ADA Implications for the Physician's Office

by Mary Kathleen Evans

A disability can be very isolating, as it can prevent a person from moving freely in society. It can create hurdles to equal educational, employment, and commercial opportunities. To overcome barriers to equality for the disabled, the Americans with Disabilities Act of 1990 (ADA) was passed by Congress and signed by President George Bush on July 26, 1990. (1)

ADA's Title III states: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." Physician's offices are included in the definition of "public accommodations." Therefore, no matter the size or number of employees, a physician's office must be accessible to persons with disabilities. (2)

After the ADA was enacted, there were a number of Supreme Court decisions construing the definition of "disability" restrictively. Congress later thought these decisions and the EEOC's original ADA regulations were not serving to achieve equality for the disabled. Thus, Congress passed the ADA Amendments Act of 2008 (ADAAA), which was signed into law by President George W. Bush on September 25, 2008. (3)

Final regulations implementing the ADAAA were issued by the Equal Opportunity Employment Commission (EEOC) on March 25, 2011. (4) The effect of the ADAAA and EEOC's final regulations is to make it easier for individuals claiming protection under the law to establish that they have disabilities. (5)

WHO IS CONSIDERED DISABLED UNDER THE ADA?

"I treat people for physical or mental problems; are all of my patients considered 'disabled' under the ADA?"

A person is disabled who has a physical or mental impairment that substantially limits one or more major life activities, or has a record of having such impairments. (6) A physical or mental impairment is broadly defined to include any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

When determining whether the disability limits "major life activities," the term "major" shall not be interpreted strictly to create a demanding standard for disability. (7) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others and working are "major life activities." So are the operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. (8)

An impairment need not be permanent; one that is episodic or in remission is still considered a disability if it would substantially limit a major life activity when active. (9) Thus, breast cancer in remission (impairment in the major bodily function of "normal cell growth") may be considered a disability. (10) The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting. (11) Thus people with conditions that interfere with mobility (joint pain, pregnancy, fatigue) or who have temporary activity limitations such as post-surgical restrictions or orthopedic injuries are included.

Likewise, "substantially limits" is not meant to be a demanding standard. (12) The EEOC claims that basic obesity, without any other underlying condition, sufficiently impacts the life activities of bending, walking, digestion, cell growth, etc., to qualify as a disability or perceived disability. (13) Chronic depression that affected eating, sleeping, thought processes, and caused feelings of hopeless and helplessness was considered a disability under the ADA. (14) Stuttering could substantially limit the major life activity of communicating. (15)

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. (16) Thus, asthma and allergies are still considered disabilities under the ADA, even if symptoms are controlled by medication.

Considering the breadth of "who" is a disabled person for whom accommodations must be made under the ADA, what does the ADA require of physicians? In general, the ADA requires reasonable modifications in policies, practices, or procedures that will allow the disabled patient to access the services offered by the physician. These accommodations must be made unless the physician can demonstrate that making the modifications would fundamentally alter the nature of the services rendered. Oftentimes, making such a demonstration to the satisfaction of the EEOC is a difficult burden.

WHAT IS REASONABLE ACCOMODATION?

It is important that a person with a disability receives medical services equal to those received by a person without a disability. For example, if a patient must be lying down to be thoroughly examined, then a wheelchair-bound patient should not be examined in the wheelchair. Instead, accommodations must be made for the patient to be examined lying down. In this example, physical accommodations are required; an adjustable-height examining table is an ideal solution if it is readily achievable to obtain one. A reasonable accommodation might be for a physician to have the trained personnel to transfer a wheelchair-bound patient to a fixed-height bed, to have a padded examination table the height of a wheelchair, or to have physical implements installed in examining rooms or on examination beds that would allow a patient to self-transfer.

Services to a person with a disability must be rendered in the most integrated setting appropriate for the needs of the individual. (17) Thus, a physician cannot schedule all disabled patients at the end of the day. However, a physician can have all his disabled patients seen in a particular exam room, as long as that does not result in the disabled patient waiting longer to see the physician than a non-disabled patient.

