In this part of the white paper, we will provide a high-level overview of healthcare providers’ legal responsibilities as it pertains to Deaf and hard of hearing individuals, as well as discuss the potential ramifications of non-compliance.

Applicable Laws in Healthcare Settings

Federal Civil Rights Laws

Healthcare providers are considered “covered entities” by federal civil rights laws such as Section 504 of the Rehabilitation Act of 1973 (Section 504), the Americans with Disabilities Act of 1990 (ADA) and Section 1557 of the Affordable Care Act (Section 1557).

In the following subsections, we will discuss healthcare providers’ legal responsibilities as it pertains to Deaf and hard of hearing individuals pursuant to each federal civil rights law:

Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 (Section 504) is a federal civil rights law that prohibits public and private entities that receive federal financial assistance, including Medicare and Medicaid, from excluding qualified individuals with disabilities or denying them an equal opportunity to participate in programs and services.

Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 (ADA) is another federal civil rights law that prohibits public and private entities from discriminating against individuals based on their disability. The ADA requires that healthcare providers provide full and equal access to their healthcare services and facilities.

The ADA is divided into five titles, two of which are applicable to healthcare organizations:

Title II of the ADA

Title II of the ADA applies to state and local governments and various related public entities, including hospitals, clinics, and medical offices operated by state and local governments.

Under the ADA, Title II entities are legally required to give primary consideration to the communication aid or service requested by an individual. This request must be honored. Exceptions to this rule exist when requests pose an “undue burden,” defined as significant expense or difficulty, or when an equally effective accommodation is present.

Title III of the ADA

Title III of the ADA applies to places of public accommodations, including private medical practices, private hospitals, and private physical rehabilitation facilities.

Under the ADA, Title III entities are encouraged to consult with the person with a disability to determine what aids or services are appropriate and give primary consideration to their requests, but are not legally obligated to provide primary consideration.

Section 1557 of the Affordable Care Act

Section 1557 is the non-discrimination provision of the Affordable Care Act; this provision prohibits discrimination on the grounds of race, color, national origin, sex, age, or disability in covered health programs or activities.

Similar to Section 504, Section 1557 applies to health programs and activities that receive funding from the Department of Health and Human Services (HHS). Section 1557 also applies to health programs and activities administered by HHS and the Health Insurance Marketplaces and issuers that participate in those Marketplaces.

Furthermore, all Section 1557 covered entities are subject to Title II regulations outlined in the ADA. Therefore, all federally funded or directed health programs and activities must give “primary consideration” to the patient’s communication requests.

Additional Applicable Laws in Healthcare Settings

Each state may have its own licensure, certificate(s), registration(s), or other regulations for sign language interpreters and transliterators. To ensure your organization is in adherence to and satisfies legal mandates and corresponding rules and regulations, we encourage you to contact the relevant licensure board or regulatory agency in the state(s) your healthcare organization operates in.

Examples of Disability-Related Discrimination

Examples of discrimination that may violate federal law include:

• Refusing to serve an individual with a disability because of their disability or communication needs.
• Charging the Deaf or hard of hearing person an extra fee to provide sign language interpreting services or CART when they are needed to ensure effective communication takes place.
• Requiring a person to wait longer for an examination because there is not an interpreter available.
• Providing limited appointment dates or times due to an individual’s disability.
• Requiring a patient to bring a family member or friend to a provider’s office to interpret (unless this is the patient’s own choice).
• Refusing to provide an alternative means of effective communication if Video Remote Interpreting (VRI) is lagging, choppy, blurry, and/or grainy.
• Refusing to provide a qualified sign language interpreter or CART based on the assumption that lipreading or writing/typing back and forth is adequate during critical encounters.
• Refusing to provide a tactile or protactile interpreter for a DeafBlind individual because the hospital only provides VRI services.
• Refusing to provide Deaf and hard of hearing companions and patient representatives with auxiliary aids and services because the patient they are accompanying is a hearing individual.
• Requiring a person to use automatic speech recognition (ASR) software on their own mobile device during a doctor’s visit because the doctor’s office refuses to provide CART.
• Refusing to provide a requested treatment based on subjective quality-of-life assumptions (e.g., a doctor refusing to provide treatment to a Deaf child based on their personal belief that the child has a low quality of life).
• Pressure to consent to a do not resuscitate (DNR) order or withdrawal of life-sustaining treatment based on the assumption that persons with certain disabilities should not seek to extend their life.

Potential Consequences for Failing to Adhere to Federal Law

An organization’s failure to comply with applicable laws and regulations can lead to the following consequences:

Risk Exposure

Non-compliance may lead to an organization becoming a target for litigation, fines, and penalties.

Detrimental Impact on Patients

Failing to adhere to federal regulations can have a cascading effect on the quality of care being provided to Deaf and hard of hearing patients.

When Deaf and hard of hearing individuals do not have access to clear and effective communication in the healthcare system, this can result in misunderstandings between patients and providers, misdiagnoses, adverse health outcomes, and readmissions.^[7]

Damaged Reputation

If a healthcare organization receives negative press regarding a fine, penalty, and/or lawsuit, it may erode trust amongst Deaf and hard of hearing individuals in this particular healthcare organization.

Furthermore, Deaf and hard of hearing individuals, like hearing individuals, use social media to share information about their experiences with different organizations and businesses. Along these lines, Deaf and hard of hearing individuals have shared recorded videos of disparate experiences in healthcare settings.

Negative Impact on Reimbursement

Value-based care has emerged as an alternative and potential replacement for fee-for-service reimbursement based on quality rather than quantity. With the emergence of this form of reimbursement, healthcare organizations need to pay attention to quality metrics that impact reimbursement including readmission rates, length of stay and incidents.

The myriad of adverse effects on Deaf and hard of hearing patients may result in subpar patient experience and satisfaction amongst patients. Consequently, as these are vital quality metrics impacting reimbursement, failure to remain legally compliant could ultimately lead to lower reimbursement rates for healthcare providers.

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^[7] Panzer, K., Park, J., Pertz, L., & McKee, M. M. (2020). Teaming Together to Care for Our Deaf Patients: Insights from the Deaf Health Clinic. JADARA, 53(2), 60-77. Retrieved from https://repository.wcsu.edu/ jadara/vol53/iss2/3.