• Physician Obligations Under the Americans With Disabilities Act Are Broader Than You Might Think
  • May 6, 2003
  • Law Firm: Miller Nash LLP - Portland Office
  • Most physicians know that they must take extra steps to accommodate patients with disabilities, but few know of their obligations to the disabled companion of the patients.

    Consider the following scenario: A patient comes to a physician's office to make an appointment. The patient sets the appointment and then informs office staff that the patient has a disabled companion whom the patient wishes to participate in the appointment. The patient requests that the physician provide auxiliary aids, at the physician's expense, during the appointment. Is the physician obligated to provide such aids?

    The legal issue centers around the requirements of Title III of the Americans With Disabilities Act of 1990 ("ADA"), 42 USC § 12182, the law that prohibits private businesses from discriminating based on disability in the services they provide to the public.

    The above scenario is more than just an interesting hypothetical. Only last year, in just such a situation, the United States Department of Justice ("DOJ") and two private plaintiffs entered into a settlement agreement with an Oregon physician group based on the group's alleged violations of the ADA and other nondiscrimination laws. As part of the settlement, the group was required to pay $25,000 to the private plaintiffs and implement a compliance plan with ongoing DOJ supervision.

    ADA Background
    Title III of the ADA provides that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." "Public accommodation" expressly includes virtually all types of health care providers. The law generally requires that public accommodations provide, at their own expense, auxiliary aids to disabled patrons so that patrons can fully enjoy the services offered. When a physician provides auxiliary aids to a patient, it is the physician, not the patient, who is entitled to choose the aid. The physician, however, must ensure that the type of aid used allows effective communication between the patient and the physician. What will constitute effective communication must be determined on a case-by-case basis, taking into consideration such factors as the importance, length, and complexity of the communication and the nature of the service provided. Physicians are held to a higher communication standard than most other public accommodations because of the special nature of the services they provide. For this reason, reliance on mechanical means such as written notes or the assistance of family members may be inadequate and subject a physician to liability under the ADA.

    Title III protects not only people with actual disabilities, but also people merely perceived to have disabilities and people who are discriminated against because of their relationship with disabled people. The ADA gives all these groups private rights of action for costs and injunctive relief. The law also allows the DOJ to bring suit. Additionally, the Rehabilitation Act, 29 USC § 794(a) (the predecessor to the ADA), and Oregon's own nondiscrimination law at ORS 659.425 allow private citizens to seek compensatory damages. Though these two laws are distinct from the ADA, there is sufficient overlap that violation of the ADA will very frequently constitute violations of the other two.

    Medical Services to Disabled Companions
    Nothing in Title III of the ADA or its implementing regulations directly requires physicians to provide any services to the disabled companions of patients. But the statute and regulations are very broadly worded. This has given rise to two types of claims -- one from the patient and one from the disabled companion. Both hinge on the physician's providing services in which a companion might reasonably be expected to participate. A prime example of this would be expectant parents; even though it is the mother who may technically be the patient, it is generally the case that the father participates in treatment too.

    A patient may argue that part of the services a physician provides to the patient is to include the patient's family and friends - who support and advise the patient - in the treatment process. Failure to provide auxiliary aids to a disabled companion therefore deprives the patient of the same companion support that other patients receive. This amounts to lesser service offered to the patient because of his or her relationship with a disabled person, an activity prohibited by the ADA. Additionally, the disabled companion may argue that the physician does not just offer services to patients, but also offers services to patients' companions (that is, the "service" of participating in patients' treatment). The companion then asserts that he or she is being denied the same service based on disability. It is important to note that these arguments would allow either the nondisabled patient or the disabled companion to individually sue the physician.

    The DOJ, with the recent Oregon settlement mentioned above, has made it clear that it has concluded that the ADA requires provision of auxiliary aids to patient companions virtually any time any patient requests them. Physicians should carefully assess any requests by patients for auxiliary aids for disabled companions and start with the presumption that such a request must be complied with to avoid ADA liability. Whether the courts will support such a broad interpretation of the law remains to be seen.