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Website accessibility lawsuits against medical clinics large and small are exploding. According to one 2020 study, as many as 98% of clinics may be vulnerable to financial loss. It is critical doctors understand the Americans with Disabilities Act. Bill Goren, JD, is THE ADA expert. We spoke with Bill directly – his insights are invaluable. There’s a lot to unpack, so we’ve divided our podcast into two episodes. Each episode is accompanied by a transcript, located below the podcast player. Miss Part 1? Listen to it here. With that said – here’s what doctors need to know about the ADA…

Jeff Segal, MD, JD

This is very interesting. Let’s migrate to a vignette from the real world. A patient is HIV positive. You’re a surgeon. You prefer not to do the case. You fear you’ll get stuck with a needle. What are your obligations? Next, imagine you, the surgeon, are pregnant. You believe any medication to address HIV if you are stuck with a needle will be a problem.

Bill Goren, JD

The HIV one is easy. There’s a Supreme Court case from 1998 called Bragdon versus Abbott. And in that case, the Supreme Court said that HIV seropositivity is a disability under the ADA. And this was long, long before the ADA was amended to broaden the definition of a disability. So, that’s an easy one.

The question would be whether the patient is a “direct threat” to the healthcare provider. A direct threat is defined as a significant risk of substantial harm to the health or safety of that employee or others, which cannot be eliminated or reduced by a reasonable accommodation.

I recently saw a case settle where a doctor decided to not treat someone with HIV.

The Department of Justice went after them. Keep in mind, the Department of Justice has as one of its priorities going after health care providers because health care providers are in the business of helping people be better. And it’s an easy mark if they are discriminating against people with disability. The HIV question is easy. The medical science is well known and HIV is a chronic condition. If you take universal precautions, a doctor is not in a situation that the ADA would call a “direct threat.” If you refused to treat an HIV positive individual under those circumstances, you’d lose that ADA lawsuit.

Jeff Segal, MD, JD

Let me ask you this. What if the surgeon is pregnant and she gets stuck? And here’s the reason I bring it up: One of the treatments would be post-exposure prophylaxis with medication, meaning that if one’s pregnant, now you’ve got a kind of a Hobbesian choice as to your next move.

Bill Goren, JD

A direct threat under the ADA has a very defined meaning. Both Title Two and Title Three regulations define a direct threat the same way. But if you want to really know what a direct threat is, read the School Board of Nassau County, Florida versus Arline and Chevron versus Echazabal.

These cases define a “direct threat.” And it’s not just some hypothetical idea. It’s a high standard. And that is one of the issues that you see all the time. And the Physician Recovery Programs (PRPs) are constantly looking at whether the person is, quote-unquote “safe to practice” when the legal standard is whether they are a “direct threat.” And they’re not at all the same thing.

Jeff Segal, MD, JD

I think in one of the Supreme Court cases the deciding factor was whether there was an objective measurement of risk – not a subjective measurement of risk, that is whether the physician perceived that they may end up getting stuck with a needle and ultimately contract HIV – but whether the literature supports the idea that the risk is high and every case is different. There are some cases where the likelihood of getting stuck with a needle is significantly higher than in other cases.

I think in many ways this would be a fact-specific situation, depending upon the type of patient you’re dealing with, the type of case that you would be doing, and the underlying risk of the individual physician or surgeon taking care of this patient. But I do hear what you’re saying. You’re saying that on its face, given no other facts, that if you turn away an HIV patient or any other chronic disease patient who is perceived to have a disability, the ADA will kick in and it’s something to be addressed.

Bill Goren, JD

Understanding the Supreme Court terminology is helpful. For reference, I’m looking at my book, Understanding of the ADA, the Fourth Edition, which came out in 2013. But I update that book in real-time on my blog. And if you look at the language from the Supreme Court, it indicates that “direct threat” has to be based on reasonable medical judgment, relying on the most current medical knowledge and all the best available objective evidence. And it also has to be based on an individualized assessment of the individual’s present ability.

You’re looking at the individual’s ability to meet the essential elligibility requirements of the program, with respect to Title Two, or to meet what the business does. That’s all from the Supreme Court. It’s a high standard.

Jeff Segal, MD, JD

It’s achievable. But the facts would have to be unusual to make it happen. With no other facts available, turning someone away with a chronic illness, if they have a disability, could put you in the crosshairs of being a defendant with the ADA.

Bill Goren, JD

Yes.

Jeff Segal, MD, JD

Let’s migrate to the world of obesity. The first question: Is obesity in and of itself considered a disability? And is obesity, compounded with other things, potentially considered a disability?

