The U.S. Department of Justice reached a January 31, 2019 settlement of an American with Disabilities Act (“ADA”) Title III complaint against health care provider Selma Medical Associates relating to provision of medical services to an individual with opioid use disorder (“OUD”).  The settlement is notable for health care providers and employers as it makes clear that DOJ considers OUD as a disability under the ADA thereby triggering the full panoply of ADA rights for those with OUD.

The DOJ complaint was premised on the alleged refusal of Selma Medical to schedule a new patient family practice appointment after the patient disclosed he takes Suboxone.  Suboxone is a prescription medication approved by the Food and Drug Administration for treating OUD.  The complaint further alleged that Selma refused to treat patients with narcotic controlled substances, including Suboxone, thus imposing “eligibility criteria that screen out or tend to screen out individuals with OUD.”  The compliant also alleged a failure to make reasonable accommodations to policies, practices or procedures when necessary “to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.”

Under the settlement, Selma agreed to:

  1. Not discriminate or deny services on the basis of disability, including OUD;
  2. Not use eligibility standards, criteria or methods of administration that tend to deny benefits on the basis of disability including OUD;
  3. To modify its policies as necessary;
  4. To draft and submit within 30 days for DOJ approval a non-discrimination policy and to remove any inappropriate existing policies;
  5. After DOJ approval, to adopt and disseminate to all employees the new non-discrimination policy;
  6. To train all management and employees within 60 days and annually for three years as to the new policy and ADA compliance with the initial training conducted live, with a Q&A opportunity, and by a trainer to be approved by DOJ;
  7. Submit compliance reports to DOJ for three years; and
  8. To pay compliant $30,000 in damages and a civil penalty to the U.S. of $10,000.

The DOJ-Selma Medical settlement is highly significant in an environment where in 2015, OUD affected 2 million people aged 12 and over (Drug and Alcohol Dependence, Vol. 169, Dec. 2016, pp. 117-127) and .6 million persons aged 12 or over had heroin use disorder (id.) and the lifetime percentage of individuals with Diagnostic and Statistical Manual-IV prescription OUD among adults 18 and over had more than doubled from 1.4% in 2001-2002 to 2.9% in 2012-2013 (id.), and likely higher today.  And, of course, this does not include those who are OUD for reasons other than prescriptions.  This means that health care providers are highly likely to encounter significant numbers of potentially challenging OUD patients.  DOJ has now made clear that providing the full range of care and services to such patients is required under the ADA – and that any failure to do so can lead to litigation, costly settlements and adverse publicity.

All employers, not just health care providers, should take note of this settlement as it clearly means that employers will also need to reasonably accommodate employees who seek time off for treatment or other accommodations unless the employer cannot show the requested accommodations would be an undue hardship.

The Selma Medical settlement is also a reminder that health care providers should make sure they have appropriate non-discrimination policies in place as required pursuant to Health and Human Services regulations for compliance under Title III of the ADA, the Rehabilitation Act of 1973, and the non-discrimination requirements of Section 1557 of the Affordable Care Act.  We can assist with any questions regarding the required policies and other issues as to compliance with the ADA, the Rehab Act and Section 1557.

 

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “Latest Website Accessibility Decision Further Marginalizes the Viability of Due Process and Primary Jurisdiction Defenses.”

Following is an excerpt:

In the latest of an increasing number of recent website accessibility decisions, in Gorecki v. Hobby Lobby Stores, Inc. (Case No.: 2:17-cv-01131-JFW-SK), the U.S. District Court for the Central District of California denied Hobby Lobby’s motion to dismiss a website accessibility lawsuit on due process and primary jurisdiction grounds.  In doing so, the Hobby Lobby decision further calls into question the precedential value of the Central District of California’s recent outlier holding in Robles v. Dominos Pizza LLC (Case No.: 2:16-cv-06599-SJO-FFM) which provided businesses with hope that the tide of recent decisions might turn in their favor. …

Read the full post here.

Our colleagues Joshua Stein, co-chair of Epstein Becker Green’s ADA and Public Accommodations Group, and Stephen Strobach, Accessibility Specialist, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry:  “DOJ Refreshes Its Efforts to Promulgate Title II Website Accessibility Regulations and Other Accessible Technology Updates – What Does It All Suggest for Businesses?”

