The U.S. Department of Justice (DOJ) has stepped up its pursuit of healthcare providers for failing to provide adequate service to persons who are deaf or hearing-impaired. In May, the DOJ announced multiple settlements with healthcare providers including a hospital, rehabilitation centers, an ear, nose, and throat practice, and a sports medicine center. The DOJ investigations were in response to patients’ complaints after healthcare providers denied the patients’ requests for American Sign Language interpreters at the providers’ expense during treatment.

These settlements follow the DOJ’s “Barrier Free Health Care Initiative” instituted in summer 2012, aimed at ensuring that healthcare providers provide effective communication to people who are deaf or have significant hearing loss. In partnership with the Civil Rights Division and more than 40 U.S. Attorney’s offices across the country, the Initiative is aimed at enforcing provisions of the Americans with Disabilities Act and the Rehabilitation Act which require healthcare providers (and others) to ensure that their communications with people with hearing disabilities are as effective as their communication with people without disabilities. To meet this obligation, healthcare providers must provide appropriate auxiliary aids and services unless:

  1. it would create an undue burden; or
  2. it would fundamentally alter the service being provided.

Healthcare providers may not charge the individual with a disability for the cost of auxiliary aids or services, including sign language interpreters.

The eight settlement agreements reached to date require each provider, among other things, to:

  • provide appropriate auxiliary aids and services unless it would result in an undue burden or fundamental alteration of the service;
  • document the determination of what auxiliary aids or services are appropriate in consultation with the person with the disability, using established factors and a defined timeline;
  • perform a communications assessment and document the results in the patient’s chart;
  • post conspicuous notices about the availability of qualified interpreters free of charge for patients, family members and companions
  • log each request for auxiliary services;
  • provide mandatory training to personnel annually; and
  • submit to three years of DOJ oversight.

Healthcare providers should implement many of these steps now, including training staff on dealing with patients with hearing disabilities in compliance with the law. Those who are using electronic health records should adapt their EMR systems to allow for appropriate documentation of the initial and ongoing assessment, the patient’s preferred mode of communication, and the auxiliary aids provided.