Disability Discrimination

DOJ and HHS Partner in Settlement of Health Care Disability Discrimination Case

On October 5, 2021, The US Department of Health and Human Services (HHS) and the United States Attorney in Connecticut teamed up to settle disability discrimination complaints against William Backus Hospital in Norwich, CT. The US Attorney is part of the US Department of Justice (DOJ) with offices in all 50 states, Puerto Rico, and the District of Columbia. This dual agency settlement may indicate increased cooperation between DOJ and HHS in the Biden administration and reflect greater federal enforcement attention to health care disability discrimination allegations.

Disability Discrimination Allegations

According to the Norwich Bulletin, the complaint in this case during a patient’s five-day hospital stay in 2015. As the Bulletin reported:

“The complainant’s claim, according to the [settlement] agreement, says when he arrived, he was provided American Sign Language interpreters during admission and for discharge planning. Otherwise, he had to communicate with written notes, but he’s limited in his ability to read and write English.

The complainant’s claim, according to the agreement, says when he arrived, he was provided American Sign Language interpreters during admission and for discharge planning. Otherwise, he had to communicate with written notes, but he’s limited in his ability to read and write English.”

The settlement agreement adds further background details:

“The Complainant alleged that he was unable to communicate effectively with personnel about his medical care using written notes because he has very limited ability to read and write English. In addition, on some occasions, personnel were unable to operate Backus’ Hospital’s video remote interpreting system.”

Like the vast majority of US hospitals, Backus Hospital receives federal financial assistance, which brings the provider within the requirements of Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act of 1973, both of which prohibit disability discrimination by federally funded organizations such as Backus.

Communications Must be “Effective”

In the agreement, HHS and DOJ outlined the basic legal requirements for communicating with people with disabilities under federal law, which mandates that communications for people with disabilities must be “effective” for them to have equal access to health care programs, services, and activities.

“Under Section 504 and Section 1557, and the relevant implementing regulations, no qualified individual with a disability shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination by reason of disability in any health program or activity receiving financial assistance from HHS. 29 U.S.C. § 794; 42 U.S.C. § 18116; 45 C.F.R. §§ 84.4(a), 84.52(a)(1); 45 C.F.R. § 92.2.

Specifically, a recipient of HHS financial assistance shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question. 45 C.F.R. § 84.52(d); 45 C.F.R. § 92.102(b).

Furthermore, a covered health program or activity shall take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in health programs and activities, in accordance with the standards found at 28 C.F.R. §§ 35.160 through 35.164 (regulation implementing Title II of the ADA). 45 C.F.R. § 92.102(a) (incorporating 28 C.F.R. §§ 35.160 – 164).”

As part of its new agreement, Backus must implement multiple new policies and procedures. According to the Bulletin:

“Many changes are required in the agreement. These changes include Backus Hospital revising its polices for deaf and hard of hearing people within 90 days of the agreement’s effective date, Backus Hospital personnel needing to perform a communication assessment as part of initial patient assessments, time limits for providing interpreters, appropriate training, and only relying on certified interpreters. Also, the hospital will need a civil rights coordinator in charge of handling matters with disabled people.”

To ensure that Backus will provide effective communications for patients with disabilities throughout their hospital stay, the agreement requires:

“Backus Hospital shall reassess its determination of which appropriate auxiliary aids and services are necessary, in consultation with the Patient or Companion, regularly throughout the visit to ensure effective communication, and promptly after a Patient or Companion indicates that communication is not currently or has not been effective.

Backus Hospital will document in the Patient’s medical records any instance where a Patient or Companion indicates that the auxiliary aids and services provided by Backus Hospital have not been effective; any reassessment; and the results of any redeterminations. With respect to any subsequent visits, Backus Hospital will consult the Patient’s records to review what, if any, auxiliary aids or services may be necessary without requiring additional assessments or requests for the appropriate auxiliary aids and services by the Patient or Companion, unless the Patient or Companion indicates otherwise.”

Video Remote Interpreting – Just Obey the Law

In many health care situations where Video Remote Interpreting (VRI) is used to provide effective communications, health care personnel do not know how to operate VRI correctly and legally Other common problems when VRI is not being used as legally required include poor picture quality, choppy images, and insufficient bandwidth to enable optimal streaming video quality.

Such technological considerations are mandated by federal law. Providing poor quality VRI transmission quality can be a federal civil rights violation, as Backus Hospital discovered in this case.

The settlement agreement includes Backus’s VRI legal requirements while also mandating that Backus Hospital personnel regularly check with patients to ensure that VRI is providing them with communications that meet their preferences and needs.

As the agreement states:

“Once the system is operating, Backus Hospital personnel shall ask the Patient or Companion whether the VRI service is meeting his or her communication needs and make a record of his or her response…

In the event that the Patient or Companion cannot communicate effectively using any VRI service Backus Hospital elects to acquire and offer, Backus Hospital shall make all reasonable efforts to locate an on-site Qualified Interpreter or other auxiliary aid or service that will provide effective communication; periodically inform the Patient or Companion of the status of those efforts; and document the concern and the steps taken to locate a qualified Interpreter. For the duration of this Agreement, Backus Hospital will monitor the effectiveness of the VRI service and, if applicable, address any deviations with the VRI service provider.”

The settlement further provides for mandatory training of all physicians and medical staff, filing of two compliance reports with the US Attorney, and the appointment of a civil rights coordinator to be responsible for the hospital’s compliance with the settlement and for coordinating Backus Hospital’s ongoing efforts to comply with federal disability discrimination laws.   

© Bruce L. Adelson 2021. All Rights Reserved The material herein is educational and informational only.  No legal advice is intended or conveyed.

Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise.  Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.  Mr. Adelson is a faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness.

Mr. Adelson’s blogs are a Bromberg exclusive