Following is an excerpt:

On April 28, 2016, the U.S. Department of Justice, Civil Rights Division, withdrew its Notice of Proposed Rulemaking (NPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  This original initiative, which was commenced at the 20th Anniversary of the ADA in 2010, was expected to result in a final NPRM setting forth website accessibility regulations for state and local government entities later this year. Instead, citing a need to address the evolution and enhancement of technology (both with respect to web design and assistive technology for individuals with disabilities) and to collect more information on the costs and benefits associated with making websites accessible, DOJ “refreshed” its regulatory process and, instead, on May 9, 2016, published a Supplemental Notice of Proposed Rulemaking (SNPRM) in the federal register. …

The questions posed in the SNPRM indicate that DOJ is considering many of the issues that Title III businesses have been forced to grapple with on their own in the face of the recent wave of website accessibility demand letters and lawsuits commenced on behalf of private plaintiffs and advocacy groups.  It would be a positive development for any eventual government regulations to clearly speak to these issues.  Conversely, it may be even longer before we see final regulations for Title III entities. …

While most current settlement agreements regarding website accessibility focus on desktop websites, many businesses are anticipating that the next target for plaintiffs and advocacy groups will be their mobile websites and applications.  Such concern is well founded as recent DOJ settlement agreements addressing accessible technology have included modifications to both desktop websites and mobile applications.

Read the full post here.

My colleague Joshua A. Stein at Epstein Becker Green has a Hospitality Labor and Employment Law blog post that will be of interest to many of our readers: “DOJ Further Delays Release of Highly Anticipated Proposed Website Accessibility Regulations for Public Accommodations.”

Following is an excerpt:

For those who have been eagerly anticipating the release of the U.S. Department of Justice’s proposed website accessibility regulations for public keyboard-4x3_jpgaccommodations under Title III of the ADA (the “Public Accommodation Website Regulations”), the wait just got even longer.  The recently released Spring 2015 Unified Agenda of Federal Regulatory and Deregulatory Actions reveals that DOJ’s Public Accommodation Website Regulations are now not expected until April 2016.  This delay moves back the release date nearly a year from what most had previously anticipated; this summer in advance of July’s 25th Anniversary of the ADA.  While there was no public statement explaining the release, most insiders believe it has to do with the difficulty of appropriately quantifying the costs and benefits of complying with any promulgated regulations – a necessary step by DOJ for such a rulemaking.

Read the full original post here.

Our colleague Joshua A. Stein authored Epstein Becker Green’s recent issue of its Take 5 newsletter.   In this special edition, Josh focuses on the 25th Anniversary of the ADA and recent developments and future trends under Title III of the ADA. 

  1. Website Accessibility
  2. Accessible Point-of-Sale Devices and Other Touchscreen Technology
  3. Movie Theater Captioning & Audio (Narrative) Description
  4. The Availability of Sign Language Interpreters at Health Care Facilities
  5. “Drive By” Design/Construction Lawsuits

Read the full newsletter here.

By Andrea R. Calem

Noncompliance with the Americans with Disabilities Act just became costlier.  Pursuant to an inflation-adjustment formula, on March 28, 2014 the Department of Justice (“DOJ”) issued a final rule raising the civil monetary penalties assessed or enforced by the Civil Rights Division, including those assessed under Title III of the ADA (“Title III”).

Title III prohibits public accommodations from discriminating against disabled individuals with respect to access to goods, services, programs and facilities, and (with limited exceptions) requires public accommodations to make reasonable accommodations so that disabled individuals may equally access these goods and opportunities.  Accommodations may include modification of physical space in order to remove physical barriers, the provision of auxiliary aids for communication (such as sign language interpreters, closed captioning, written materials in Braille), and a wide variety of other, context-specific adjustments to the way business is conducted or services are offered.

With the upward adjustment, the maximum civil penalty for a first violation of Title III rises from $55,000 to $75,000, and the maximum civil penalty for a second violation rises from $110,000 to $150,000.  The new maximums apply to violations that occur on or after April 28, 2014.  The last time these penalties were adjusted for inflation was in 1999.