WHAT IS THE BEST WAY TO CHOOSE A REASONABLE ACCOMMODATION?

Open communication can be the best ADA compliance tool. The choice of accommodation is best made in consultation with the patient, while the final choice rests with the physician.

For example, a physician is not required by the ADA to acquiesce to a hearing-impaired patient's demand for a live interpreter for each and every patient encounter. Instead, a physician may decide to have a live interpreter for the first encounter with a hearing impaired patient, but that during follow-up encounters, written notes can achieve the communication necessary for the patient's care. The interpreter must be able to interpret effectively and accurately and impartially, both receptively and expressively, using any necessary specialized vocabulary, but does not have to be "certified." A physician is not allowed to require a patient to bring a companion to interpret for the patient, but may rely on a companion for interpretation if the patient so desires. (18) In addition, a physician should not rely on a minor child to interpret for the patient, except in an emergency. (19)

Modifications in a physician's policies can be a required accommodation. For example, a medical office with a strict "no pets allowed" policy must modify the policy by making an exception for service animals used by persons with disabilities, including a hearing dog. Inquiry into the nature of the disability, or requiring "proof" or identification of the person's disability or the animal's training, is prohibited by the ADA. Access may be denied if the animal would compromise health and/or safety standards, such as in an operating room. However, in such a situation, the physician must give the patient the opportunity to be treated without having the service animal on the premises. Note that the physician is not responsible for the care or supervision of a service animal. (20)

The ADA does not require a physician to provide an auxiliary aid or service if it would cause the physician an undue burden or would fundamentally alter the nature of the services normally provided. (21) An undue burden is something that involves significant difficulty or expense, although cost alone is not determinative. (22) It is not considered an undue burden if the cost of the auxiliary aid or service exceeds the amount the physician will receive for treating the patient. The physician may not impose a surcharge on the disabled patient for the provision of any accommodation including auxiliary aids and services. (23) As a practical matter, it may be difficult to show that an auxiliary aid or service would fundamentally alter the nature of the services normally provided by a physician in most cases.

The ADA does not require a physician to provide a disabled patient with personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids. (24)

Physicians must remove architectural and structural communication barriers in existing facilities where readily achievable. Otherwise, they must provide readily achievable alternative measures. Thus, moving a filing cabinet from a hallway that is impeding wheelchair access is a readily achievable accommodation. However, if a support column impedes wheelchair access to a hall, then modifying procedures to allow a wheelchair- bound patient to enter through the physician's private office entrance may be required to achieve the accommodation. Or if no barrier removal options are readily achievable, the physician must provide service through readily achievable alternate methods. For example, a physician could examine a patient at no additional charge at a hospital where the physician had privileges or at the patient's home.

The ADA has extensive technical architectural and structural requirements for accessibility implemented through the ADA Accessibility Guidelines. These include, for instance, specifications for ramps, curbs and steps, door width, elevators, restrooms, etc., which are too extensive to describe in this article. It bears noting, however, that a doctor with an office located in a private home is required to make all areas of the home used by patients accessible to patients who use wheelchairs or other mobility devices if it is readily achievable to do so. (25) As with other public accommodations, barriers at the entrance to the home office, as well as barriers to approaches, restrooms, and hallways, must be removed if readily achievable.

ARE INDIVIDUALS OTHER THAN PATIENTS ALSO PROTECTED BY THE ADA?

Yes, the physician's obligations under the ADA may apply to non-patients. For example, if a parent who is blind is required to grant consent for his or her child's surgery, the consent form must be communicated effectively to the blind parent. In most cases, this can be accomplished by reading the consent form or by providing the form in Braille or on audio recording.

CAN A PHYSICIAN REFER A DISABLED PERSON TO ANOTHER DOCTOR?