Bill Goren, JD

Obesity is one of the strange things in ADA jurisprudence where it requires an underlying physical or mental impairment. Obesity by itself is not considered a disability by the case law, with maybe one exception. Obesity requires a physical or mental underlying impairment to be considered a disability by the ADA. And if you can connect the two, then you have something. But if it’s just obesity by itself and you don’t have any allegation that the obesity is related to a physical or mental impairment, then you do not have a disability under the ADA.

Jeff Segal, MD, JD

So, imagine a patient comes to your office, and they weigh 500 pounds. Your dental exam table will accommodate, at least on the label, 450 pounds. What are your obligations in that circumstance? Obviously, you didn’t know that patient was coming into your office, but let’s assume the patient is obese, and there are no other compounding conditions. How do you handle that?

Obviously, the chair won’t hold the patient.

Bill Goren, JD

That’s a tricky one. You have a patient who is 500 pounds and your chair will only hold 450 pounds. The question I would ask: “Is there some way you can treat the patient without putting them at risk?” And if there are ways, I would explore them.

And if there are no options and you turn that patient away on account of their weight, then you may get a letter from that person. If you receive information suggesting the patient’s obesity is linked to a physical or mental impairment, then that person has a disability. You will have to figure out a way to accommodate them unless you can show fundamental alteration or an undue burden.

The cost of most disability accommodation ranges from $500 – $1500, with most not costing anything. So again, the cost is generally not an acceptable defense to obesity. But there’s no easy solution, especially if they show up unexpectedly.

Jeff Segal, MD, JD

To purchase a new dental exam table, you’d be looking at many thousands of dollars, and even then you wouldn’t be able to handle that patient until you ordered it, installed it, trained your staff in the use of it, so you wouldn’t really be fixing the problem at hand. The simpler solution, assuming everybody is comfortable with this, would just be to find a practice that has a dental exam chair that can accommodate such a patient. You could well imagine that would be an advantage to a practice – that is, the ability to care for larger patients.

And if patients knew about it, they could go to that practice for treatment.

Bill Goren, JD

Yeah. The reality is that people with disabilities have money to spend. And if you want to set up your business so that they don’t spend their money at your business, there is a market that you are not serving or cannot serve.

Jeff Segal, MD, JD

Let’s move to employees. We discussed treating a deaf patient. But what if your employee is deaf? What obligations do you have to provide equipment to help him or her do her job? Certainly, there’s a cost associated with that.

But there may be some tax benefits for participating. Help us understand that, please.

Bill Goren, JD

That’s all under Title One. And the question is as follows: Can the person with a disability do the essential functions of the job with or without reasonable accommodations? Next, what are the essential functions of the job? And that would be anything that is fundamental to carrying out the job’s purpose. And then you’re looking at what can you do to accommodate that individual. There’s all kinds of possibilities that might go into answering that question.

The number one thing you want to do in all of these issues, whenever you’re dealing with people with disabilities, is engage in the interactive process. Be a participant.

And I have a blog entry called “The Dos and Don’ts of the Interactive Process.” That’s a great thing to read. And that should be something, whenever you’re dealing with a disability, no matter what the context, you should be dealing with the interactive process and working with the person with a disability to try and figure it out together.

Jeff Segal, MD, JD

On the one hand, you’re trying to help, on the other hand, you can’t discriminate or pry unnecessarily. How do you how do you zig and zag so that you get it right?

Bill Goren, JD

That depends upon which title of the ADA you’re dealing with. It differs. With respect to employment, when a person puts you on notice that they may need accomodations, the employer does have the right to say, “OK, give me some documentation so I can understand the nature of the disability and then we can begin to strategize as to how to accommodate it.” You have that right under Title One. Title Two and Title Three work differently.

Under Title One, the employment provisions, you can ask for a reasonable amount of information and documentation to try and figure out just what is the disability and how you might accommodate it and engage in the interactive process.

Jeff Segal, MD, JD

Many physicians are not just business owners. Many are employees in health care systems and they’re often told to do something, or else face termination. And they may be forced into difficult situations. I’ll give an example. The health care system is concerned that the doctor is disruptive or that there may be an underlying problem. And they tell the doctor, you need to go away for a “fitness for duty evaluation.” Help us understand the obligations and the minefields.

