THE ADA AND THE MEDICAL COMMUNITY:

Here are twenty three examples of cases where the Department of Justice has settled ADA claims with medical care providers.  

Background

The ADA, provides: 

“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.” 42 U.S.C. § 12181 et seq. 

Discrimination includes: “…a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services…” The ADA definition of “auxiliary aids and services” includes “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments.”

Title III of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. § 12181 et seq.  places the responsibility on the health care provider to communicate with people with hearing disabilities in an equally effective manner as they communicate with people without hearing disabilities. To meet this obligation, health care providers must provide auxiliary aids and services unless doing so would cause an undue burden to the facility or fundamentally alter the service being provided. Although handwritten notes or typed text can be an appropriate auxiliary aid for simple communications, in complex health care-related communications, a qualified sign language interpreter may be required. The individual with a disability cannot be charged extra for the cost of an interpreter or other auxiliary aid.

Reported settlements between medical care providers and the DOJ.

1.     This matter is based on a complaint sent to the United States Attorney’s Office alleging that Dr. Mukkamala discriminated against him on the basis of his disability in violation of title III of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. § 12181 et seq.  Specifically, Complainant, who is deaf, alleges that Dr. Mukkamala failed to provide a sign language interpreter when requested.  Complainant alleges a sign language interpreter was needed to allow for effective communication and to afford him the equal opportunity to participate in the medical care of his minor child.

