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Massachusetts state laws and regulations that affect your medical practice

The Americans with Disabilities Act (ADA) was enacted in 1990 to provide a clear and comprehensive prohibition of discrimination on the basis of disability. This sweeping prohibition broadly applies to practices that may result in discrimination against persons with disabilities.

1. Should physicians be concerned with complying with the mandates of the ADA?

Yes. The broad prohibitions do apply to physicians and the manner in which they practice. Specifically, the ADA applies to physicians in their roles as providers to the public (their patients) and in their roles as employers.

The ADA addresses certain requirements that must be met by those whose facilities are used by persons with disabilities. Among the mandated requirements are the removal of architectural and communication barriers.

Architectural Barriers

Facilities that were in existence at the time the Act was passed in July, 1990 and were built with certain "architectural barriers" to entryways, to restrooms, etc., must be adapted and made usable by disabled people. Facilities constructed after January 26, 1992 must have been designed specifically to be readily accessible and usable.

The removal of architectural barriers is only mandated should it be "readily achievable." In other words, such alterations will only be mandated if they can be accomplished without "significant, burdensome" expense.

Communication Barriers

Physicians must reasonably accommodate the communicative needs of their patients with hearing or visual impairments. However, accommodating the needs of these patients should not create any "undue burden" on the physician.

B. Employers

As employers, physicians must comply with the ADA prohibitions against discrimination in the workplace addressed to potential employee-candidates with disabilities. Physicians with 15 or more employees are currently subject to these requirements.

Among the specific prohibitions are prohibitions on the types of questions which may be asked of and testing which may be performed upon a prospective employee prior to an offer of employment. Further information on the ADA or on these issues can be obtained from the Equal Employment Opportunity Commission.

2. Are physicians responsible for all costs associated with these improvements?

Yes. However, physicians can recoup some of their costs through tax credits. Generally, a tax credit of fifty percent (50%) of expenditures, associated with compliance with ADA mandates and not exceeding $5,000, can be obtained by those businesses that: 1) have less than $1 million in gross receipts; and 2) have fewer than 30 full-time employees.

3. Must physicians provide a hearing interpreter for deaf and hearing impaired patients?

The AMA has stated the following with respect to deaf and hearing impaired patients:

" . . . The ADA's prohibition against discrimination on the basis of disability includes an obligation to make reasonable accommodations to meet the needs of patients with disabilities. This has been interpreted by some as creating a requirement that physicians provide and pay for the cost of hearing interpreters for their patients who are hearing disabled. While there will be instances where a physician must provide a hearing interpreter, there is no hard and fast requirement for the provision of such services.

The ADA requirement to provide "auxiliary aids and services" includes a responsibility of making aurally delivered materials accessible for hearing disabled patients. This may be accomplished through multiple means, including qualified interpreters, note taking, written materials, and telecommunications devices for deaf persons. The first step is to determine, in consultation with the patient, the appropriate auxiliary aid or service. In some instances, such as when a conversation is particularly important relative to the care and services being provided, or is particularly complex, effective communication may only be ensured through the use of a qualified interpreter. No special accreditation is needed to meet ADA standards, and qualified interpreters may include: family members or friends, as long as they are effective, accurate, impartial (especially in personal or confidential situations), and an acceptable choice to the patient; personnel from the practice or facility; or interpreters from interpreter services.

The ADA does not mandate the use of interpreters in every instance. The health care professional can choose alternatives to interpreters as long as the result is effective communication. Alternatives to interpreters should be discussed with hearing impaired patients, especially those not aware that such alternatives are permissible under the Act. Acceptable alternatives may include: note taking; written materials; or if viable, lip reading. A health care professional or facility is not required to provide an interpreter when:

• It would present an undue burden. An undue burden is a significant expense or difficulty to the operation of the facility. Factors courts use to determine whether providing an interpreter would present an undue burden include the practice or facility's operating income and eligibility for tax credits, and whether it has sources of outside funding or a parent company. Courts also consider the frequency of visits that would require the services of an interpreter. However, the single factor of the cost of an interpreter exceeding the cost of a medical consultation generally has not been found by the courts to be an undue burden; or

• It would fundamentally alter the nature of the services normally provided. For example, in sensitive situations, utilizing a family member as an interpreter, or an interpreter not affiliated with the practice or facility, may be inappropriate.

Where use of an interpreter would fundamentally alter the nature of the services provided or constitute an undue burden (difficult elements to prove in a court action), the physician is permitted to refer the patient to another physician, if alternatives are not viable.

The health care professional determines whether an interpreter or other alternative is necessary to ensure effective communication. Some circumstances will call for the use of a qualified interpreter more than others. For example, a consultation with a hearing impaired person for a routine matter may warrant only use of a pen and paper as an alternative. However, more complicated situations with serious ramifications may necessitate the use of a qualified interpreter.

Although the health care professional makes the final decision regarding use of an interpreter of other alternative, the patient's choice should be given primary consideration. Also, the reasonableness of a determination not to provide an accommodation may be challenged in court in an enforcement action. If there is a disagreement between the health care professional and the patient over the need for a qualified interpreter, the effectiveness of each viable option should be discussed. Factors or options for consideration include whether an option presents an undue burden to the practice or facility, and what option or options would ensure effective communication.

Courts have found an ADA violation where the health care professional decides not to use an interpreter and there is evidence that the method used did not result in effective communication.

The health care professional or facility responsible for the care must pay for the cost of an interpreter. Health care professionals or facilities cannot impose a surcharge on an individual with a disability directly or indirectly to offset the cost of the interpreter. The cost of the interpreter should be treated as part of overhead expenses for accounting and tax purposes. Tax relief is available for expenditures made toward interpreters. The Internal Revenue Service may allow a credit of up to 50% of cumulative eligible access expenditures made within the taxable year that exceed $250 but do not exceed $10,250. This tax credit may be applied to reasonable and necessary business expenditures made in compliance with ADA standards in order to provide qualified interpreters or other accessible tools for individuals with hearing impairments."

Prepared by the American Medical Association, Office of the General Counsel, Division of Health Law, Copyright 1998 American Medical Association

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

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