Lawsuit Tsunami: Understanding the ADA So YOU Don’t Get Sued (Part 1)

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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. With that said – here’s what doctors need to know about the ADA…

Jeff Segal, MD, JD

Greetings everyone, this is Dr. Jeff Segal, I’m the host of the Medical Liability Minute podcast, and I’m CEO of Medical Justice. We’re joined today by Bill Goren. Let me tell you about Bill, because we’re going to do a deep dove into the ADA – the Americans with Disabilities Act.

And I know what everybody’s thinking. “Oh, no, the ADA. I don’t want to talk about that.

Let me tell you something – you will receive so many pearls of wisdom today that you will be paying me with gold for all of this information. Our discussion will teach you how to avoid becoming a defendant. Let me give you a little bit of his background. Bill has a law consulting practice. He also has a blog site, as well as a website called Understanding the ADA.

This is an award winning website, dedicated to helping visitors understand the ADA so they can comply with the law. He does consulting, counseling, representation and training services involved in compliance with the ADA, the Rehabilitation Act of 1973, et cetera, et cetera. He understands on a visceral level how the ADA works. He is deaf with congenital bilateral hearing loss of 60 to 90 plus decibels, but functions entirely in the hearing world thanks to hearing aids and lip reading.

For reasons independent of his deafness, he also uses voice dictation technology to access his computer. I can also add that he has trained his miniature poodle to act as a hearing dog while he practices virtually. Welcome, Bill. Glad you’re with us today.

Bill Goren, JD

Thank you, Jeff. I’m glad to be here.

Jeff Segal, MD, JD

Before we get started, you need to explain to me what your dog is capable of doing.

I know canines can do so many different things, but this is the first time I’ve heard that a dog can actually supplement and assist a hearing impaired individual.

Bill Goren, JD

Service animals can partner with people living with all kinds of disabilities. You most commonly see them with people in wheelchairs, people who are blind, etc. People living with epilepsy can also benefit from the presence of a service animal. People with hearing loss frequently use the service dog in their homes and don’t necessarily need it outside of their homes because they function as a hearing person (like I do) or they know ASL (American Sign Language), and they use ASL outside.

I practice law virtually and I have trained my dog to alert me if there is a disturbance or noise outside of the house. And he’s a poodle, and poodles are really smart. He’s here with me right now – and if you see him tear out of here, it is because he’s heard something. It’s really helpful because I can then be aware of things that I might not otherwise be aware of, such as a doorbell or the delivery of a package. Things like that.

I do presentations on laws specific to service animals, so if the audience is interested (I don’t want to bore anyone), I can dive into that.

Jeff Segal, MD, JD

Let’s keep it simple. For example, what is the ADA? Explain to me, what is the Americans with Disabilities Act? We’ve all heard of it, but I don’t think we understand it viscerally.

Bill Goren, JD

The Americans with Disabilities Act was signed by Timothy W. Bush in 1990. It was hailed as the Civil Rights Act for people with disabilities. It was based on the Rehabilitation Act of 1973, which is a law that prevents discrimination against people with disabilities. And it is divided into several titles. Title One is employment. Title Two is accessing non-federal governmental entities. Title Three is accessing places of public accommodations. Title Four is telecommunications. Title Five is miscellaneous matters. And the thing that makes the ADA so incredibly difficult, especially in the physician’s space, when they are dealing with Professional Recovery Programs (PRPs), is that it is likely a doctor will have to deal with all of these titles at once.

We see lots of challenges specific to professional recovery programs. And each title is regulated by a different entity. The EEOC regulates Title One. Title Two and Title Three are regulated by the DOJ. It’s complex. Just because you’re familiar with one title doesn’t mean you’re familiar with the other titles, and that’s something many doctors do not know. I focus on the ADA and related laws. That includes Fair Housing Act, Air Carrier Access Act, etc. Some of the laws that come into play are constitutional laws.

Jeff Segal, MD, JD

You started by saying that if you accept federal funds, that is a threshold issue. Most practices accept Medicare, Medicaid, et cetera. But there are some practices that are entirely cash-pay. They don’t accept a penny from the federal government. But you’re suggesting correctly that the ADA still applies – that the office is an area of public accommodation.

Help us understand the details.

Bill Goren, JD

The Rehabilitation Act, which the ADA is based upon, does apply if you take federal funds. The ADA expanded the Rehabilitation Act, empowering it to go beyond federal funds. If you’re an employer of 15 or more people, you are subject to the employment provisions. If you’re a non-federal governmental entity, you’re subject to the Title Two provisions. And if you’re a place of public accommodation, which is defined in the statute, you are subject to the Title Three provisions.