2. This matter is based on a complaint received by the United States Attorney’s Office alleging that Dr. Pervez discriminated against a patient on the basis of her disability in violation of title III of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. § 12181 et seq.  Specifically, Complainant, who is deaf, alleges that Dr. Pervez failed to provide a sign language interpreter when she requested one for an appointment.  Complainant alleges a sign language interpreter was needed to allow for effective communication and to afford her the opportunity to derive the same benefits from the appointment as other individuals who are not deaf or hard of hearing. 
3. V.P., an 83 year-old, suffered a fractured leg and stayed at FNC from May 20 through July 14, 2014, for physical rehabilitation of her fractured leg.  V.P. also suffered from multiple complex medical issues, including dementia, breast cancer, and chronic kidney disease. V.P.’s admission for her stay was arranged in conjunction with V.P.’s sister, who is not hearing impaired and who was identified as her financial conservator and is listed in FNC’s admission records as V.P.’s “responsible party”.  During V.P.’s stay at FNC, B.D. and D.D. visited with her on multiple occasions.  B.D. is V.P.’s daughter.  D.D. is V.P.’s granddaughter.  Both B.D. and D.D. use American Sign Language (“ASL”) as their primary means of communication.  B.D. alleges that she moved her mother to FNC, which is the closest skilled nursing facility to her residence, from Winchester, Virginia so that she could better support her during this difficult time in V.P.’s life.  B.D. further alleges that she was kept in the dark about V.P.’s medical condition and progress because FNC failed to furnish qualified ASL interpreters in response to her express requests for such interpreters.  Complainants allege that on multiple occasions, they both requested an ASL interpreter so they could communicate with the FNC’s staff about V.P.’s medical condition.
4. This matter was initiated by a complaint filed with DOJ alleging violations of Title III of the ADA and its implementing regulation.  Specifically, the Complainant alleged that SFHMC failed to provide auxiliary aids and services when necessary to ensure effective communication with him during multiple admissions to SFHMC for medical treatment between September 30, 2010 and March 9, 2011. In cooperation with DOJ, HHS initiated a compliance review of SFHMC with regard to SFHMC’s policies and procedures for ensuring effective communication with individuals who are deaf or hard of hearing to determine SFHMC’s compliance with Section 504. The Complainant utilizes American Sign Language (“ASL”) as his primary means of communication.  He is an individual with a disability within the meaning of the Title III of the ADA, 42 U.S.C. § 12102(1), and Section 504, at 29 U.S.C. § 705(20)(B).
5. This matter was initiated by a complaint filed with the United States against St. James, alleging violations of title III of the Americans with Disabilities Act (ADA), 42 U.S.C.  §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36.  Specifically, the Complainant, who is deaf, (the “Complainant”) alleged that St James failed to provide sign language interpretive services when necessary to ensure effective communication.  Complainant uses sign language as her primary means of communication. Complainant, who is a resident of Florida but was visiting relatives in the Chicago area, was admitted as a patient at the Chicago Heights hospital (Chicago Heights) in September 2011.  During her four day stay, she received numerous tests and was seen by various doctors.  Complainant alleges that on multiple occasions, she requested, but was not provided, a sign language interpreter so she could communicate with Chicago Heights’ medical personnel about her condition.
6. The investigation was opened in response to complaints raised by Complainant, J.P., who is deaf and uses American Sign Language (“ASL”) as her primary means of communication.  Complainant is the parent of a 13 year-old boy (“J.P.’s son”), who was a patient at the Hospital on at least two occasions: April 30, 2013, and October 3, 2013.  Complainant alleged that Swedish Edmonds failed to provide qualified sign language interpretive services when necessary to ensure effective communication during interactions with medical staff related to treatment for her minor son during the April 30, 2013 Hospital visit. Complainant alleges that on April 30, 2013, she was unable to communicate adequately with Hospital personnel during the course of her son’s treatment for a fainting episode that resulted in significant injury to his jaw.  His treatment included, among other things, a pediatric transthoracic echocardiogram, blood withdrawal, x-rays, and prescription of pain medicine.  The Hospital did not provide J.P. with a qualified ASL interpreter at the time of her son’s admission or at any point during his treatment or discharge.  Instead, Complainant alleges she was forced to rely upon a non-medically knowledgeable ASL interpreter who accompanied her to the Hospital from her son’s school.   According to the Complainant, she was unable to communicate effectively with Hospital personnel as a result.
7. This matter was initiated by a complaint filed with the United States against AFAC, alleging violations of title III of the Americans with Disabilities Act of 1990, as amended (the “ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36. Specifically, Complainant K.B. (the “Complainant”), who is deaf, alleged that AFAC personnel failed to provide sign language interpretive services during multiple medical appointments, including pre- and post-surgery and provided an individual who is not a qualified interpreter during other medical appointments. Complainant further alleges that a qualified interpreter was necessary in order to ensure effective communication. Complainant K.B. is deaf and uses sign language as her primary means of communication. K.B. needed the services of a podiatrist, including foot surgery.
8. Susan and James Liese were Dr. Brown’s patients for approximately four years at PCTC, although James Liese had not been seen as a patient since 2007.  They were terminated as patients by Dr. Brown in May 2009 after they retained an attorney to evaluate possible claims of ineffective communication at the Indian River Medical Center, a hospital at which Dr. Brown had staff privileges, as well as potential claims against two individual physicians.  Those potential claims were related to the hospitalization and surgery performed on Susan Liese at IRMC on November 29, 2007. 
9.  Susan Liese and James Liese are deaf and communicate in American Sign Language and both are individuals with a disability under Title III of the ADA, 42 U.S.C. §§ 12102, 12182(b); 28 C.F.R. 36.104.  However, both Susan Liese and James Liese have obtained medical care and treatment prior and subsequent to the November 2007 admission to IRMC without requesting or obtaining the services of a sign language interpreter. 
10. In its Amended Complaint filed herein, the United States alleges that in 2007, Susan Liese  had emergency surgery at IRMC to remove her gallbladder and no sign language interpreter or interpreting services were provided (DE 17).  Further, the United States alleges that, in May 2009, Defendants learned that Susan and James Liese intended to sue IRMC for lack of effective communication during her gallbladder hospitalization, although the specific nature of those claims was unknown to the Defendants in May 2009.  The United States further alleges that Defendants terminated Susan Liese and James Liese as patients because the Lieses intended to sue IRMC for lack of effective communication, as alleged to be required under the ADA. 
