Physicians’ Primer on the Americans With Disabilities Act
What is the ADA?
Perhaps the single most comprehensive piece of federal civil rights legislation since the 1960s, the Americans With Disabilities Act (ADA) has affected all of us with its sweeping legal protection for disabled citizens. The Americans With Disabilities Act prohibits discrimination against disabled persons in employment matters and requires that public buildings, including hospitals and medical offices, be accessible to disabled patients. Did you also know that the ADA includes many provisions that govern the daily operation of your medical practice and that have a great impact on your relationships with your patients?
The protections codified in the ADA are similar in many respects to those afforded other groups of citizens who have been historically subjected to unfair discrimination, such as racial and religious groups. Under the ADA, it is against the law to discriminate against persons because of a disability in almost any context, including employment, access to public facilities, and, of particular relevance here, in the provision of professional services. However, this group is different from other protected classes because many members have physical or mental impairments that may legitimately affect their ability to perform certain job duties or engage in certain activities, making it much more difficult to determine whether a denial of access to the job or activity is discriminatory. For most of us, it is not hard to set aside an applicant’s race in determining whether to hire him/her as an office manager; it is much harder to make that decision if that person is blind. Moreover, the ADA differs from other anti-discrimination laws because it imposes affirmative obligations on property owners and tenants to make their public services accessible to protected citizens, sometimes at significant cost.
The ADA affects the practice of most private physicians in three important areas:
- Professional services;
- Physical access to public facilities;
- Employment.
In other words, the ADA affects physicians, whether they work in small, medium, or large medical offices, in almost every aspect of their day-to-day work. The first two of these areas are covered in Title III of the ADA (“Public Accommodations”), which applies not only to building accessibility but also to any professional services offered to the public, including medical services offered by healthcare providers and hospitals. The third area is covered by Title I (“Employment”), which prohibits discrimination in all aspects of the employer-employee relationship, including the application process, hiring, work conditions, promotion, termination, benefits, etc.
Who is protected by the ADA?
The ADA defines a disabled person as anyone who has a “physical or mental impairment that substantially limits one or more major life activities.” Note the inclusion of mental impairments, which has been held to include depression, bipolar disorder, ADHD, vulnerability to stress, and in some cases even alcoholism. The list of covered physical impairments is long and growing. In one famous 1998 United States Supreme Court case, the Supreme Court refused to overturn a lower court ruling that a dentist who had refused to treat a patient with AIDS had violated the ADA. In other cases, persons with diabetes mellitus, epilepsy, chronic fatigue syndrome, migraine headaches, morbid obesity, hearing impairment, hypertension, and even shortness (height) have all been found to be protected by the provisions of the ADA. Note, however, that the disability must be real, and even a physician’s diagnosis does not always mean the person is “disabled.” For the ADA to apply, there must be evidence that the proposed disability is one “that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”
Who is subject to the ADA?
Those aspects of the ADA pertaining to employment do not apply to businesses with fewer than 15 employees. However, the California counterpart to the ADA, the Fair Employment and Housing Act (“FEHA”), which in many respects is more restrictive than the ADA, applies to any business with five or more employees. So, for some of you, some of the most perplexing aspects of the ADA (or FEHA) — those related to employment — do not apply. While it is certainly appropriate to try to honor the goals of the ADA and FEHA in all aspects of your relationships with your potential, current, and future employees, if you have fewer than five of them, you are not subject to the ADA or FEHA, its California counterpart.
There is no similar limitation to Title III (Public Accommodations): Anyone who owns, operates, leases, or works in a business open to the public, including, specifically, hospitals and medical offices, is required to comply with its provisions. This point was made by a 2001 United States Supreme Court case entitled PGA Tour, Inc. v. Martin, a case in which professional golfer Casey Martin maintained that his medical condition required him to use a golf cart in competitive tournaments. In that case, the Supreme Court held that the ADA applies to professional golf tours even though they are arguably not open to the public and the participants are arguably not business patrons.
Public Accommodations: Services
Probably the scariest aspect of the ADA for most physicians is that provision pertaining to public services. In case you didn’t know, the ADA prohibits you from discriminating in your practice against anyone who suffers from a “physical or mental impairment that substantially limits one or more major life activities,” including any of the disabilities cited above and many others. For many of you, the very nature of your practice means that many of your patients suffer from medical conditions for which they are seeking treatment but which may also render them “disabled” under the ADA. As a general rule, it should be assumed that any physical or mental condition that might significantly affect a patient’s quality of life is going to be viewed as a disability under the ADA.