Bill Goren, JD

Well, again, this is where it starts getting really complicated because if you’re an employee and your employer is telling you to do this or that, the employer has very defined rules. The ADA under Title One has a very defined system for dealing with pre-employment medical exams and disability-related inquiries and medical exams and disability-related inquiries after a conditional job offer and medical exams and disability-related inquiries once you’re an employee.

And the employer has to deal with those are things.

Once it goes over to the medical licensing boards they often delegate the responsibility completely to the Physician Recovery Program (PRP). But the ADA is not a duty that can be delegated. So, that’s a bit of a problem. You see the big issues when the Physician Recovery Program starts looking at it from the situation of quote-unquote, “practicing safely potential impairments.” None of those things are ADA paradigms

And so they are going about their business with a standard that is far below what the ADA requires. And that’s where you see a lot of issues. It gets complicated because you are trying to address an employment problem with Titles within the ADA that are not designed to solve employment-specific problems.

One of the things that I do, and this is a large part of my practice, is that I work with attorneys on their ADA-related cases as an ADA compliance expert. I help them figure this stuff out.

It can get really complicated. You are talking about, quote-unquote, “fitness for duty”, but that evaluation is not being done by employers. It is being done by other entities who may or may not be acting on behalf of the ADA – they may be acting at the instigation of the employer. The employer has their own obligations. That is the easier setup. If the employer makes a referral in a way that is not consistent with their ADA obligations, that’s the easy one. It’s much harder when it comes to the medical licensing board and a Physician Recovery Program.

Jeff Segal, MD, JD

I cannot tell you the number of times we’ve seen a complaint being filed to the Board of Medicine. The Board of Medicine says, “We need to make sure that you’re fit to practice, fit for duty.”

Then the Board says, “Hey, look, sign on the dotted line, go to the PRP program, let them do that analysis. I’m sure you’ve got nothing to hide.” Then the doctor says, “Well, I really do have nothing to hide. So, I’m going to go there. I’ll get cleared. It’s expensive, but I can get back to the office pretty quickly.” So, they go. And what do they learn?

Bill Goren, JD

They learn that they NEVER should have done it.

One of the things that’s really, really important for your listeners is that if you are getting referred into the PRP system, the very first thing you should do is get a lawyer, a licensing lawyer, and then the second thing you need to do is tell that licensing lawyer that there are ADA implications in play. Bring a knowledgeable attorney who knows this field. That can save you.

Jeff Segal, MD, JD

Repeat that, Bill. You’ve got to repeat that. This is one of the most important points of this podcast. If you’re on the receiving end of a board complaint and the suggestion is to go to the PRP program for a fitness for duty evaluation, what do they need to know?

Bill Goren, JD

They need to find a licensing attorney, first of all. And then they need to talk to that licensing attorney and tell the licensing attorney, “Listen, there are ADA implications here. You need to bring in knowledgeable ADA counsel to help me understand just what the ADA implications are so that you can put me in the best situation. I don’t want to be left spending tens of thousands of dollars and having my career ruined. Let’s get on top of this right away.”

That’s what you need to do. If you are a physician with a disability, I would be putting money aside so that you have that money to pay for your counsel and an ADA knowledgeable attorney. If you’re lucky, you might have your insurance pay for it. I’ve seen that happen, but that doesn’t happen a lot. Unfortunately, the economics and the law practice are such that you’re just going to have to budget this and deal with it.

But what you need to do the minute you get put into a PRP, before you even go in there, find licensing council and work with that licensing council to make sure that they understand that there are all kinds of ADA issues here, not just direct threats, but one of the things about the ADA that people may not realize (and the PRPs of the world certainly do not realize) is that the ADA defines a disability as a physical or mental impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment.

And there are a lot of mistakes going on because the PRPs of the world, the medical licensing boards of the world, and to some extent the employers, often do not realize that a disability includes someone with a record of impairment or someone who is regarded as having an impairment.

Jeff Segal, MD, JD

I think what you’re suggesting is that the ADA, in this case, may be your friend, your ally, it may level the playing field if you are shuttled or asked to be shuttled into the PRP program, because the mere fact that there’s a question of fitness of duty raises the presumption that there may be an underlying disability at issue, in which case leveling the playing field can only be helpful to you as as a doctor before you start spending, as you say, tens of thousands of dollars in a PRP type of program, correct?

Bill Goren, JD

Correct.

Jeff Segal, MD, JD

I tend to think of this as follows: Nobody likes paying lawyers. I get that. But I think of this as an investment for most doctors. Their license is their piece of paper granted by the government to print cash. And most of us have one skill and we are good at it. But it is hard to start over after losing the ability to practice medicine. You must protect it.