11. The United States also alleges that Defendants unlawfully terminated Susan and James Liese as patients because they were engaged in protected activities.  Specifically, the United States alleges that Defendants retaliated in violation of 42 U.S.C. § 12203(a) against Mr. and Mrs. Liese because they asserted their rights under the ADA and Rehabilitation Act of 1973 by pursuing litigation against IRMC for its alleged failure to provide effective communication.  The United States alleges that by terminating them as patients, Defendants coerced, intimidated, threatened and/or, interfered with, Susan and James Liese in their exercise and enjoyment of, and on account of their exercising and enjoying their rights granted and protected by the ADA in violation of 42 U.S.C. § 12203(b).  The United States alleges that as a direct and proximate result of the Defendants’ conduct in violation of 42 U.S.C. § 12203(a) and (b), Susan and James Liese sustained damages, were harmed, and are aggrieved persons. The Defendants deny these allegations.  Specifically, Defendants dispute whether or not Susan and James Liese requested such an interpreter from the hospital during the November 2007 admission.  The Defendants further allege that Mrs. Liese did not ask Dr. Brown’s partner, Dr. Guy Ulrich, for an interpreter when he admitted her to the hospital on November 28, 2007, nor did she ask Dr. Brown for an interpreter when he cleared her for surgery the following day.  The Defendants also allege that neither Susan nor James Liese requested a sign language interpreter from the Emergency Room physician who initially evaluated Susan Liese, nor from the surgeon or anesthesiologist involved in the surgery itself.  They also dispute any allegations that the IRMC nursing staff was asked to provide such an interpreter.
12. Further, Dr. Brown and PCTC allege that Mr. and Mrs. Liese were terminated as patients as a result of trust issues that jeopardized the continuation of the physician/patient relationship.  Those issues included alleged concerns associated with the possible pursuit of a common law claim for lack of informed consent against IRMC, as well as common law tort claims against Dr. Perry, the surgeon, and Dr. Ortega, the anesthesiologist, unrelated to any ADA claims.  The issues also included trust concerns arising from the failure of Mrs. Liese to raise any communication issues or need for a sign language interpreter with Dr. Brown the morning he cleared her for surgery, and the continuing failure to raise those issues or any related concerns with Dr. Brown over the next one and a half years when she saw Dr. Brown periodically as an office patient. The Defendants further dispute that Mr. and Mrs. Liese were impaired in their ability to exercise and enjoy any protected rights, or that they were harmed or are aggrieved persons.  In addition, they dispute any claims that Susan or James Liese were damaged as a result of the termination since they were relocating to Palm Beach County in July of 2009, and James Liese had not seen Dr. Brown as a patient since 2007.
13. This matter was initiated by a complaint filed with the United States against Dr. Wade Han and the Practice, alleging violations of Title III of the ADA, 42 U.S.C. § 12181-12189, and its implementing regulation, 28 C.F.R. Part 36. Specifically, the Complainant, who is deaf, alleged that, in January of 2013, in an attempt to schedule a new patient appointment with Dr. Han and the Practice, his request for a sign language interpreter, which was necessary for effective communication, was denied. Although Dr. Han and the Practice disputes these allegations and denies that it failed to comply with any requirements of Title III of the ADA or any other legal requirement, Dr. Han has admitted that his staff was not trained properly and failed to follow office policy. Complainant is a person who is deaf and relies upon American Sign Language as his primary means of communication. Complainant is an individual with a disability within the meaning of the ADA. 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
14. Complainant S.K. is deaf and uses American Sign Language (“ASL”) as his primary means of communication. S.K. was in a motorcycle accident and resided at CHRC for 27 days, from November 18 through December 15, 2011 for physical rehabilitation. Complainant S.K. was accompanied by two companions throughout his stay at CHRC. Complainant K.A., who is deaf, is S.K.’s Mother and was with S.K. during his 27 day stay at CHRC, where she slept on a couch in his room. As S.K.’s Mother, K.A. has a known relationship or association with an individual with a disability. 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205. S.K.’s sister, M.K., who is deaf, was with S.K. for most of the time he resided at CHRC, and as S.K.’s sister she has a known relationship or association with an individual with a disability. 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205.
15. Complainants allege that on multiple occasions, Complainants requested an ASL interpreter so they could communicate with the CHRC’s clinical staff about S.K.’s medical condition and treatment options, including during a battery of assessments conducted by CHRC’s clinical staff, physical therapy appointments, and discharge planning. Complainants further allege that their requests were denied on each occasion. Complainant S.K. alleges that a physician providing services to S.K. while he was at CHRC placed a pen in S.K.’s broken right hand and asked him to communicate in writing. Further, Complainants K.A. and M.K. allege that CHRC’s staff enlisted them to facilitate communication with S.K. by asking them to translate his ASL signs into written words.
16. The Complainants allege that they were unable to communicate adequately with Hospital Personnel while their adult son, D.L., was receiving medical treatment at the Hospital. From September 30, 2010, through November 24, 2010, D.L. was enrolled in an inpatient treatment program at the Hospital, and from November 29, 2010, to December 15, 2010, D.L. was enrolled in an outpatient treatment program. The Hospital did not provide V.L. and N.C. interpreters at the time of D.L.’s admission, during visiting hours while D.L. was an inpatient, or at one family meeting while D.L. was an outpatient. Complainants allege that during this one family meeting in which he was the topic of discussion, the Hospital utilized D.L. to act as a communication facilitator after the scheduled interpreter failed to appear. Complainants dispute the Hospital’s contention that an offer to reschedule the meeting with an interpreter was made at that time. According to the Complainants, V.L. and N.C., they were unable to communicate effectively with Hospital personnel on these occasions.
17. The United States investigated the complaint and made the following findings: In late May of 2012, the Complainant, through a relay service, called the Heart Center for an appointment with Dr. Khan.  The Complainant advised that he was deaf and would need a sign language interpreter to provide interpreter services during his appointment.  The Heart Center advised that Complainant that it was his responsibility to make arrangements for a sign language interpreter.  Thereafter, the Complainant, with the assistance of the Disability Law and Advocacy Center of Tennessee, attempted to convince the Heart Center of its responsibility to provide the means for effective communication with the Complainant without success.  Furthermore, the Heart Center advised the Disability Law and Advocacy Center that it did not understand that it was responsible for paying the fee of any sign language interpreter.  When it became apparent that the Heart Center would not provide a sign language interpreter, the Complainant cancelled his appointment.

