In 2011, the Department of Justice launched its “Barrier Free Health Care Initiative.” This Initiative utilizes U.S. Attorneys Offices across the Country to act as a “force multiplier” to ensure that individuals with disabilities are not denied access to health care. The DOJ’s enforcement priorities include situations where an individual is unable to access treatment, care, or services because of physical limitations such as deafness and blindness.
Recently, the DOJ has made equal access for individuals with HIV/AIDS a priority under this initiative. Within the last two months, the Agency has entered into settlement agreements with three different medical providers (a dental office, a clinic that treats eating disorders, and a pain management clinic) based on their alleged failure to provide equal access to patients with HIV. These settlement agreements address alleged unequal treatment in violation of the ADA’s public accommodations requirements. In the case of the dental office, the DOJ objected to the practice allegedly requiring a patient with HIV to schedule appointments only at the end of the day. The eating disorder clinic allegedly delayed and ultimately refused to accept an individual with HIV based on a policy not to accept patients with “high risk communicable diseases.” Finally, the DOJ settled a case involving a pain management center where a referral physician refused to treat a patient with HIV. Importantly, these three examples only highlight recent enforcement actions under this Initiative. The Agency has also targeted medical practices for failure to provide interpreters or other auxiliary aids for the hearing impaired. Each of these settlement agreements required modifications to the health care providers’ practices, as well as significant monetary penalties.
There is no question that the public accommodations requirements of the ADA apply to hospitals, medical practices, and other health care providers. The issue for many medical practices, however, is the extent that they may permissibly modify their policies and procedures to protect doctors, staff and patients. When developing policies and procedures that potentially impact the disabled hospitals and medical providers should consider the following:
- Do your policies and patient procedures make it harder for individuals with disabilities (including HIV status) to access treatment and services? If so, they may violate the ADA’s requirement that public accommodations provide equal access for the disabled.
- Are any restrictions based on “communicable diseases” or other health concerns related to a truly “direct threat,” or a concern only about a potential threat? Unless specifically targeted to a direct and immediate threat to health and safety, your practice could find itself in the DOJ’s cross hairs. At a minimum, health care providers should take steps to ensure that any such restrictions are as narrow as possible.
- Have you audited your medical practice recently to ensure that it satisfies the ADA’s accommodation requirements concerning physical barriers? This would include both medically-specific barriers, as well as traditional equal access requirements such as accommodations for the deaf (i.e. interpreters and Braille) and ensuring that the building itself complies with ADA guidelines and requirements.
The DOJ has made health care providers an enforcement priority for ADA compliance. Given this priority, such facilities are also a heightened target for private ADA plaintiffs and disability rights organizations. As is often the case, a medical provider’s best defense is taking proactive steps to ensure that its policies and practices comport with the ADA and can be defended if challenged.