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ADA: Titles II and III: Health care provider as public entity or public accommodation

Introduction

Introduction to Title II and Title III for Health Care Providers

Health care providers -- whether a doctor's office, a clinic, a hospital, a group practice, an urgent care provider, a general physician, a dentist, or some other type of health professional -- are covered under the ADA. Title II of the ADA applies to state and local government and all related instrumentalities. This means that a county hospital, a city operated clinic, or other similar entity must adhere to the obligations of Title II.

Title III of the ADA applies to public accommodations: a private entity that owns, leases, leases to, or operates a place of public accommodation. A place of public accommodation is essentially a business or nonprofit entity; a place that effects commerce and falls into one of twelve categories established under the Department of Justice's ADA Title III regulations. This would include such entities as a private doctor's practice, a private hospital, or a private physical rehabilitation facility.

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Service Animals and Health Care

Service animals perform valuable functions for their handlers with disabilities. Under the regulations for Title II and III of the ADA from the Department of Justice, a service animal is a dog (with the sole exception of a miniature horse) trained to perform specific tasks for a person with a disability. When service animals need to enter a medical facility with their handler, they must be permitted to accompany their owner wherever the public is normally allowed to go. This includes spaces such as patient rooms, cafeterias, waiting areas, and examination rooms. A service animal may be prohibited from strictly sterile environments such as a burn unit or operating room. The service animal must be under the control of its handler at all times. It should be harnessed, leashed, or tethered unless the handler's disability prevents the use of these tools, or if they would interfere with the task of the service animal. There is no special license or certification required for a service animal. When it is not clear what task a service animal performs, a health care provider can ask two questions: Is the animal a service animal needed because of a disability? And what task or work has the animal been trained to perform? Beyond these two questions, a provider cannot ask about an individual's disability or about some additional form of verification. A person with a disability should not be asked to remove their service animal unless the dog acts out of control and the handler does not correct the action; or if the service animal is not house broken.

A concern for allergies is not a reason to exclude a service animal from a facility. A covered provider may need to work to create a strategy for accommodating the handler, their service animal, and those who may have allergies.

Physical Accessibility & Health Care Providers

A health care provider that is a public entity under Title II or a public accommodation under Title III must comply with the relevant physical access requirements under each Title of the ADA. That means that any new construction or alterations must comply with the 2010 ADA Standards for Accessible Design.

Existing facilities are expected to progress over time towards full compliance with these standards. In addition to the requirements for all covered entities to provide such things as accessible parking, an accessible path of travel, and access to primary function areas, health care facilities must meet certain specific standards based on the type and nature of a facility and the primary patient population it serves. Sections 208, 223, and 805 of the 2010 ADA Standards for Accessible Design detail the specific criteria applicable to covered health care providers.

Reasonable modification to policy, practice, or procedure

As a public entity under Title II or a public accommodation under Title III, a health care provider must reasonably modify its policies, practices, and procedures to avoid discriminating against an individual with a disability. This may mean that adapting the way something is done may need to happen to best accommodate the individual. Policies, practices, and procedures must be carefully thought out to include individuals with disabilities, though the covered health care provider does not have to make a modification that would fundamentally alter its programs, activities, goods, services, or facilities.

Surcharges

Even though there may be cost to a health care provider to comply with the ADA, a health care provider covered by Title II and III cannot pass along the cost to an individual with a disability or group of individuals with a disability. Surcharges for modifications, auxiliary aids or services, or for removal of physical barriers would violate the ADA.

Nondiscrimination in programs, services, or activities

A key aspect of Title II is that individuals with disabilities must be provided an equally effective opportunity to participate in or benefit from a public entity's aids, benefits, and services. An individual cannot be denied participation or excluded from a program based on their disability. Under Title III, an individual with a disability may not be denied full and equal enjoyment of the "goods, services, facilities, privileges, advantages, or accommodations" of a public accommodation. An individual with a disability must be given equal opportunities to participate, benefit, and receive the benefits of a public accommodation in the most integrated setting appropriate. In order to comply with the ADA, health care providers must apply the concept of equal opportunity to their operation.

Effective communication and Health Care Providers

Medical providers must ensure that communication with a person with a disability is equally effective as that provided to individuals who do not have a disability. Through providing auxiliary aids or services -- including, but not limited to, sign language interpreters, alternate formats for documents, or a qualified reader _ medical providers can ensure they are communicating effectively.  Medical providers should consult with the individual before determining what is an appropriate aid or service.

For a public entity, primary consideration must be given to the individual's choice. For public accommodations, the preference of the individual's aid or service must be taken into account, but the public accommodation may provide an alternate aid or service as long as it is equally effective. A health care provider must factor in the length and complexity of communication in assessing what is the appropriate aid or service. If a patient who is Deaf is stopping in her family physician's office to drop off a form, then a sign language interpreter would not be necessary; the staff could communicate by exchanging notes. However, if the same patient is having a consultation with the physician, then the provision of a sign language interpreter would be appropriate. In such an instance, it would be inappropriate to require the patient to have a family member or friend interpret given the nature of the communication involved. A qualified interpreter must be provided to the patient.

While a medical provider does not have to offer an auxiliary aid or service that would cause a fundamental alteration to their programs, services, or goods, or create an undue burden, all of the resources available to the provider must be weighed in its decision. Refusing to offer an aid or service simply because there is a cost attached to it is not sufficient in itself to refuse to provide the aid.

References

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Northeast ADA Center: 1-607-255-6686

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Email Us: northeastada@cornell.edu