office for Civil Rights (OCR), in partnership with the US Attorney’s Office for the Eastern District of Michigan (DOJ), announced on March 23, 2023, that it had entered into an agreement with a healthcare provider to resolve an alleged federal civil rights violation. OCR had received a complaint alleging that the provider refused repeated requests to provide the complainant with a sign language interpreter for a preoperative appointment. The complainant further alleged that the provider retaliated against her for requesting an interpreter by cancelling her preoperative appointment and surgery and by terminating her as a patient.
An individual who is deaf and utilizes American Sign Language (ASL), had alleged that the practice failed to furnish appropriate auxiliary aids and services necessary to effectively communicate her. The individual repeatedly requested a qualified ASL interpreter prior to a scheduled pre-surgical appointment, but the provider allegedly refused to take appropriate steps to ensure that its communications with her were effective. The complainant provided documentation showing that after she requested an ASL interpreter, the provider terminated her as a patient.
OCR investigated the allegations in partnership with DOJ, and reviewed the provider’s policies and procedures for effective communication with individuals who are deaf or hard of hearing. As a result of the joint investigation, the provider voluntarily entered an agreement and affirmed its assurance of compliance with Section 504 and Section 1557. Under this Agreement, the provider agreed to:
- Develop effective policies and practices to ensure the availability of auxiliary aids and services
- Develop policies and procedures to ensure non-discrimination and non-retaliation
- Train its staff on the new policies to ensure employees understand the practices and procedures to ensure effective communication with individuals who are deaf or hard of hearing, and non-discrimination and non-retaliation obligations
- Eighteen months of monitoring by OCR and DOJ, during which it will report any complaints from individuals who have disabilities to OCR and DOJ
- Pay the impacted party compensatory relief under Title III of the Americans with Disabilities Act
“Federal civil rights laws are clear that healthcare providers must provide those who are deaf or hard of hearing with appropriate auxiliary aids and services, such as an ASL interpreter, when requested,” said OCR Director Melanie Fontes Rainer. “Providers are required to follow the law and provide care in a manner that is free from discrimination. In this matter, the provider terminated her as a patient because she requested an accommodation—this is unacceptable and will not be tolerated. Ensuring that people with disabilities can access their care equally is critical and today we call on providers around the country to follow the law.”
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, LLC for informational purposes only and is not intended to provide legal advice.*