Jeff Segal, MD, JD

Just a place of public accommodation would be many, if not most businesses. If somebody walks into a medical office, arguably ADA applies whether you have one employee or 10 employees, as it relates to the patients. Is that a fair statement?

Bill Goren, JD

It is. A place of public accommodation is defined in 42 United States Code 12181, paragraph seven. If you look that up, you’ll see there is a list of categories that are places of public accommodation.

The things that are in the categories are not exclusive – but the categories are exclusive. And one of the things listed in that particular statute is a doctor’s office.

Jeff Segal, MD, JD

So, that’s easy. It’s easy that if you are a doctor’s office open to the public, it is a place of public accommodation. The ADA, certainly one of the chapters, applies to it. You have to comply, correct?

Bill Goren, JD

Correct.

Jeff Segal, MD, JD

Let’s keep marching. What else does the ADA imply? It was well-intended. It was designed to level the playing field so that people with disabilities could be provided reasonable accommodations to excel in the workplace, among other places. With the benefit of hindsight, do you think that the law has achieved its stated goal? Do you think we need more enforcement or less enforcement? We now have seen so much activity over the years.

And how should doctors think of this? Is it helpful? Is it harmful? Or like the most lawyerly answer, “It depends.”

Bill Goren, JD

Well, first, I want to correct a misimpression from the question that you may not have intended. The ADA is not strictly an employment statute. It’s an employment statute if you have 15 or more employees. But if you are accessing non-federal government entities such as medical licensing boards and health care licensing boards, it doesn’t matter how many employees you have on board.

And if you are a doctor, you could be on either side of it. You could be architecturally inaccessible. Or perhaps you have a website that’s inaccessible. Or you could have a patient that is trying to come into your office and the patient is not given an interpreter. And if you try and get by without one, you’re asking for trouble.

The ADA is much more than employment. It’s going to cover a myriad of things, and it may cover things in different ways. For example, the medical licensing board would be subject to Title Two, but most Physician Recovery Programs (PRPs) are subject to Title Three. And it can get really complicated because you are dealing with multiple titles at once.

Jeff Segal, MD, JD

Let’s go through some vignettes – some examples of the ADA in action. Let’s assume in this vignette that your patient (whom you’ve never seen before) is deaf. Do you have an obligation to bring in an interpreter who speaks sign language? If so, who pays? What about using a family member? How should practices think about this issue?

Bill Goren, JD

With respect to a deaf individual, Title Two and Title Three of the ADA have something called Effective Communication Rules, and they are in the code of federal regulations. The titles differ in small ways.

And in this whole area, you’re looking for legal compliance. You should read a case out of the Eleventh Circuit called Silva versus Baptist Health South Florida. And what that case will tell you is that when you have complicated information going back and forth between you and a culturally deaf individual, you must be careful. For the audience’s awareness, a culturally deaf individual is defined as someone who communicates via American Sign Language (ASL) and has 65 to 95 plus decibel hearing loss.

If you are a physician and you don’t provide an ASL interpreter for a patient who has asked for it, that is a problem. I worked with a litigator here in Atlanta on such a case and we were fortunate to get a settlement for the client. But you have to pay for the interpreter. You have to do it. You can’t impose a surcharge on the deaf client to bring an interpreter.

The regulations and case law are quite clear that a family member is not going to cut it either. And that can be an issue in and of itself. Take the case that I was involved in as an example. The council and I wound up spending some money on the interpreter in order to best represent our culturally deaf client. And that’s just the way it goes. Don’t try imposing the cost on the deaf individual. That won’t work. And with respect to medicine, because of the complex information being exchanged, if someone is asking for an ASL interpreter, get that person an interpreter. And make sure that the interpreter is qualified to interpret and transmit complex medical information.

When I deal with a culturally deaf individual, I tell them that if they don’t get an interpreter for that doctor’s appointment, they need to walk away because it creates too many problems if they don’t. But the effective communication rules don’t just apply to hearing. Any disability that deals with communication would be covered under that effective communication rule.

Jeff Segal, MD, JD

These are complaint-driven, so ultimately it is viewed from the vantage point of the patient. If the patient is entirely comfortable with a family member and they have a long-standing relationship and are able to effectively communicate complex information, there may be circumstances where that would be OK. Is that correct?

Bill Goren, JD

No, I disagree. I think that’s a terrible practice because you are now putting a family member in a delicate position. The interpreter needs to be objective. The interpreter must effectively communicate the needs of the deaf patient. A family member is likely not capable of translating medical information in the same way an ASL interpreter can translate that information. You can look at the regulations, and the regulations say that unless there’s some kind of extreme emergency, family members should not be involved.

