CONTRIBUTOR: MOIRA WERTHEIMER, ESQ., RN, CPHRM, FASHRM
Assistant Vice President, Psychiatric and Healthcare Risk Management Group
This year, the American with Disabilities Act (ADA) celebrates 27 years of existence. Signed into law by President George H. W. Bush in 1990 and amended in 2008, the ADA, a federal civil rights law, has provided protection to those with disabilities in employment, transportation, state and local services, public accommodations, telecommunications, and healthcare accessibility. According to the 2010 U.S. census, approximately 19% of the population, or 56.7 million people, have a disability.1
Title III of the ADA applies to places of “public accommodation,” which include physician’s offices located in both buildings and private homes used as offices.2
This article defines “disability” as interpreted by the ADA, briefly reviews the law, highlights important ADA regulatory compliance considerations, and provides risk management tips for the psychiatrist when seeking to align with ADA guidelines regardless of the size of the psychiatrist’s practice.
How is disability defined?
The ADA, defines the term “disability” legally rather than medically. The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity. This includes people who have a record of such an impairment, even if they do not currently have a disability. The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability.3
The ADA includes five sections called “titles” and each “title” refers to a different area of the law. 4
- Title I refers to employers and applies to practices with 15 or more employees on payroll for 20 or more calendar work weeks (which do not need to be consecutive) in either the current or preceding calendar year;
- Title II applies to “public entities” which includes both state and local government departments, agencies or other instrumentalities, such as public hospitals and clinics;
- Title III applies to places of “public accommodations,” which includes health care providers, including physicians’ offices located in buildings as well as those physician offices located in a private home;
- Title IV applies to telecommunication services that must be available to all those with a defined disability; and
- Title V contains miscellaneous provisions that cover retaliation and attorney fees.
Keep in mind that state anti-discrimination laws also apply and if in conflict with federal law, the more stringent law applies.
In 2011, revised ADA regulations took effect and, although not exhaustive, the following revisions under ADA Title III apply to private healthcare practices: effective communication, service animals, wheelchairs and other power driven mobility devices (OPDMDs) and accessibility.5
Psychiatric Office ADA Compliance and Risk Management Considerations
Under the ADA, psychiatrists must communicate effectively with individuals with disabilities as well as with any companions who may also have a disability. The communication must be to the same extent that the psychiatrist regularly communicates with patients or companions without disabilities. Moreover, a psychiatrist may not rely on an individual accompanying the patient with a disability to provide interpreting services except in limited circumstances.
Thus, to ensure “effective communication,” the psychiatrist may need to use “auxiliary aids” to facilitate the communication. The ADA defines “auxiliary aids” and examples include: Video Remote Interpreting (VRI) services, qualified interpreters, assistive listening devices, note takers, written materials, Braille materials, etc.6 Auxiliary aids are effective when they are accessible, timely, and protect privacy and independence. Consider consulting with an attorney or risk management professional to determine permissible auxiliary services.
Risk Management Considerations
- Prior to the first visit, contact the patient to determine the type of auxiliary aid he may need to facilitate communication;
- A patient is not required to bring another person to interpret for him;
- Use a “qualified interpreter” not a family member;
- Utilize an impartial translation service for complex conversations, unless the patient requests his own interpreter. The interpreter should be an individual over the age of 18;
- The person accompanying the patient must be willing and able to interpret;
- Depending on the content of the visit, the psychiatrist may want to also utilize an interpreter in addition to the one furnished by the patient;
- Do not rely upon or utilize children under 18 years of age to translate for their parents;
- If the interpreter is delayed or unavailable, try to use technology that is available, refill medications if appropriate and reschedule the visit as soon as possible to have the more complex conversation;
- The psychiatrist has the final decision as to what resource to utilize as long as the resulting communication is effective; and
- Patients cannot be charged for the services of an interpreter.7
The ADA defines a “service animal” as a dog individually trained to perform work or tasks directly related to the patient’s disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The ADA also considers miniature horses service animals, if trained, to perform tasks directly related to the patient’s disability. Thus, the physician office may need to provide reasonable accommodations as long as the site can accommodate the horse’s size, type, and weight.8
Risk Management Considerations
- The only questions that can be asked about a service animal are:
- Is the animal required due to a disability; and
- What work or task has the animal been trained to perform?
