How is the ADA enforced? What obligations are expected under the ADA? Find out what your practice should know in order to remain compliant with this act.

Posted in Risk Management on Thursday, January 12, 2017

The Americans with Disabilities Act (ADA) provides a national mandate to eliminate the discrimination of individuals with disabilities. To remain compliant with the ADA, your practice must treat a patient or prospective patient who is disabled, pursuant to the guidelines discussed below, the same as you would treat a patient who is not disabled.

This means that your medical practice should have a process to identify if patients or prospective patients are disabled. The process can include:

Obtaining a thorough history for all patients, such as:

• Chief complaint (reason for visit)
• Current and past clinical history
• Family and social history
• Assessment of the patient’s mental status to determine legal consent competency

Having a specialist consult with the patient’s primary care doctor, or with the referring doctor, to confirm and clarify:

• The patient’s history of past and present clinical care, and circumstances for the present referral
• Physical and mental disabilities and competency
• Use of or need for restraints or other strategies for effective care
• Sedation implications
• Drug-to-drug interactions

If a disabled patient requires a procedure for which you would normally refer to a specialist, you may refer the disabled patient without regard to the ADA. The ADA does not change the standards for the clinical necessity of a referral.

How does the ADA define disability? 

The term “disability” is broadly defined under the ADA to include individuals who have or are considered to have physical or mental impairments that substantially limit one or more of that person’s “major life activities.”

Major life activities include the ability to care for oneself and perform manual tasks such as walking, seeing, hearing, speaking, breathing, learning and working.

Disabilities can include:

• Orthopedic, visual, speech and hearing impairments
• Cerebral palsy, epilepsy, muscular dystrophy and multiple sclerosis
• Cancer, heart disease and diabetes
• Mental retardation, emotional illness and specific learning disabilities
• HIV (whether symptomatic or asymptomatic) and TB
• Drug addiction and alcoholism

How is the ADA enforced?

The U.S. Attorney General is authorized to investigate complaints and bring a civil action in any situation where a pattern or practice of discrimination is believed to exist, or where a matter of general public importance is raised.

In a civil action, the court may grant temporary or permanent injunctive relief, award monetary damages to persons adversely affected by the discriminatory practices, and, to vindicate the public interest, assess a civil penalty against the entity, in amounts up to $100,000.

Federal ADA laws may be in addition to state and local accessibility laws, which are also subject to local enforcement efforts and private actions by citizens.

It should be noted that it is unlawful to retaliate against or coerce in any way any person who made, or is making, a complaint under the ADA or is otherwise exercising their rights under the law.

What obligations are expected under the ADA? 

Below are some examples of what is expected under the ADA:

• Provide goods and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity.
• Eliminate unnecessary eligibility standards or rules that deny individuals with disabilities equal opportunities.
• Make reasonable modifications in policies, practices and procedures that deny equal access to individuals with disabilities.
• Furnish auxiliary aids to ensure effective communication, unless an undue burden or fundamental alteration would result.
• Remove architectural and structural communication barriers in existing facilities where readily achievable.

Additionally, in providing goods and services, a public accommodation may not use eligibility requirements that exclude or segregate individuals with disabilities, unless the requirements are necessary for the operation of the public accommodation. Requirements that tend to screen out individuals with disabilities are also prohibited.

Safety requirements may be imposed only if they are necessary for safe operation and based on actual risks – not on speculation, stereotypes or generalizations about individuals with disabilities.