I think it’s negligent. And if you read the Silva versus Baptist Health South Florida case, they frown on that, too. If I was a physician treating a culturally deaf individual who is ASL, I certainly would find that ASL person and have them in the room with me. I would not be passing notes back and forth. Most culturally deaf individuals are not reading beyond the fourth-grade reading level, so passing notes back and forth is not going to be effective.

Jeff Segal, MD, JD

I’m assuming there’s some obligation for the patient to ask in advance. Meaning they’ve got to let the practice know that there’s a need for an ASL interpreter. The practice can’t be Nostradamus.

Bill Goren, JD

Correct – and hearing-impaired individuals are pretty aggressive about letting the practice know beforehand. But in the event they do not, there is nothing wrong with asking ASL patients to notify the practice in advance and allow the practice a reasonable amount of time to contact an interpreter. Because the reality is that such an interpreter can be hard to find on short notice

Jeff Segal, MD, JD

And just to educate our listeners, what does that typically run? I’m sure it varies depending upon what part of the country you live in, but what would be a normal range of cost for securing an ASL interpreter for 15 minutes, 30 minutes, or an hour?

Bill Goren, JD

They generally run in hour increments. They don’t do less than an hour and it’s going to depend from place to place.

Jeff Segal, MD, JD

I do remember one practice saying, “Oh, the cost is greater than what we’ll collect from insurance.”

But the flip side of that argument is this is not a particularly frequent occurrence. It’s an infrequent occurrence.

And it really is the cost of doing business. Ultimately, it is the law. You have to follow the law. And the truth is that most of your patients do not fall into this category. I hear the complaint, but most of the time, this interaction is just a one-off. This is not a common issue in a practice. In other words, just eat the cost and move on.

It’s not the end of the world.

Bill Goren, JD

You are right – this is not something that’s going to happen all the time. The second thing to realize is that the ADA does have a standard that excuses businesses from accomodating a disability – it’s called an “undue hardship” in Title One and an “undue burden” in Title Two and Title Three. They are both high standards. “This costs me money” is not a sufficient excuse to invoke either. To pass for either standard, the act of accomodating a disabled individual would have to basically bankrupt your business. You look to the entire resources of the entity (for our purposes, assume the entity is a medical practice) to see whether the accommodation is going to cost too much. Put simply: Unless hiring that ASL interpreter is going to bankrupt your practice, you’ll have to hire that ASL interpreter.

You’re going to have to spend that money. As you said, it is not something that is going to happen often. You may treat a culturally deaf patient or a patient with related communication difficulties. But it won’t happen often. And the ADA sets this up so that it is the cost of doing business.

Recall the case I just described where my colleague and I represented a culturally deaf client. We had to spend some money on interpreters, and we had to pay out for that, and we had to eat that cost – but that’s the cost of doing business. That’s how the ADA sets itself up.

Jeff Segal, MD, JD

And I’m assuming, and I may be wrong, that the inability to speak English as a native language and the requirement to potentially bring in an interpreter who speaks the other language, for example, Mandarin or Turkish or whatnot, that’s not part of the ADA. Or is it?

Bill Goren, JD

That’s correct. It’s not part of the ADA. That could be part of the Civil Rights Act, but that’s not part of the ADA.

Jeff Segal, MD, JD

Interesting. You still need to pay attention to it. It’s just a different law and different enforcement. But the gist is still the same – effective communication. If someone comes into the practice, there’s an obligation to facilitate effective communication. And sometimes that means eating the cost of an interpreter, regardless of whether it’s due to a disability or to proficiency in a foreign language.

Bill Goren, JD

I have a graduate degree in health law, and one of the principles in both law and medicine is informed consent. And how do you get the person to make an informed consent if they can’t understand the information they’re told? I don’t know how you answer that question. If they’re not given the information they need to make a decision, that’s a problem.

Jeff Segal, MD, JD

One of the guiding principles is that informed consent is more than a document. It’s a process and the process depends upon effective communication.

Let’s migrate into the domain of something almost every practice has now – a website. And over the past year, we’ve had two or three doctors (and the year is early when we are recording) whose websites were beaten up as not being compliant with the ADA. Specifically, there were complaints the website was not sensitive to the needs of the vision impaired.

I know that this is a work in progress and is evolving, but talk about that for a moment. Again, you’ve got a website which is the billboard to the public of what a practice can and will do. And the question is: “What does a practice need to do to ensure that their website is accessible by the vision impaired?” Is it the prospective patient’s problem? Is it the practice’s problem? Is it everybody’s problem?

