Alternative Access
Effective communication between a physician and their patient is critical to a successful treatment relationship. Even in the best of circumstances, however, we know that physicians and patients often have markedly different impressions of what is said during an interaction or the meaning of information provided. When a language barrier is present, or a patient has a hearing or visual impairment, these communication challenges multiply. How physicians address such challenges has multiple legal implications.
The ADA
Title III of the Americans with Disabilities Act (ADA) prohibits discrimination against visually impaired and deaf and hard-of-hearing people in places of public accommodation. Included within the definition of places of public accommodation is any “professional office of a healthcare provider,” regardless of the size of the office or number of employees. Thus, the ADA applies to doctors, dentists, psychiatrists and psychologists, hospitals, nursing homes and health clinics, and all other providers of mental and physical care. Accordingly, the ADA requires hospitals to provide effective means of communication for patients, family members, and hospital visitors who are visually impaired, deaf, or hard of hearing.
Public accommodations must comply with specific requirements related to effective communication with people with hearing, vision, or speech disabilities. Specifically, unless a hospital or physician can demonstrate that providing communication aids or services would fundamentally alter the nature of the goods or services offered, or would result in an undue burden, a hospital or physician must ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.
Auxiliary aids and services relating to communications, in turn, include:
- Qualified interpreters;
- Note-takers;
- Transcription services;
- Written materials;
- Telephone handset amplifiers;
- Assistive listening devices;
- Assistive listening systems;
- Telephones compatible with hearing aids;
- Closed-caption decoders;
- Open and closed captioning;
- Telecommunications devices for deaf persons (TDDs);
- Videotext displays or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
- Qualified readers;
- Taped texts;
- Audio recordings;
- Braille materials; and
- Large-print materials or other methods of making visually delivered materials available to individuals with visual impairments.
The U.S. Department of Justice (DOJ) has issued memorandums outlining the obligations of physicians and other healthcare providers to provide auxiliary aids or services to people with hearing impairments. The memo recommended that healthcare providers consult with patients about appropriate auxiliary aids and services. The memo noted, however, that private providers are not required to accede to a patient’s specific choice of auxiliary aid or service as long as the provider satisfies his or her obligation to ensure effective communication.
In comparison, healthcare providers working at public entities or hospitals must have a conversation with patients as part of a doctor’s process in providing effective communication, and physicians must give primary consideration to the patient’s choice (see “Americans with Disabilities Act Title II Requirements,” above).
