The Future of Disability in America (2007) / Chapter Skim
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Appendix D The Americans with Disabilities Act in a Health Care Context
Appendix D The Americans with Disabilities Act in a Health Care Context
Pages 426-452
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From page 426... ...
When the focus is on the relationship between civil rights and health care financing, the juncture can be particularly rocky because of the inherent contradictions between health care financing laws on the one hand and the law of civil rights on the other. At their core, the web of laws that together comprise the law of health care financing rests heavily on the law of insurance, which in turn emphasizes the legality *
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From page 427... ...
Part III considers the ADA in the context of health care access, while Part IV explores the ADA and the law of health care financing. The paper concludes with a discussion of options for ensuring access to the civil rights protections conferred under law.
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From page 428... ...
2 THE FUTURE OF DISABILITY IN AMERICA remedy. In situations involving accessible care, therefore, the major social challenge is how to create remedies that foster accessibility without placing an undue burden on the program.
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From page 429... ...
The end result is a civil rights statute of broad applicability, particularly compared with laws that prohibit discrimination on the basis of race and national origin, which are discussed further below. Persons protected under the ADA are "qualified individuals with a disability."10 A disability under the terms of the Act is a physical or mental impairment that substantially limits one or more major life activities or a record of having such an impairment or being perceived by others as having such an impairment.11 Qualified persons with disabilities are persons who can perform the essential functions of employment12 with or without accommodation or who meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.13 Several titles of the ADA are directly relevant to this analysis.
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From page 430... ...
23 U.S. Department of Health and Human Services, Office of Civil Rights, Your Rights Under the Americans with Disabilities Act.
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From page 431... ...
661 (2001) (Title III)
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From page 432... ...
Department of Justice retains enforcement authority over health care entities, which under ADA Title III are places of public accommodation; the regulations specify no formal role for other federal agencies.34 Investigation by federal agencies can result in the filing of enforcement complaints by the U.S. Department of Justice on behalf of affected individuals and the federal government itself.
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From page 433... ...
in certain respects, most notably in state laws related to hospital emergency care and, ultimately, in the case of federal law governing the conduct of hospitals, specifically, the Hospital Survey and Construction Act of 1946 (the Hill Burton Act) and the Emergency Treatment and Labor Act.41 Earlier, Title VI the Civil Rights Act of 1964 had established a nondiscrimination principle in the case of health care services furnished by private providers receiving federal funds, with a non-statutory exception in the case of private physicians receiving payments under Medicare Part B only.42 At the same time, Title II of the 1964 Act, which prohibited discrimination by public accommodations, used a definition of public accommodation that did not reach health care 38 Oliver Wendell Holmes, Jr., The Common Law, 1881.
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From page 434... ...
No legislative history accompanies this significant expansion of the concept of "place of public accommodation." Indeed, discussions by the author with persons involved in the drafting of Title III suggests that, perhaps in a sign of the times, by 1990 it simply did not occur to anyone (including the American Medical Association, which supported the law) that health care (which figured prominently in the minds of disability advocates as an example of discrimination and was so identified in the Preamble to the statute)
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From page 435... ...
unless a health care provider can demonstrate that making such modifications would "fundamentally alter" the nature of the service.49 It also would be discriminatory for a health care facility to fail to treat an individual "in the most integrated setting appropriate to the needs of the individual."50 It would also be a violation of the Act to "take such steps as may be necessary to ensure" that qualified individuals with disabilities are not "excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services," unless the facility can demonstrate that such steps would "fundamentally alter" the nature of the service or would "result in an undue burden."51 Title III also provides, however, that "nothing .
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From page 436... ...
The concept of an "undue burden" is a requested modification that poses "significant difficulty or expense."58 In health care, where the cost of the service is high to begin with and the importance of effective communication is great, the case law suggests some skepticism on the part of courts regarding the claim when the issue is interpreters, although the courts have a greater willingness to consider the defense when removal of architectural barriers in existing construction is the issue. For example, in Majocha .
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From page 437... ...
Noting that federal guidelines on auxiliary aids specifically recognized the importance of effective communication in a health care context, the ruling of Court of Appeals in this case underscored the high bar faced by health care providers that seek to challenge requested reasonable accommodations under "undue burden" theory. In contrast, Mannick .
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From page 438... ...