Bill Goren, JD

First of all, I just posted a blog related to this topic on my blog, Understanding the ADA, just a short time ago. And it isn’t always the visually impaired person that has a problem with website accessibility. A hard-of-hearing individual could have similar challenges. For examples – if your website displays videos, do those videos have closed captions? Or an individual with limited movements of their joints may depend on a screen reader to navigate your site, and if the website is not optimized for that, that individual will struggle to navigate it.

The challenges are varied. What does it mean to have an ADA-compliant website? The problem is, in fact, there isn’t a clear answer. The Obama Administration proposed regulations regarding the ADA and website development, and then President Trump was elected and he took those regulations down. There is a legal standard called “meaningful accessibility.” There’s also a preventive law matter called “web content accessibility guidelines”, which is put together by a worldwide consortium – WCAG 2.1. And that’s the gold standard.

But it doesn’t substitute for meaningful accessibility. Will the Biden Administration come up with regulations in the area? I don’t know. There’s been some legislation put in the hopper called the Online Accessibility Act, which is an absolute disaster for persons with disabilities. I see no chance of that passing without an amendment.

If you are curious about that particular piece of legislation, go to understandingtheada.com and punch into the search engine “online accessibility act”, and you’ll see what it talks about, what it says, and the common problems. [Editor’s Note: Click here to read this specific article.]

Jeff Segal, MD, JD

One of the things that we learned about recently is that there’s a website that can help you identify and address problems. I think if you do a Google search for “accessibility” and “wave”, you’ll find a website that allows you to plug in the domain name for your website and it’ll very quickly tell you what works well and what doesn’t work well, as well as how to remediate. And many of the ideas for remediation are pretty easy. They’re not particularly difficult if you take that list and just shoot it over to your webmaster.

Most webmasters are highly skilled and capable of getting you closer to the goal. It may not be perfect, but it’s certainly better. In addition, there are some recommendations for certain widgets you can place on your website so that the end-user can make some adjustments. For example, you may not want to adjust the look and feel of your website with all its bells and whistles. But if the color contrast is such that it’s almost impossible for someone who’s vision impaired to read or see, that’s a problem. Certain widgets allow the end-user to control the contrast so they can more easily discern what you’re stuck on your website.

Bill Goren, JD

First of all, I think WAVE is a good start. It’s not a substitute for an I.T. professional looking at WCAG and comparing the website to the WCAG standards, but it’s a good start. If you have your I.T. professionals using WAVE, constantly monitoring it, and maintaining awareness of the WCAG standards, I think you are in pretty good shape.

Second of all, with widgets, there is now litigation going on, as those widgets can create issues for individuals with disabilities. Sometimes widgets make it impossible for them to effectively access the website with the technology they use. For example, some of those widgets can play havoc with screen readers. Widgets are not a cure-all. That’s a growing part of website litigation, where plaintiffs are having their screen readers interfered with by the widgets and are suing. Be careful out there with widgets.

They may be helpful, but they also may make things a lot worse. There’s really no substitute for IT professionals familiar with the WCAG guidelines.

Jeff Segal, MD, JD

And how do they get that training? Is there a certification people can pursue?

Bill Goren, JD

Not that I’m aware of, but WCAG standards are on the internet. Anyone can look them up: WCAG 2.1.

There may be issues that you have to get a lawyer involved with, but for the most part, it’s really a matter of these I.T. professionals implementing the guidelines described.

Jeff Segal, MD, JD

But how do doctors ask the right questions? Do you code with a particular version of WCAG in mind? How do you ask the right questions? Because I’m thinking about this from the perspective of a business owner and a doctor. I don’t code websites, but I know how to ask the right questions. And I want to make sure that I can ask the right questions. Otherwise, we’re sitting ducks.

Bill Goren, JD

Agreed. I would want to know from the webmaster how familiar they are with the WCAG guidelines. Ideally, you’d retain someone with that knowledge.

You might even put it in their contract. I certainly did that with the place that hosts my blog. That’s something to think about. It’s a good question to ask the entity hosting your website. “How do you ensure compliance with the WCAG guidelines?”

Jeff Segal, MD, JD

Well, that’s a helpful question to know. If you ask the right questions, you can at least shuttle the work into the proper domain and if not, you can help inform the industry that this is something they need to know.

Bill Goren, JD

Right.

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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

Founder & CEO, Medical Justicewww.medicaljustice.comDr. Jeffrey Segal is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.