And if it’s in the crosshairs, you have to do everything humanly possible to keep it safe.

Bill Goren, JD

You’re absolutely right, Jeff. The thing I would add: A lot of people in the medical business, their work is who they are – it is their identity. So, if you lose your identity, you may be looking at other cascading issues. And a lot of it is unnecessary since a lot of it can be prevented, or you hope to prevent it, anyway. You can’t make guarantees in the law business, but if you get the licensing council and ADA counsel involved from the get-go, you stand a chance.

The reason why you need both is because licensing is very much an individual state by state thing. And you need to know the individual personalities on the ground. But then you also need to be dealing with the ADA. And then if the two work together, the licensing counsel and ADA counsel can strategize the best way to get the licensing folks to back off or maybe get the PRPs to discard the individual in the cross-hairs and move on.

Jeff Segal, MD, JD

Or just be reasonable.

The way I view it is that you want to bring as many chess pieces to the table as you can. You don’t want to just have one pawn, the pawn being you alone against the world, because that’s a tough fight. But if you’ve got talented licensed defense counsel or administrative law counsel, as well as ADA counsel, it’s like a Reese’s Peanut Butter Cup. You got some chocolate, you got some peanut butter, and the two of them together can make an effective case to get the other side to be reasonable, just to get a fair shake.

That way it works out. If it works out properly, you won’t be out of practice for weeks to months on end. You may never be out of practice. You may never have to shut your door at all. To me, that’s a great outcome and investment.

Bill Goren, JD

That is great. I think part of part of the problem is that I think doctors are just too willing to believe that people have their best interests at heart. And then I also wonder what doctors may be learning in medical school about lawyers. Lawyers are not always the enemy. Lawyers can be of help. I agree with everything you just said.

Jeff Segal, MD, JD

The key is just finding the right talent. I’ve got mixed feelings about PRP programs.

At one point they were designed to help solve a problem. My concern is that many of them have become cottage industries or factories where the Board shuttles doctors and other professionals to them and they make money by delivering, quote-unquote, “results back to the board.” And so if the PRP program said that everyone that got sent to it is perfectly fine and it requires no input or activity whatsoever, then the question is whether they keep using that same vendor.

In one sense, it concerns me that they’re almost designed to fail or not serve the stated mission and they often become a tool of abuse.

Has that been your experience, Bill?

Bill Goren, JD

The fundamental problem is a philosophical one. The ADA is designed to get people to the same starting line as a person without a disability, and then you see what the person can do. The PRPs of the world are designed to fix or cure the disability. And if it can’t be, to monitor you closely. And that’s a philosophical inconsistency with the ADA. The ADA basically says, “OK, you have a disability. So what?”

You figure out a way to moderate it, to mitigate it, to help correct it by yourself or by means of whatever prosthetic devices you need, or personal devices you need, or whatever reasonable modifications you may need from the applicable corporate entity. And then you can show us what you can do.

If you read the FSMB policy on physician impairment, it states clearly that disabilities are things to be cured or fixed, and you can’t cure or fix them, there’s a problem, and that’s not how the ADA works.

Jeff Segal, MD, JD

It sounds like the ADA focuses on function. Can you perform that particular job given reasonable accommodations?

My concern with medical boards and the licensing, and I’ve seen this on renewal applications, certainly in the past, and I think some of them are getting better, but they have asked in the past: “Have you seen a psychiatrist for a particular mental illness?” And the thing that’s odd is that if you’re a doctor advising a patient, you would say, “Seek help. If you’re ill, seek help, get care.” If you’re on medication and it’s treating your condition, wonderful.

But there’s a fear among doctors that disclosing that information is the kiss of death. You’ve now delivered information that the Board probably has no right to have and you’re being judged for having done whatever it takes to become entirely functional. What say you?

Bill Goren, JD

Yeah, and that’s a justified fear. That fear is perfectly justified. There has been litigation. I have a blog entry talking about this, for example. These renewal questions need to be focused on current behavior and exploring whether the person has a condition that prevents them from meeting the essential eligibility requirements of being a physician with or without reasonable modifications. For example, if you sent me something that asked, “Have you ever…?”, that’s not going to work.

You’re looking at language like, “current ability to do the particular practice of that individual”, you’re not looking at statements like, “Have you ever?”

The other thing that you see quite a bit of is the technical assistance memorandum put out by the DOJ for Title Two, which relates to the licensing board, and Title Three, which relates to the Physician Health Program. When you are assessing, the assessment should be narrowly focused on the issue. It shouldn’t be a deep dive and finding things that may or may not be there.