The hospital agreed to renovate patient rooms, create new accessible patient rooms, develop and implement barrier removal plans, purchase accessible equipment, review hospital policies and train staff, and appoint an ADA compliance officer.64 The Access Board focuses on architectural barriers that arise in the "design, construction, and alteration" of buildings and facilities.65 The specific obligations of hospital and health care clinics and facilities to adapt their health care services to the needs of patients through the use of specialized equipment and supplies (e.g., appropriate exam tables or modified diagnostic equipment, such as mammography machines suitable for use with patients in wheelchairs) would appear to be precisely the type of interpretive guideline that could be developed by the Office for Civil Rights of the U.S.
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From page 439... ...
Thus, for example, the failure of a provider to adapt a health care setting to the needs of patients with physical or hearing disabilities could constitute evidence not only of an ADA violation but also of a violation of state medical liability law. Although the potential for this type of legal parallelism is mostly speculative, one recent case illustrates how the failure to make reasonable modifications in health care services can lead to medical injury actionable 66 Sara Rosenbaum and Joel Teitelbaum, "Civil rights enforcement in the modern health care system: reinvigorating the role of the federal government in the aftermath of Alexander Sandoal," Yale J
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From page 440... ...
Valley Medical Center,68 the hearing impaired patient, who suffered from severe abdominal pain, was unable to receive appropriate emergency care at the defendant hospital because of inadequate accommodations in the form of written notes and a nurse who knew "some" sign language. The court concluded that the claim fell well within the legal standards governing the obligations of hospitals; because medical injury was alleged, the case might have as plausibly been brought as a negligence case.
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From page 441... ...
Insurance discrimination cases are heavily evidence driven and turn on how courts interpret and apply the ADA and other disability statutes (such as Section 504 of the Rehabilitation Act of 1973) to what they perceive to be the critical facts of the case.
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From page 442... ...
Olmstead and Discriminatory Allocation of Resources Within an Established Plan Design A signature case in the field of discrimination in the administration of insurance is Olmstead L.C.71 In Olmstead, plaintiffs mounted an ADA Title II claim of discriminatory administration of a public health care financing program. The fact that the public financing scheme involved Medicaid added a critical dimension to the case, since the defendant, the administrator of the public program, could present a theory of the case stating that what plaintiffs sought was more coverage, not fairer administration of existing coverage.
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From page 443... ...
APPENDIX D mined that institutional care was not medically justifiable. The state Medicaid plan covered more than 2000 "home and community based services slots" under a special federal law permitting states to extend home coverage to persons at risk for institutional placement, but the legislature had funded only a fraction of the federally approved services.
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From page 444... ...
THE FUTURE OF DISABILITY IN AMERICA at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.75 Within the context of the ADA, the U.S. Supreme Court arguably did what it could to avoid breaching the limits imposed by the fundamental alteration defense.
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From page 445... ...
APPENDIX D earlier decision, Townsend v. Quasim,80 the issue was the improper administration of benefit design when the state forced medically needy individuals into nursing facilities while extending community services to categorically needy persons and was thereby discriminatory on its face.
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THE FUTURE OF DISABILITY IN AMERICA for institutional programs remained constant, while the institutionalized population declined by 20%. Today, the statewide institutionalized popu lation is less than 1,000.
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APPENDIX D full.
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Choate,87 a 20-year-old U.S. Supreme Court decision that arose under Section 504 of the Rehabilitation Act of 1973, the predecessor to ADA Title II.
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From page 449... ...
504 does not require the changes respondents seek. In enacting the Rehabilitation Act and in subsequent amendments, Congress did focus on several substan tive areas -- employment, education, and the elimination of physical barriers to access -- in which it considered the societal and personal costs of refusals to provide meaningful access to the handicapped to be particularly high.
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From page 450... ...
The case opened with this startling introduction: Mutual of Omaha appeals from a judgment that the AIDS caps in two of its health insurance policies violate the public accommodations pro vision of the Americans with Disabilities Act. One policy limits lifetime benefits for AIDS or AIDS-related conditions (ARC)
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From page 451... ...
Such guidelines, even if they are not actively enforced by federal investigators, can serve an immensely useful process in guiding health care service providers and insurers on questions of corporate compliance, a major focus of all health care entities in the modern world. Neither the U.S.
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From page 452... ...
While the Access Board sets standards for the modification and construction of facilities, these standards do not speak to internal equipment and operations that play an equal role in access, nor is there language guidance for health services providers in an ADA context that is comparable to the guidance that applies to persons with limited English proficiency. Robust ADA guidance regarding public and private insurance and employee health plan administration is also lacking.
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