The Americans with Disabilities Act Amendments Act of 2008, which took effect Jan. 1, could portend changes in the workplace in general, and for neurologists, new legal obligations to assist disabled patients.
The amended Act overturns several court rulings that narrowed the protections of the ADA, said Robert M. Portman, a health care attorney with the law firm of Powers, Pyles, Sutter & Verville, PC, in Washington, DC, and legal counsel for several national medical specialty societies. Powers, Pyles, Sutter & Verville, PC, formerly provided legislative lobbying services for the AAN Professional Association (AANPA), and still provides regulatory services for the Academy.
Under the previous version of the ADA as interpreted by some courts, individuals who used medication, hearing aids, prosthetic devices, and mobility devices to minimize the effects of their disabilities were no longer considered covered by the protections of the ADA, and could not challenge discriminatory treatment under the Act.
But the new interpretation broadens the definition of “disability” to legislatively reverse the Supreme Court's narrow interpretations of the term, said Charles D. Goldman, a Washington, DC, attorney with expertise in disability law. “Thus a person with multiple sclerosis or epilepsy is much more likely to be covered by the amended ADA even if they are seizure-free or have not had an exacerbation due to the remedial effect of medication,” he said.
The largest issue for neurologists, Goldman said, concerns the declaration that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when [the condition is] active.” For neurologists, that could mean an increase in requests from patients seeking their assistance for documenting disability in the workplace, as well as in other activities. Careful documentation of neurological findings and how they affect the patient's life activities is warranted, said Goldman.
Physicians' offices are required to provide appropriate auxiliary aids and services for effective communication with individuals with visual, hearing, or sensory impairments, unless doing so would cause an undue burden on the business. Auxiliary aids and services include written instructions, note-taking, interpreters, or use of telecommunication devices.
But, according to Portman, professional interpreters are not required on demand in all medical situations. To decide what is needed, physicians should consider the length, complexity, and importance of the communication and the nature of the patient's condition and required treatment. Complex diagnoses or treatment decisions and obtaining informed consent for a major surgical procedure usually warrant a qualified interpreter.
“The best approach is to try to reach agreement with the patient on the most appropriate form of communication in a particular situation,” Portman said. Physicians are expected to give “primary consideration” to their patients' views in determining appropriate accommodations, he explained, and the patient's approval should be carefully documented and signed by the patient.
CHALLENGES IN THE COURTS
Physicians can decide how they accommodate patients, but courts may not agree with their decisions. This is what happened to New Jersey rheumatologist Robert A. Fogari, MD, who had a $400,000 judgment (including punitive damages) issued against him in October 2008 for allegedly refusing to provide a sign-language interpreter to a deaf patient who had lupus, according to a Jan. 5 report in the AMA newspaper, AMNews.
The patient, Irma Gerena, claimed she had repeatedly asked Dr. Fogari to provide a sign language interpreter during her approximately 20 office visits, and also had a sign language interpreter service call Dr. Fogari to inform him of their services. But citing the high cost of an interpreter — estimated at $150 to $200 per visit — for his solo practice, he instead chose to exchange written notes with Gerena and her family — an arrangement that Dr. Fogari's attorney said had been mutually agreed upon. Medicare reimbursed only $49 per visit, and since traditional medical liability insurance does not cover such claims, any judgments would be Dr. Fogari's responsibility.
Gerena transferred to another doctor, but she alleged Dr. Fogari never fully explained the risks and benefits of her treatment — steroids — for which she had no major complications. She sued Dr. Fogari under the Americans with Disabilities Act and the Rehabilitation Act, as well as New Jersey's anti-discrimination law, claiming that without an interpreter, she never had completely understood her diagnosis, treatment, or prognosis, and did not have an equal opportunity to fully participate in her care, according to the AMNews article.
The jury found that Dr. Fogari had discriminated against Gerena by failing to provide a sign language interpreter to ensure effective communication. Half of the judgment was for punitive damages. Dr. Fogari is appealing the verdict.
Commenting on Dr. Fogari's case, Goldman said punitive damages are very rare and to avoid damages, especially punitive ones, “doctors must present themselves as compassionate caregivers who truly wish to serve their patients, not as individuals who are only concerned about money.”
Portman added that typically disability discrimination claims are not covered by medical liability insurance, so physicians are personally liable for any judgments. He explained that courts have generally found that interpreter costs exceeding the cost of the patient's medical visit are not an undue burden. Accommodating one or two hearing-impaired patients at a time usually would not constitute an undue burden, he said.
Physicians are not allowed to charge disabled individuals for the costs of interpreters or other auxiliary aids and services, even if the patient cancels an appointment without notice. The costs can, however, be “included in general overhead and recouped through higher charges to all patients,” said Portman. He also noted that small businesses are permitted by the Internal Revenue Code to receive a tax credit for certain costs of ADA compliance.
In addition, physicians may refer patients to another practice if the volume of requests for accommodations such as interpreters significantly and negatively creates an undue burden on their practice.
The bottom line, said Goldman, is that neurologists “should always periodically review their service practices with a view towards maximizing their ability to provide their services efficiently and professionally at a reasonable price. If they have any questions they should consult an attorney — after inquiries and due diligence — who works with the ADA and these issues on a regular basis.” [See “Resources for ADA Accommodations.”]
RESOURCES FOR ADA ACCOMODATIONS
Charles D. Goldman, a Washington, DC, attorney with expertise in disability law, recommended that physicians with questions about accommodations, visit the Job Accommodations Network — www.jan.wvu.edu — of the Office of Disability Employment Policy of the US Department of Labor. The consultants can provide guidance regarding the ADA's definition of disability from the Equal Employment Opportunity Commission — see www.eeoc.gov — the enforcing agency for the ADA, and the courts. Additional resources follow:
- ADA regulations: www.ada.gov
- Disability law attorneys: www.abanet.org/disability/; http://lawyers.findlaw.com/
- Epilepsy Foundation's Jeanne A. Carpenter Epilepsy Legal Defense Fund: www.epilepsylegal.org
- Registry of Interpreters for the Deaf: http://www.rid.org/
- Assistive devices: www.abledata.com