A physician can refer a patient with a disability to another doctor, if the treatment sought is outside the physician's area of specialty and he would have made a similar referral if a non-disabled person sought the same services. (26) So a physician who exclusively treats burn patients may refer an individual who is not seeking burn treatments to another provider. But, that same doctor cannot refuse to treat a patient who is seeking burn treatment because that patient is HIV-positive.

PRACTICE ELIGIBILITY REQUIREMENTS ARE PROHIBITED
A physician practice cannot set up eligibility requirements that operate to screen out persons with disabilities. (27) Thus, having a policy that requires patients who pay by check to show a driver's license could be interpreted as screening out the visually impaired. Even setting up special times to see disabled patients (i.e., at the end of the day) could be considered to be a failure to modify practices and procedures to accommodate the disabled, because it is not equal access. (28)

WHAT IF THE DISABLED PERSON IS A DIRECT THREAT TO OTHER PATIENTS?

If a physician has determined that a disabled person represents a direct threat to the health and safety of others, the physician may decide not to treat that person. However, such a determination must be based on an individualized assessment — using reasonable judgment that relies on current medical knowledge or on objective evidence — that the physician cannot eliminate the risk without reasonable accommodations. (29)

WRITTEN POLICIES AND STAFF EDUCATION

"I've received a complaint from the TMB that I refused to make an appointment for a patient with a disability because I did not have the right equipment in my office. I've never spoken to or treated this person who made the complaint."

Oftentimes, a physician is not personally apprised of a patient's disability or request for accommodation; instead the patient or prospective patient tells the physician's staff. For this reason, a physician should have written policies to address how the staff should handle disabled patients and their requests for accommodations. The physician should educate employees about how to handle requests for accommodations, and require the staff to apprise the physician of any such requests, because the physician needs to make the ultimate decision as it is the physician who will be held accountable for it.

CONCLUSION

The breadth of the ADA's definition of who is disabled leads the physician to a best practice of assuming the disability claimed and providing a reasonable accommodation. Open dialogue between the patient, the physician's staff, and the physician is the most likely path to achieving parity for the disabled and protecting the physician from untoward scrutiny.

SOURCES

1. 42 U.S.C. §112101 et seq.
2. 42 USC 12182(b)(2)(A)(iv).
3. 42 U.S.C. §12101, et seq.
4. 76 Fed. Reg. 16978—17,017 (Mar. 25, 2011).
5. 76 Fed. Reg. 17,000
6. 29 CFR 1630
7. 29 CFR 1630.2(h)(2)
8. 29 CFR 1630.2(h)(2)(i)
9. 29 CFR 1630.2(j)(1)(vi)
10. Katz v. Adecco USA, Inc., 2012 WL 78156 (S.D.N.Y. Jan. 10, 2012)
11. 29 CFR 1630.2(j)(1)(ix)
12. 29 CFR 1630.2(j)
13. EEOC v. Resources for Human Development (E.D. LA.2010)
14. Estate of Murray v. UHS of Fairmount, Inc., 2011 WL 5449364 (E.D. Pa. Nov. 10, 2011)
15. Medvic v. Compass Sign Co., LLC, 2011 WL 3513499 (E.D. Pa. Aug. 10, 2011)
16. 29 CFR 1630.2(j)(1)(vi).
17. 28 CFR 36.203
18. 28 CFR 36.303(c )(2)
19. 28 CFR 36.303(c )(4)
20. 28 CFR 36.302(c )
21. 28 CFR 36.303
22. 28 CFR 36.104
23. 28 CFR 36.301(c)
24. 28 CFR 36.306
25. 28 CFR 36.207
26. 28 CFR 36.302(b)
27. 28 CFR 36.301(a)
28. 28 CFR 36.302(a)
29. CFR 36.208

Mary Kathleen Evans is a partner with Luccia & Evans, LLP, in Houston, Texas. She can be reached at mkevans@luccia-evans.com.