These penalties can be consequential for small businesses or those with thin profit margins, and can accrue to significant levels for businesses of all sizes if the DOJ finds evidence of repeated violations of Title III.  The DOJ’s current ADA enforcement environment is an aggressive one, consistent with the aggressive positions recently taken by many other federal agencies which protect workers’ and civil rights, such as the National Labor Relations Board, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance and Programs.  Health care and life science businesses, in particular, are targets of the DOJ’s Barrier-Free Health Care Initiative, which has led to an increase in the number of Title III enforcement actions undertaken by U.S. Attorney’s offices across the country in the past several years.

The increased penalties are one more reminder that the costs associated with ADA compliance should not be postponed until enforcement – in the form of a civil lawsuit or the DOJ – is knocking at your (hopefully accessible) door.

Please join me and my colleagues Frank C. Morris, Jr. and Brian Steinbach on April 29  and April 30 for a two-part webinar concerning ADA compliance.  Registration is complimentary.

Under Title III of the Americans with Disabilities Act (“ADA”), private health care providers, including clinics, hospitals and doctor’s offices, as places of public accommodation, are required to provide their services to individuals with disabilities in an accessible manner.  Specifically, the ADA requires that providers provide individuals with disabilities full and equal access to their health care services and facilities and provide reasonable modifications to policies, practices and procedures when necessary to make health care services fully available to individuals with disabilities, unless the modifications would alter the essential nature of the services.

The Department of Justice enforces the ADA through investigations and injunctive relief.  Moreover, the ADA provides a private right of action for individuals to seek injunctive relief and attorneys’ fees (but not monetary damages) against medical providers if barriers prevent the full and equal access to health care services.   As a result of recent changes in the ADA and the spread of individual plaintiff lawsuits across the country, more health care providers are seeing an increase in potential litigation and investigations under Title III.

Below are some frequently asked questions that medical providers should be aware of when providing care to individuals with disabilities:

  • What areas within my medical space must be accessible for individuals with disabilities?

A medical provider must ensure all areas of its space is accessible, including entry doors, an accessible route to and through the waiting area and examination room, adequate floor space inside the room for side transfers and the use of lift equipment, and accessible restrooms.

  • Can I tell a patient that I cannot treat her because I do not have accessible medical equipment?

No.  Medical practitioners may not deny a service to a patient who you would otherwise service because of a disability.  The physician must examine the patient just as any other patient, and include equipment such as an accessible exam table, accessible stretcher, a patient lift or have trained staff that can assist the patient.

  • If a patient is accompanied by a service animal, can I ask the patient for proof before allowing it into my office space?

No.  Service animals (defined as dogs) must be permitted when the task performed is related to a disability.  A medical provider may not require proof of certification of medical documentation as condition of entry.  A service animal may only be excluded if the dog is out of control and the owner cannot gain control of the animal, or the dog is not housebroken.

  • Can I examine a patient in a wheelchair if the patient is unable to get onto the exam table independently?

Generally no.  Examining a patient in a wheelchair may be less thorough than on an exam table and does not provide equal access to medical services as a non-disabled patient.  A transfer system should be provided or staff should be trained on how to maneuver a person onto the exam table.

  • If I lease my medical office space, am I responsible for making sure the examination room, waiting room and toilet rooms are accessible?

Yes.  A private entity that owns, leases, or operates a place of public accommodation is responsible for complying with the ADA.  Both tenants and landlords are equally responsible.

  • What should I do if my staff does not know how to help a person with a disability or know what the ADA requires my office to do?

It is important that both the medical provider and staff be trained on how to provide medical services in an accessible manner.  Such training would include how to operate accessible equipment, how to assist with transfers and positioning of individuals with disabilities and how not to discriminate against individuals with disabilities.

 

As the obligations of a health care provider to comply with the accessibility requirements under the ADA are complex and centered on design elements, having a thorough understanding of what is necessary to avoid a discrimination complaint or lawsuit is key.  Medical providers can conduct a walk through audit of the facilities and elements to see what may need to be updated or renovated to comply with the ADA.  However, compliance does not end with just accessibility design requirements, but staff training and knowledge in communicating with patients with disabilities will go a long way in fending off unnecessary lawsuits.