So again, these are all reasons why if you don’t have an ADA knowledgeable counsel involved from the get go, you’re going down an Alice in Wonderland Rabbit Hole, and it’s much easier to get on top of it early than it is to have spent tens of thousands of dollars and have your mental health jeopardized. I wish it wasn’t that way.

Jeff Segal, MD, JD

That is the cycle of doom, where you go it alone, hoping for the best, get deep, deep, then you’re out of your practice for a prolonged period of time.

No money coming in, depleting savings, and then you really need to hire decent counsel at that point. It’s this cycle of doom, prevented, of course, by getting the right people upfront. And hopefully, you never miss a day in your practice, continue to print money in your job, and that’s the better of the two outcomes.

Bill Goren, JD

And you get to do what you want to do. You spend a lot of your life investing in who you are as a person. You look at, you know, four years of college, four years in med school, and you look at your internship, several years of residency and a fellowship. That’s an awful lot of your life you’ve invested and to just throw that away because there’s an assumption out there that disabilities need to be cured or fixed. And that’s not the A.D.A.

That doesn’t make a lot of sense to me, either a psychological or a print money level.

Jeff Segal, MD, JD

Yeah, I share that assessment. Bill, this has been a whirlwind tour, I’m sure we could go through hours with this stuff. Why don’t we take a break and we’ll come back at some point down the road and revisit this topic. I cannot thank you enough. Before we leave, tell our listeners how they can find you, how they can find your blog site.

Bill Goren, JD

I’m at understandingtheada.com. One of the things I do want to point out is that I don’t spearhead litigation. I don’t have the personality for it. I just don’t enjoy it. And so what I wind up doing on rare occasions, I will co-counsel, but what I wind up doing more often than not is training and also working with attorneys on their ADA matters as an ADA compliance expert witness or expert consultant.

It’s really helpful to have counsel lined up before you get to me, because I will wind up telling you, “Listen, I don’t enjoy spearheading litigation.” For those in the licensing rabbit hole, you’re going to need licensing counsel anyway. I’m the internet accessibility expert. I can find people who are litigators. I can work with them. That’s something I want to make clear.

But understandingtheada.com is where you want to go, you’ll find everything you need to know about me on that website.

William Goren, JD

understandingtheada.com

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.

With the goal of making the ADA/Rehabilitation Act and related laws understandable so that employers, governmental entities, businesses, and even individuals understand what it means to comply with the ADA/Rehabilitation Act and related laws (related laws include, among others, the Air Carrier Access Act, the Fair Housing Act, and constitutional law), Mr. Goren provides consulting, counseling, representation, and training services to higher education institutions, public and private corporations, non-profit organizations, professional sports teams, government entities, and individuals. His approach favors prevention as a safeguard to costly litigation. Mr. Goren is also a FINRA arbitrator and a member of the Employment Arbitration Panel for CPR International Institute for Conflict Prevention and Resolution.

A licensed attorney in Georgia, Illinois and Texas, Mr. Goren also brings a deep, personal understanding of what it means to have a disability, equipping him with exceptional insight on how the ADA actually works. He is deaf with a congenital bilateral hearing loss of 65–90+ decibels, but functions entirely in the hearing world thanks to hearing aids and lip-reading. For reasons unrelated to his deafness, he uses voice dictation technology to access the computer.

Mr. Goren is the author of Understanding the Americans with Disabilities Act, Fourth Edition (published by the American Bar Association, 2013). A prolific writer and researcher, Mr. Goren has penned numerous other articles on the rights of persons with disabilities and publishes the Understanding the ADA blog — an ABA Top 100 Legal Blawg five consecutive years — which discusses current topics relating to complying with the ADA and related laws.

Mr. Goren has always been very involved in bar activities, including but not limited to: founder, founding member, and was the first president of the National Association of Attorneys with Disabilities (NAAD); the Federal Bar Association Diversity Task Force; American Bar Association’s Law Practice Management Section and its: client and marketing development committee, knowledge, strategy and productivity committee, and the legal technology resource center board; and the DeKalb County Bar Association. Previously, Mr. Goren has served on the Illinois Standing Committee on Disability Law, the Texas Bar Standing Committee on Disability Issues Committee, and was a co-chair of the Civil Rights/Constitutional Law committee of the Chicago Bar Association.

Mr. Goren received his B.A. from Vassar College, his J.D. from the University of San Diego, and his LL.M. in Health Law from DePaul University.

Jeff Segal, MD, JD