- Have a physical or mental impairment that substantially limits one or more major life activities;
- Have a record of such an impairment; or
- Be regarded as having such impairment.
Barriers After Nearly 30 Years
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“There are a lot of barriers still in existence even though the ADA has been in effect for nearly 30 years,” says Lisa I. Iezzoni, MD, the Mongan Institute Health Policy Center, Massachusetts General Hospital, Boston, and senior author on a recent article on physicians’ knowledge about their obligations under the ADA appearing in Health Affairs. “Many doctors don’t understand who is responsible for making decisions on accommodating patients with disabilities. Because of this, they may break the law.”1
Studies have shown this is a patient care issue. Those with disabilities are a population with significant healthcare disparities. It is the responsibility of every physician to alleviate these concerns. In addition, civil penalties can range up to a maximum of $75,000 for the first offense and up to $150,000 for each subsequent violation. Most complaints are settled for much less money, but even then, with the costs of attorneys and compensation, settlements can run in the tens of thousands of dollars.
Survey Shows Physician Education Needs
Dr. Iezzoni
Dr. Iezzoni and colleagues interviewed 20 physicians in preparation for launching a more comprehensive survey. The protocol called for open-ended questions over the telephone. They addressed issues related to caring for patients with physical or mental health disabilities.
Participants were veteran physicians with a mean number of years in practice of 24.7. Eleven had completed medical school prior to the ADA’s enactment in 1990. Two participants were rheumatologists.
Among the findings: Three physicians indicated they would refuse to see a patient with a disability. Sixteen thought they could not refuse, and one was unsure. None of the physicians stated definitively that patients with disabilities could be required to cover accommodations costs, but eight were not certain.
“Both of these [responses—refusal to see a patient and requiring patients to pay for accommodation] are against the law,” notes Dr. Iezzoni. “But there are still some doctors who don’t know it is illegal.”
Who Is Responsible for Deciding Necessary Accommodations
There were concerns about physician understanding of who is responsible for deciding what accommodations will be available. Thirteen interviewees reported they were confidant they knew who held responsibility. However, when asked to be specific, the responses included the physician, clinical staff, the patient and/or their caregiver. Some viewed it as a collaborative effort, which is often the most productive approach and generally meets ADA requirements.
Four responding physicians reported having some formal training in ADA requirements during their careers. Twelve denied any training, and another was unsure. Of the four who reported receiving formal training, only one, who graduated after 1990, got their instruction in medical school. The others received instruction during continuing medical education functions or other formats within their clinical setting. Six of the responding doctors had graduated from medical school after the ADA’s enactment.
“In a way, this should not be very surprising,” says Dr. Iezzoni. “There is really very little education about the physician’s responsibilities under the ADA in undergraduate medical school, graduate medical education or even continuing medical education.”
Impact on Patient Care
This lack of knowledge has an impact on patients. The Healthy People (HP) 2010 report published by the Centers for Disease Control & Prevention in 2000 was the first time those with disabilities were identified as a population with health disparities.
“That was continued in HP 2020, and I expect it will continue with HP 2030,” Dr. Iezzoni says. “We now have 20 years of the federal government saying people with disabilities experience significant healthcare disparities. But we haven’t put the same focus on that as seen [on] ethnic and racial minorities.”
3 Major Laws
Three major laws are involved: Section 504 of the Rehabilitation Act of 1973, the ADA as amended in 2008 and Section 1557 of the Affordable Care Act (ACA). All three prohibit entities that receive federal funding, such as Medicare or Medicaid, to have programs or activities that discriminate against people with disabilities. They not only outlaw discrimination, but also require an entity to take proactive steps to offer equal opportunity to those with disabilities.
“One law all practices should be aware of is Section 1557 of the ACA,” says Mollie Gelburd, associate director for government affairs at the Medical Group Management Association. “The higher standards in the law require practices now give primary consideration to the type of auxiliary aid requested by an individual with a communications-based disability.”
Ms. Gelburd
Ms. Gelburd notes that before the ACA, if a person wanted an in-person sign language interpreter, all that was required was that a practice consider the individual’s request. There was a lower bar for turning down the request. Now, unless a practice can demonstrate that another equally effective means of fulfilling that request is available or that supplying the requested type of aid would result in an undue burden, the person’s request must be honored.