The ADA includes an affirmative obligation to make reasonable modifications in policies, practices, or procedures to accommodate disabled patients and to provide “auxiliary aids” where necessary to preserve access to the services you offer the public. “Auxiliary aids” means, for example, interpreters, assisted listening devices, closed captioning software for hearing-impaired patients, readers, audio recordings, and large print and Braille materials for the vision-impaired. It is a violation of the ADA to prohibit a patient from bringing a service dog into your office.
There are several caveats to these rules. First, and probably most importantly, it is only a violation of the ADA to discriminate against a disabled person because of their disability. Obviously, there are legitimate reasons to decline to provide care to a patient who happens to be disabled, as long as the disability is not the reason you so decline. For example, you may refuse to provide care for a disabled patient because of an inability to pay for services, because your patient load is full, or because the case presents issues that are outside your area of expertise. Secondly, a physician is not required to provide services to a disabled patient who poses a “direct threat” to the health or safety of you or others. Thirdly, a physician is not required to accommodate a disabled patient where doing so would be “unduly costly, extensive, substantial or disruptive.” However, you must be aware of the subjective nature of these exceptions: One person’s “direct threat” or “undue cost” is another’s unfair discrimination.
So what must you to do comply with this aspect of the ADA? Unfortunately, there is no airtight mechanism for ensuring compliance, and there is no way to completely protect yourself from being sued for disability discrimination. No matter how conscientious you are, you are at risk for litigation under the ADA by virtue of the fact that you have an office open to the public in which you practice medicine in southern California. You might be surprised to learn that there are “drive-by” plaintiffs who make a living by cruising offices and parking lots (which are required to have a certain percentage of spaces dedicated to disabled drivers, etc.) looking for potential defects. Once spotted, these persons patronize the business and then file suit. The key to protecting yourself is to do the best you can to minimize the risk of suit, institute a policy of non-discrimination on all grounds, including disability, and make sure your office staff is aware of the extraordinarily broad definition of disability found under the ADA.
The Department of Justice maintains an ADA website with a wealth of useful information and downloadable flyers on many of these issues: www.usdoj.gov/crt/ada/. They also maintain an ADA Information Line at 800/514.0301, or contact your attorney for more information and useful tips.
Public Accommodations: Facilities
Under the ADA, all public facilities, including hospitals and medical offices, must be accessible to disabled patients. What may come as something of a surprise is that the ADA places responsibility for executing these requirements on landlords and tenants equally. While in most cases legal responsibility for compliance with the ADA and related state laws and regulations will be clearly allocated by lease or contract, you shouldn’t assume that simply because someone else owns the building in which you practice, you are not responsible for making certain the property is accessible.
Of course, if you practice in a 100-year-old bungalow with poor access, you aren’t required to demolish the building. For structures designed for first occupancy after January 26, 1992, the ADA requires full accessibility to individuals with disabilities unless it is “structurally impossible to do so.” With renovations and reconstruction begun after January 26, 1992, in places of public accommodation the alterations must to the maximum extent possible provide accessibility in the altered areas and, in some cases, to restrooms, telephones, and drinking fountains serving the altered areas. For facilities that were constructed before the ADA’s enactment in 1990, architectural barriers that deny access to persons with disabilities must be removed where such removal “ is readily achievable,” which is defined as “accomplished easily and without much difficulty or expense.” Unfortunately, this language is ambiguous and seems to invite litigation. However, some regulatory guidelines have emerged, and some examples of modifications that are “readily achievable” include ramps, curb cuts, moveable furniture, widening doorways, installing grab bars, and posting Braille signage. Also note that even where modifications are not readily achievable, alternative measures must be undertaken (providing services at the door, home delivery, relocation of some activities).
Title I (Employment)
With respect to employment issues, there is a California counterpart to the ADA — the Fair Employment and Housing Act (FEHA) — which is intended to be more restrictive for employers than the ADA. As a result, a California employer who complies with the letter of the ADA may still find itself accused of disability discrimination under FEHA. For this reason, and because the essential elements of both sets of laws are very similar, this section will discuss the basic provisions of FEHA.
