The U.S. Attorney for the Eastern District of New York has recently reached an Americans with Disabilities Act (ADA) disability discrimination settlement with Orthopedics, Spine, and Sports Medicine, LLC, d/b/a Total Orthopedics & Sports Medicine (Total Orthopedics) to resolve allegations that Total Orthopedics violated the ADA communications obligations for people who are deaf or hard of hearing. The agreement comes under ADA Title III, which prohibits discrimination against people with disabilities in places of public accommodations such as medical centers. Individuals who are deaf or hard of hearing fall within the protection of the ADA. This case began as a complaint to the U.S. Attorney by a Total Orthopedics patient.
Total Orthopedics is an orthopedic health care clinic with multiple locations throughout New York City, New Jersey, and on Long Island.
In the settlement, Total Orthopedics agreed to update and maintain appropriate ADA policies, to revise its training materials, to provide annual training to its personnel, to post notices in all of its medical centers and on its website to inform patients of their right to auxiliary aids and services, and to cooperate with the United States Attorneys’ Office for the Eastern District of New York to ensure ongoing compliance with the terms of the settlement agreement. Total Orthopedics agreed to pay $1,500.00 compensation to the complainant, referred to as S.W. in the settlement agreement to protect her confidentiality, according to the U.S. Attorney’s Office.
U.S. Attorneys’ Offices are located throughout the United States, in each federal judicial district, such as the Eastern District of New York in Brooklyn. U.S. Attorneys are usually presidential appointees who serve as local criminal and civil enforcement of federal law for the Department of Justice (DOJ) across the country. DOJ has nationwide authority to enforce the ADA.
Complainant S.W. is deaf and uses American Sign Language as her preferred method of communication. The United States commenced its investigation of this case after receiving a complaint from S.W. alleging that Total Orthopedics failed to provide S.W. with a qualified sign-language interpreter necessary for effective communication during a medical appointment on January 14, 2020.
According to the U.S. Attorney, Total Orthopedics refused to provide S.W. with a qualified sign-language interpreter, even after she requested an interpreter and informed Total Orthopedics that sign language was her preferred communication method.
Upon beginning its investigation, the United States requested and reviewed documentation regarding Total Orthopedics’ policies, training, and implementation of services for individuals who are deaf or hard-of-hearing, and interviewed three Total Orthopedics employees.
The ADA settlement requires Total Orthopedics to assess the accommodation needs of patients with communication disabilities who inform the health care clinic of their need for a communication accommodation. Such assessments will be made in consultation with each patient who is deaf or hard of hearing.
According to the agreement:
“Assessment for Effective Communication: The determination of appropriate Auxiliary Aids and Services will be made by Total Orthopedics Personnel in consultation with the Patient who is deaf or hard-of-hearing.
The determination will consider all relevant facts and circumstances, including, for example, the Patient’s communication skills and abilities, the nature and complexity of the communication and the timing, duration, and frequency with which the Auxiliary Aids and Services will be needed for effective communication throughout the Patient’s visit. The assessment will include consideration of how Patient needs will be met given the reasonable possibility of delays and/or anticipated needs for flexibility based on Total Orthopedics’ typical operations.
In-Person Qualified Interpreters: Some circumstances may require that Total Orthopedics provide an In-Person Qualified Interpreter to Patients who are deaf or hard-of-hearing. Such circumstances typically arise when the communication is particularly complex or lengthy. In such circumstances, Total Orthopedics will presume that an In-Person Qualified Interpreter is necessary for effective communication with a Patient when:
- discussing a Patient’s symptoms for diagnostic purposes, and discussing medical conditions, medications, and medical history;
- explaining medical conditions, treatment options, tests, medications, surgery, and other procedures;
- providing a diagnosis or recommendation for treatment;
- communications immediately preceding, during, and immediately after a surgery or procedure and during physician’s rounds;
- obtaining informed consent for treatment, surgery, or procedures;
- providing instructions for medications, post-treatment activities, and follow-up treatments; or
- discussing complex billing and insurance matters.”
Video Remote Interpreting (VRI) may also be appropriate to achieve effective communication with a deaf o hard of hearing patient, the settlement provides. However, according to the settlement,
VRI shall not be used as a substitute when an In-person Qualified Interpreter is necessary or requested by a Patient. When using a VRI service, Total Orthopedics shall ensure that it provides real-time, full-motion video and audio with an uninterrupted connection; a sharply delineated image; a clear, audible transmission of voices; and adequate training to users of the technology so that they may quickly and efficiently set up and operate the VRI.
The above provision in bold suggests that VRI cannot be used as an ADA accommodation if the patient “requests” an in-person interpreter. Therefore, this agreement appears to go beyond what DOJ has advised about the ADA for Title III organizations, such as Total Orthopedics. ADA Title III applies to “places of public accommodation,” or businesses that are open to the general public. No federal funding is required for ADA Title III to apply.
According to DOJ’s Effective Communication Guidance (2014):
“Title III entities are encouraged to consult with the person with a disability to discuss what aid or service is appropriate. The goal is to provide an aid or service that will be effective, given the nature of what is being communicated and the person’s method of communicating…”
By requiring Total Orthopedics to not use VRI as a “substitute” for an in-person qualified sign language interpreter, DOJ appears to be going beyond its 2014 guidance that Title III businesses discuss appropriate communication accommodations with a deaf person but not to require that a given accommodation, in-person interpreter, must be used if requested.
This may appear to be a subtle, nuanced distinction. However, DOJ’s admonition in this case bears watching as additional court decisions, federal enforcement, and regulations are forthcoming. The Total Orthopedics settlement lasts for three years, during which the health care business must submit training materials, annual reports, and other information to the U..S. Attorney in Brooklyn.
© Bruce L. Adelson 2023. 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.