ADA Compliance
The Americans with Disabilities Act of 1990 (ADA) is a civil rights law that was enacted to eliminate discrimination against those with disabilities. Title III of the ADA prohibits discrimination against individuals with disabilities by places of public accommodation. Health care providers are considered places of public accommodation.
Title III Requirements
Title III of the ADA outlines the requirements for places of public accommodation such as an optometrist’s office.
You must “make reasonable modifications in policies, practices, or procedures” to assure that individuals with disabilities have equal access to services and facilities, unless such modifications would “fundamentally alter” the nature of the optometric service. This requirement is rarely at issue in litigation – most often, a violation of this provision involves a refusal to allow a service animal inside the facility.
You must offer “auxiliary aids and services” to those with disabilities to ensure they are treated equally and inclusively, unless providing such services would “fundamentally alter” the nature of the service or would create an “undue burden.” Common examples of auxiliary aids and services include providing sign language interpreters, assistive listening headsets, television captioning, telecommunication devices for the deaf (TDD’s), and videotext displays. Optometrists need not provide the auxiliary aid or service requested by the patient, or even the most effective one – they simply must provide an aid or service that allows the patient an equal opportunity to obtain the same results as a non-disabled patient. Optometrists should consult with any patient with disabilities before his or her visit to determine what is a necessary accommodation.
You must “remove architectural barriers, and communication barriers that are structural in nature,” from facilities constructed before 1993 “where such removal is readily achievable.” (Buildings constructed in 1993 or later must fully comply with the ADA Accessibility Guidelines, or ADAAG.) This requirement is often the most cumbersome because it can involve costly retrofitting projects, such as installing wheelchair ramps, making curb cuts at sidewalks and entrances, and widening doorways. If making these changes is not readily achievable, optometrists must provide alternative measures, such as retrieving merchandise from inaccessible shelves, or relocating activities to an accessible location. Whether a removal of barriers is “readily achievable” is based on a variety of factors, including the cost of the removal and the financial status of the facility involved. However, only a court can ultimately determine whether the removal is readily achievable or not – and by that point, any defendant will have spent large sums on legal fees.
Consider hiring a Certified Access Specialist (CASp), they can provide services that offer you “qualified defendant” status in a construction-related accessibility lawsuit.
Some ADA requirements are specific to professional offices of health care providers.
Most notably, any building with two stories or more must have an elevator (other places of public accommodation need only have an elevator if the building is three stories or more). Optometrists should also be aware that making significant alterations or renovations to a facility may trigger additional responsibilities, as outlined in the ADAAG. Although compliance with all of these requirements may be expensive, the government offers some relief in the form of tax incentives to offset costs.
Certified Access Specialist (CASp) Property Inspection
A Certified Access Specialist (CASp) is a professional who has passed an examination and has been certified by the State of California to have specialized knowledge of the applicability of state and federal construction-related accessibility standards. A CASp will know which standards apply to your property based on the age of your facility and its history of improvements. While a licensed design professional, such as an architect or engineer, can provide you an access compliance evaluation of your facility, only a CASp can provide services that offer you “qualified defendant” status in a construction-related accessibility lawsuit.
What are the “qualified defendant” status benefits?
You can retain the services of a CASp at any time; however, “qualified defendant” status is only provided if you receive an inspection of your existing facility, a report from a CASp, and have a compliance schedule in place before a construction-related accessibility claim is filed. The “qualified defendant” benefits are as follows:
Reduced statutory damages:
With a CASp inspection, completed according to CRASCA statutory damages may be reduced to a minimum of $1,000 for each occasion (visit) by the plaintiff if you can demonstrate that all construction-related violations that are the basis of a claim were corrected within 60 days of being served with the complaint.
Qualifying small businesses that receive a CASp inspection, completed according to CRASCA, may opt for a 120-day grace period during which they are free from liability from statutory damages of those violations identified in the CASp report if they are corrected within this 120-day time period.
Without a CASp inspection, statutory damages of $4,000 may be assessed per occasion under Civil Code section 55.56; not $4,000 per each violation as previously allowed under the Unruh Act.
A person is denied full and equal access if the individual personally encountered the violation or the individual was deterred from accessing a place of public accommodation. A denial of full and equal access includes instances where a person experienced difficulty, discomfort, or embarrassment because of the violation.
If you are found liable, you will be responsible for paying the plaintiff’s attorneys fees in addition to statutory damages.
90-day stay of court proceeding and an early evaluation conference.
An inspection by a CASp and following the schedule of improvements demonstrates the intent to be in compliance.
Am I required by law to hire a CASp?
There is no law that requires a property owner or tenant to hire a CASp. If you are a business or property owner, your election not to hire a CASp shall not be admissible to prove your lack of intent to comply with the ADA or California law. If a CASp solicits your business with threat of legal action of a construction-related accessibility claim if you do not contract for services, you should immediately file a complaint with DSA.
What should I look for in a written agreement for CASp services?
A CASp can provide to you a variety of accessibility services, including consultation and inspection of the public accommodation areas of your facility, and plan review of permit documentation. All CASps are required to provide you with a written agreement, which should specify the scope of work. Most importantly, if you are seeking the services that offer you “qualified defendant” status, then the agreement should, at a minimum, include the following information:
Define the public accommodation area of your facility being inspected.