Discrimination in employment is only illegal where it is unfair or unreasonable. A school district has every right to discriminate against individual applicants for the job of bus driver who have poor eyesight. All the ADA and FEHA do in practice is prohibit discrimination against disabled employees who are able, with reasonable accommodation where necessary, to do the job.
Still, the rules governing how this plays out in practice can be confusing and intimidating. First, there are restrictions on the kinds of inquiries that can be made of applicants for employment. Under both the ADA and FEHA, it is unlawful for an employer to make any inquiry regarding any medical condition or disability before making a job offer. The employer may ask the applicant about his/her ability to perform the job and ask about the ability to perform the required job-related functions, but they may not ask specific questions about a medical condition, even an obvious one, which might affect the performance of those functions. After an offer has been extended, an employer may ask a disabled applicant to submit to a physical or even psychological examination, but only if all new employees in the same job classification are subjected to the same examination. Note that you are not permitted to deny employment to a disabled employee or applicant because of the impact of their disability on your insurance premiums.
The key to avoiding disability discrimination in employment is to ask yourself: “Am I treating this person differently because of their disability, or is my action something that I would do even if this person was not disabled?” For example, if an applicant for a receptionist position, a job that includes stocking paper for the copy machine, comes in for an interview in a wheelchair, you may ask whether he/she is able to lift 25-pound boxes of paper (if you would ask that of any applicant), but you may not ask whether his condition would prevent him/her from performing that task. A fine line, yes, but under FEHA, the latter is illegal and the former is not.
The ADA and FEHA require employers to be as sensitive to the possibility of discrimination based on disability as most of us are to the possibility of discrimination based on race, sex, or religion. The general personnel guidelines that you have already established in your office for preventing discrimination must now include the prevention of employment discrimination based on disability, applying the broadest possible definition of that term. Moreover, the same principles commonly employed to help prevent workplace discrimination based on other grounds can be used to help prevent disability discrimination in your office, and help defend lawsuits for disability discrimination when they arise.
For more information, contact FEHA at 800/884.1684 or www.dfeh.ca.gov; contact the EEOC, the federal agency charged with the enforcement of employment provisions of the ADA, at 800/669.4000 or www.eeoc.gov; or contact your attorney.
How can I avoid being sued under the ADA?
You can never completely protect yourself from being sued for a violation of the ADA. In recent years there has been an explosion of litigation under the ADA, much of which has been shown to be without merit. This means that no matter how conscientious you are, as long as you are a physician offering your medical services to the public, you bear the risk of being accused of violating the ADA. The good news is that, at least with respect to non-employment matters, there are some statutory restrictions that may limit the plaintiff’s right to recover “damages” in federal court, where plaintiffs are limited to injunctive relief (a court order requiring compliance with the ADA) and attorney’s fees. In state court, plaintiffs can recover damages and penalties. For instance, under the California Unruh Act, a property owner may be liable “for each and every offense for the actual damages and any amount that may be determined by the (fact finder) up to a maximum of three times the actual damages but in no case less than four thousand dollars ($4,000) and attorneys fees.” California Civil Code Section 52. More good news: According to a recent study by the ABA, 95% of all lawsuits and 80% of all administrative claims brought under the ADA are eventually decided in favor of the defendant. Despite these figures, insurance companies tend to settle these cases based on cost-of-defense considerations, as it has been found that an early settlement, with carefully drafted settlement agreements, is in the best interest of all involved.
Conclusion
It’s a brave new world out there. All physicians, except perhaps those with a hospital-based practice, must have at least a basic knowledge of the Americans With Disabilities Act. But even an excellent working knowledge of the Act and its requirements is no guarantee that you will avoid litigation. If a lawsuit is served on you or your office, the first thing you should do is notify your insurance carrier as these cases are usually covered by a commercial general liability (CGL) or employment practices liability insurance ( EPLI) policy. Your carrier and/or your attorney may wish to hire an ADA access consultant, an architectural expert who will assess the claimed deficiencies listed in the lawsuit and provide recommendations for changes to the facility to ensure compliance with the ADA standards. In the event that your insurance carrier settles the lawsuit, such a consultant will be able to help keep you from future claims. Likewise, your settlement agreement must be drafted in such a way that you have an opportunity in the future to cure any alleged defects. Although this would only protect you with regard to future claims by the same plaintiff, most plaintiffs in this area are repeat litigants.