- You cannot ask if the animal is required because of a disability and you cannot ask for proof or identification for the animal;
- The use of service animal must be permitted for a person with a disability unless the animal is out of control or not housebroken;
- Reasonable accommodations must be provided for the service animal during an appointment, for example: a companion can watch the animal while the patient has his/her appointment; and
- Office staff does not have responsibility to watch or care for the animal.9
Note that the ADA does not protect Emotional Support Animals (ESA) or companion animals used primarily for comfort, therapy, and support, unless they are used as support in planes and in some residences that do not normally allow pets. Thus, for air travel, the patient may ask the psychiatrist to provide a prescription letter required by the airline industry. Additionally, in the case of residences, the patient may ask the psychiatrist to sign a Third Party Verification form, as most property managers/landlords require them.10
Wheelchairs and Other Power-Driven Mobility Devices
Wheelchairs and “other power-driven mobility devices” (OPDMD) must be permitted in all areas open to pedestrian use in the office. An OPMD is any mobility device powered by batteries, fuel, or other engines, used by individuals with disabilities as their mobility device of choice, whether designed for use by individuals with disabilities or not (such as a “Segway”).11 Wheelchairs and OPMDs must be permitted unless the psychiatrist can demonstrate that the device cannot be operated in accordance with safety requirements.
Risk Management Considerations
- Neither the psychiatrist nor office staff can inquire about the extent of the patient’s disability;
- It is permissible to ask for credible assurance that the patient requires the mobility device due to a disability; and
- The device must be able to fit the space, have appropriate speed, be safe, and not create serious risk of harm to the general environment or other pedestrian traffic.12
The ADA also regulates architectural features of physician offices in order to ensure that those features do not pose barriers to accessing places of public accommodations. Currently, the ADA requires compliance with the 2010 ADA Standards for all new construction and alterations undertaken on or after March 15, 2012. The 2010 Standards include a “safe harbor” stating that elements, spaces, or facilities built or altered according to the 1991 ADA Standards, do not have to be brought into compliance with 2010 Standards unless the element, space, or facility was altered on or after March 15, 2012.13
Risk Management Considerations
- In an office building setting where the psychiatrist is leasing space, generally, the property owner is responsible for accessibility issues;
- Remove barriers so the patient with a disability may enter the office or home office, hallway and rest room, if “readily achievable:;
- Barrier removal is readily achievable when it is easy to be accomplished without much difficulty or expense. For example: some barriers can be removed by simply rearranging furniture, installing a ramp, making curb cuts, widening a door, or modifying a restroom; and
- If barrier removal is not readily achievable, make other accommodations to see the patient. This may include seeing a patient at an alternate location or at a hospital where the physician has privileges.14
In addition to understanding the ADA requirements, psychiatrists need to ensure that their office staff receives training to properly manage patients with disabilities in accordance with state and federal laws. Employees need to understand which reasonable accommodations the ADA requires and patients are entitled to. Further, office policies and procedures should support equal access and support for patients with disabilities. Train staff at hire and annually thereafter to ensure compliance with current federal and state laws. For further information and assistance, the ADA National Network has 10 regional ADA Centers around the country able to provide local assistance with ADA implementation. The ADA National Network centers are available at https://adata.org/find-your-region.xiv Finally, should you have questions, please consider consulting with an attorney or risk management professional.
1 Americans with Disabilities: 2010 https://www.census.gov/people/disability/publications/sipp2010.html (last accessed 08/24/17)
2 28 CFR, § 36.104 & 28 CFR, § 36.207
3 28 CFR, § 36.104
4 29 CFR, § 1630.2(e)
5 ADA Title II and Title III Regulations Fact Sheets https://adata.org/factsheets_en. (last accessed 08/24/17)
6 ADA Title III Regulation 28 CFR § 36.03
7 ADA Title II and Title III Regulations Fact Sheets https://adata.org/factsheets_en (last accessed 08/24/17)
8 ADA National Network (2014). Service Animals and Emotional Support Animals: Where are they allowed and under what conditions? https://adata.org. (last accessed 08/24/17)
11 ADA National Network (2014). Wheelchairs and Other Power-Driven Mobility Devices.. https://adata.org. (last accessed 08/24/17)
12 American Academy of Family Physicians. Information about the ADA from the AAFP. www.aafp.org/practice-management/regulatory/compliance/ada.html. (last accessed 08/24/17)
13 ADA Title II and Title III Regulations Fact Sheets. https://adata.org/factsheets_en.
14 The ADA National Network: Information, Guidance and Training on the Americans with Disabilities Act. http://adata.org.