State that a CASp inspection report prepared according to the Construction-Related Accessibility Standards Compliance Act (CRASCA, Civil Code §55.51-55.545) will be provided.
State that a disability access inspection certificate will be provided.
Include the CASp’s certification number and certification expiration date.
Provide a place for both parties to sign the agreement.
Reasonable Accommodations for Deaf Patients
Health care providers have a duty to provide appropriate auxiliary aids and services when necessary to ensure that communication with people who are deaf or hard of hearing is as effective as communication with others. These individuals may not always be “patients” of the health care provider, for example the parent of a patient.
All health plans must provide a qualified interpreter to patients when asked, either in-person or through a telephone- or video-conferencing system. Health plans must pay for these services. Patients should not be charged.
What types of auxiliary aids and services are required?
Auxiliary aids and services include equipment or services a person needs to access and understand aural information and to engage in effective communication. For example, the rule includes qualified interpreters, computer-aided transcription services (also called CART), written materials, assistive listening devices, captioning, or other effective methods of making aural information and communication accessible.
The requirement is flexible, and you can choose among various alternatives as long as the result is effective communication with the deaf or hard of hearing individual. An individual who is deaf or hard of hearing likely has experience with auxiliary aids and services to know which will achieve effective communication with his or her health care provider. The U.S. Department of Justice expects that the health care provider will consult with the person and consider carefully his or her self-assessed communication needs before acquiring a particular auxiliary aid or service.
The ADA does not require the provision of any auxiliary aid or service that would result in an undue burden or in a fundamental alteration in the nature of the goods or services provided by a health care provider. An undue burden is something that involves a significant difficulty or expense. For example, it might be a significant difficulty to obtain certain auxiliary aids or services on short notice. Factors to consider in assessing whether an auxiliary aid or service would constitute a significant expense include:
The nature and cost of the auxiliary aid or service
The overall financial resources of the health care provider; the number of the provider’s employees
The effect on expenses and resources; legitimate safety requirements
The impact upon the operation of the provider.
Showing an undue burden may be difficult for most health care providers. When an undue burden can be shown, you still have the duty to furnish an alternative auxiliary aid or service that would not result in an undue burden and, to the maximum extent possible, would ensure effective communication.
Who is qualified to be an interpreter in a health care setting?
A qualified interpreter is an interpreter who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Interpreters providing services in a medical setting may need to be able to interpret medical terminology.
There are various kinds of interpreters. You should ascertain the particular language needs of the person who is deaf or hard of hearing prior to hiring an interpreter. Some individuals may require interpreters who are fluent in American Sign Language, a language with grammar and syntax that is different from the English language. Others may require interpreters who use Signed English, a form of signing which uses the same word order as does English. Still others who do not know any sign language may require oral interpreters, who take special care to articulate words for deaf or hard of hearing individual, or cued speech interpreters, who give visual cues to assist in lip reading (also called speech reading).
Generally speaking, you cannot require family members or friends to interpret for deaf or hard of hearing patients. They often do not possess sufficient skills to interpret effectively in a medical setting. Family members and friends are also very often too emotionally or personally involved, may have interests that conflict with the patient’s, may cause role confusion, and are unable to interpret “effectively, accurately, and impartially.” Finally, using family members and friends as interpreters can cause problems in maintaining patient confidentiality.
In what medical situations should a health care provider obtain the services of a qualified interpreter?
An interpreter should be present in all situations in which the information exchanged is sufficiently lengthy or complex to require an interpreter for effective communication. Examples may include, but are not limited to, discussing a patient’s medical history, obtaining informed consent and permission for treatment, explaining diagnoses, treatment, and prognoses of an illness, communicating prior to and after major medical procedures, providing complex instructions regarding medication, and explaining medical costs and insurance.
Must a health care provider pay for an auxiliary aid or service for a medical appointment if the cost exceeds the provider’s charge for the appointment?
In some situations, the cost of providing an auxiliary aid or service (e.g., a qualified interpreter) may exceed the charge to the patient for the health care service. You are expected to treat the costs of providing auxiliary aids and services as part of the overhead costs of operating a business. Accordingly, so long as the provision of the auxiliary aid or service does not impose an undue burden on your business, you are obligated to pay for the auxiliary aid or service.
You cannot charge a patient for the costs of providing auxiliary aids and services.
Eligible small businesses may claim a tax credit of up to 50 percent of eligible access expenditures that are over $250, but less than $10,250. The amount credited may be up to $5,000 per tax year. Eligible access expenditures include the costs of qualified interpreters, CART services, and other auxiliary aids and services. Please consult with your financial or tax advisor on this issue.
ADA Resources
ADA Accessibility Guidelines for Buildings and Facilities (ADAAG): Available at http://www.access-board.gov/guidelines-and-standards/buildings-and-sites/113-ada-standards/background/adaag
ADA Guide for Small Businesses (published by the Department of Justice, or DOJ): Available at http://www.ada.gov/smbusgd.pdf
ADA Standards for Accessible Design (published by the DOJ): Available at http://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards_prt.pdf
ADA Best Practices Tool Kit for State and Local Governments (published by the DOJ): Available at https://www.ada.gov/pcatoolkit/toolkitmain.htm
ADA Update: A Primer for Small Businesses (published by the DOJ): Available at https://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm
The DOJ’s ADA Information Line: (800) 514-0301 (voice); (800) 514-0383 (TDD)