18.  The complaint was filed by Benny Warden, on behalf of his father, Melvin Warden, who is deaf. The complaint alleges that Burke Health and Rehabilitation Center violated Title III of the ADA, 42 U.S.C. §§12181 – 12189, and its implementing regulation, 28 C.F.R. Part 36. Melvin Warden utilizes American Sign Language ("ASL") as his primary means of communication and he is an individual with a disability within the meaning of the ADA.  42 U.S.C. § 12102(1)(A); 28 C.F.R. § 36.104. The complainant alleges that his father sought admission to Burke Health and Rehabilitation Center and requested a sign language interpreter with strong ASL Skills.  A request was made on behalf of the father via the Allscripts/Ecin system. Burke Health and Rehabilitation Center's electronic response stated in relevant part that they had alternative forms of written communication and communication boards, but did not have an on-site ASL interpreter.

19.   March, 2013 the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) reached a settlement agreement with Genesis HealthCare, one of the nation’s largest providers of senior care with over 400 facilities, to provide sign language interpreters and other means of effective communication to individuals who are deaf or hard of hearing. OCR Director Leon Rodriguez noted “My office continues its enforcement activities and work with providers, particularly large health care systems like Genesis, to make certain that compliance with nondiscrimination laws is a system wide obligation.”

20.   In the Monadnock Community Hospital settlement, the complainant went to the emergency department at the hospital for treatment for an allergic reaction that caused her to have difficulty breathing. Upon entering the hospital she requested a sign language interpreter by presenting an Emergency Interpreter Referral Card.  Despite this request, hospital staff attempted to use the complainant’s 11-year-old daughter as an interpreter.  The complainant repeatedly asked for an interpreter during her time in the ER, where she was administered medical procedures.  She was eventually discharged, and although she was provided with discharge paperwork, she alleged she had no understanding of what was done to her, and had no understanding of the discharge document.

21.  In the Center for Orthopedic and Sports Medicine settlement, the patient, who is deaf, repeatedly requested an interpreter for multiple medical and physical therapy appointments related to a back injury. The orthopedic practice told the patient it was her responsibility to provide an interpreter and did not provide her with an interpreter at any of her appointments. Similarly, in the Northern Ohio Medical Specialists matter, the complainant, who is deaf and communicates using American Sign Language (ASL), sought medical care and requested an interpreter, but Northern Ohio Medical Specialists refused to provide an interpreter for her at her appointment, citing company policy.

22.  In the Northshore University Health System matter, R.A., who is deaf, was the primary caretaker of his 80-year-old mother S.A. On three separate occasions, for an emergency room visit and two hospitalizations, R.A. and S.A. requested a sign language interpreter so R.A. could communicate with the hospital’s medical personnel about his mother’s condition. R.A. was told that the hospital does not provide interpreters to family members of patients who are not hearing impaired.