“What is ‘equally effective’ is an issue the practice’s attorney would have to sort out,” says Ms. Gelburd. “Attorneys are critical here, because they are the ones [who] can tell you what courts have determined this means—especially since the standards under the definitions can change from one jurisdiction to the next.”
Undue Burden on Practices
The other important concept to understand what comprises an “undue burden” on the practice. If you can show the changes in the physical structure of the practice would cause an undue burden, then you can dispute the request and say you can’t accommodate it.
This is another time to talk to your attorney. They can help you work through the law and define what is or, perhaps more importantly, is not an undue burden. This can be a very high bar, especially because you cannot charge the patient extra for providing these services. A $500-an-hour, in-person, sign language interpreter usually comes out of the practice’s pocket.
“It can be very expensive to hire auxiliary services, and [the costs] can exceed the amount of reimbursement,” says Ms. Gelburd. “Basically, it costs money to see these patients, but you still can’t legally refuse to see them or charge them extra. This gets more significant if you make the arrangements and the patient is a no-show.”
One recommendation is to talk to your attorney and get policies and procedures in place long before a situation arises. You may very well never have a hearing- or sight-impaired patient come in. If you do, your practice will be prepared.
“You don’t want to be in a position where you don’t know how to accommodate requests and you don’t know what the rules are,” Ms. Gelburd says. “You don’t want to be struggling to figure out these complex rules in real time.”
Physical Accommodations
Both the tenant and the owner are required to meet ADA standards for architectural concerns, such as handicapped parking and accessibility to waiting rooms and bathrooms.
The need for wide doors for entry to, and egress from, the building and the practice offices are well understood and, to a large extent, have been incorporated into building codes. But it is probably still a good idea to check, especially if your practice is in an older structure.
The interior design of your practice’s offices should be considered.
“Take a look at access to your facility,” says Ann Marslett, practice administrator for Rheumatology Associates of Baltimore. “For example, how easy is it for folks using walkers and wheelchairs to get around? Are the hallways wide enough, and are the exam rooms able to fit both a person in a wheelchair and someone accompanying them?”
Equipment & Staffing Considerations
Ms. Marslett
Equipment is another area practices don’t always think about as having ADA exposure. It is not legally acceptable, for example, to do a physical exam of a patient in their wheelchair. In such cases, an adjustable-height examination table that can be lowered to the appropriate level so your patient can easily transfer to it may be required.
Have you considered the chairs in your waiting and exam rooms? “You should have seats that are wide enough and arms that are strong enough to let a person lift themselves up and out of them,” Ms. Marslett says.
Staff training can also be important. With the increase in obesity and accompanying disabilities, making sure staff have adequate education in safe lifting practices is another access-to-care issue.
“The law requires a reasonable accommodation to the needs of the disabled,” says Ms. Marslett. “This doesn’t mean a special exam table or instruments in every room. Depending on the size of the practice and types of patients, you may only need one room with an accessible exam table to fulfill your requirements under the law.”
Resources Available
The ADA webpage, under the auspices of the U.S. Department of Justice, has a wealth of information on rules, regulations, design standards and technical assistance materials. If your practice has ties to an area hospital, they may have an office that can be of service. Check in with state and national professional organizations to see if they have suggestions or groups that discuss these issues.
Although for the most part, the expenses of compliance with access requirements fall on the practice, some small changes are being made. Billing codes now exist that can be used to offset at least some of the additional time required to see and treat disabled patients. In addition, tax credits in place to reduce the costs of equipment and building changes survived the last round of tax reform. Contact your accountant for more information.
“One of the most critical aspects for administrators is to closely monitor regulations,” says Ms. Marslett. “Make sure when there is an update you assess your practice to see if there are any changes you need to make.”
Kurt Ullman is a freelance writer based in Indiana.
Reference
- Agaronnik ND, Pendo E, Campbell EG, et al. Knowledge of practicing physicians about their legal obligations when caring for patients with disability. Health Aff (Millwood). 2019 Apr;38(4):545–553. doi: 10.1377/hlthaff.2018.05060.
