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Coronavirus: Treating patients with communication barriers

Mar 31, 2020

The COVID-19 pandemic presents particular risks for patients who have communication barriers, such as those who are deaf, blind or speech impaired.  Healthcare facilities, especially emergency departments, may wish to review their legal obligations to provide effective, non-discriminatory communication to patients and companions who have communication barriers.

Which federal disability discrimination laws apply to hospitals and healthcare providers?

Several federal disability discrimination laws mandate equal access to and an equal opportunity to participate in and benefit from healthcare services, and effective communication with individuals who have communication barriers:

• Section 504 of the Rehabilitation Act of 1973 – applies to federal healthcare services and facilities; and healthcare providers that are also recipients of federal financial assistance, usually provided by direct funding (such as Medicaid) or by federal research grants.
• Title II of the Americans with Disabilities Act – applies to all public (state and local) healthcare providers.
• Title III of the Americans with Disabilities Act – applies to all private healthcare providers.
• Section 1557 of the Affordable Care Act - applies to any healthcare provider, such as a hospital or doctor, that receives funding from the federal government.

What legal duties do healthcare providers owe to patients who have communication barriers?

Basic Rule: Healthcare providers have a duty to provide appropriate auxiliary aids and services when necessary to ensure that communication with people who have communication barriers is as effective as communication with others.

What is the purpose of the effective communication requirement?

The purpose of the effective communication rules is to ensure that the person with a covered disability can communicate with, receive information from, and convey information to, the covered entity. The key to communicating effectively is to consider the nature, length, complexity and context of the communication and the person’s normal method of communication, so as to marry the two into an effective approach.

Specifically, which private healthcare providers are covered under federal discrimination laws?

The federal discrimination laws addressed above apply to all private healthcare providers, regardless of the size of the facility or the number of employees. It applies to providers of both physical and mental healthcare. Hospitals, nursing homes, psychiatric and psychological services, offices of private physicians, dentists, health maintenance organizations (HMOs), and health clinics are included among the healthcare providers.

Under normal circumstances, what aids and auxiliary services could a healthcare facility provide to a patient or companion who has a communication barrier?

• Qualified Interpreters onsite

• Qualified Interpreters through VRI

• Note-takers

• Real-time, computer-aided transcription services

• Written materials

• Exchange of written notes

• Telephone handset amplifiers

• Tactile sign language - Method of communicating using touch. The deafblind person places their hands over those of the signer to follow what is being communicated through touch and movement.

• On-call interpreter who also has the ability to do tactile sign language.

• Qualified Reader

• Someone who is able to read effectively, accurately, and impartially, using any necessary specialized vocabulary
  Information in large print, Braille, or electronically for use with a computer screen-reading program

• Screen reader software

• Taped texts/Recorded Text

• Braille/Braille TTY

• Support Service Providers

• Assistive listening devices

• Assistive listening systems

• Phones compatible with hearing aids

• Closed caption decoders

• Open and closed captioning, including real-time captioning

• Voice, text, and video-based telecommunications products and systems

• Videotext displays

• Accessible electronic and information technology

Does a healthcare facility’s duty to provide effective communication to a patient or companion with a communication barrier discontinue because of COVID-19?

No!  Although the new reality is that a high number of COVID-19 cases may overwhelm traditional communication services, healthcare professionals are still required to provide effective communication to patients or companions who have communication barriers.  Nothing in the recently enacted statutes or regulations changes these requirements.  Compliance admittedly may become more difficult.  Some areas of difficulty that healthcare professionals might face are a lack of resources and trying to communicate while wearing a mask. There are many others. 

To ensure that healthcare providers are providing effective communication while maintaining safety and decreasing the spread of the virus, here are some options that you can have onsite and readily available for patients that have communication barriers:

• Quality video interpreting services 
  • “Linguabee” is offering free video interpreting for COVID-19 testing
• Access to real-time captioning
• An assistive listening device
• Apps such as
  • Speech to text
    • Google Live Transcribe (can type back in many languages, Android)
    • Microsoft Translator (can type back and translate in many languages, iOS, Android, Windows)
    • Ava (can type back in many languages, iOS, Android)
    • Otter.ai (English only - speech to text, iOS, Android)
    • Web Captioner (speech to text in many languages, universal web page)
• Typing Back
  • Big Note (iOS, Android)
  • Cardzilla (iOS, Android)
  • Google Keep (iOS, Android)
  • Sorenson Buzz Cards (iOS, Android)
• Phone Calls (video relay services)
  • Convo (iOS, Android)
  • Global (iOS, Android)
  • Purple (iOS, Android)
  • ZVRS (iOS, Android)
  • Sorenson (iOS, Android)
• Text-based fallback options for phone calls
  
  • IP Reply (iOS, Android)
  • Mobile TTY or real-time text (RTT) calling 711 (iOS, Android)
• Displays text in large type
  
  • Make it Big (iOS)
  • Cardzilla (iOS)
• Wired or wireless lavalier microphone to increase the accuracy for speech to text applications/software
• Availability of clear face masks
• Placement of patients with communication barriers in a ward with accessible WiFi, as many communication devices depend on Internet connectivity
  • If WiFi connectivity is limited, consider providing cellular hotspots
• While expensive and often not reasonably available, a live ASL interpreter

Be transparent (verbally, in writing, and with written “notice” cards or information sheets) with patients to make them aware of the following:

• They may be placed in isolation with physical barriers that may disrupt their usual accommodations and may receive limited care from medical professional treating multiple patients.
• In a medical disaster setting, the hospital may have access to limited communication resources.
• Ask the patients if they have a communication access plan or if they have preloaded communication applications on their smartphones or other devices.

Doctors are encouraging their patients who have communication barriers to have a plan of action in place in the unlikely event that they have to go to the emergency room during this time.  Some items on these plans include:

• Bringing a friend or loved one to act as an advocate
• Bringing chargers for smartphones and hearing equipment
• Keeping hearing assist equipment in their ears at all times to prevent hearing loss
• Bringing a written list of medications
• Establishing a communication access plan which includes
• Printing signs to place in their room, such as:
  • “I have Vision Loss”
  • “I am Deaf”
  • “I am Deaf-Blind”
  • “I am Deaf and I Speak”
  • “I am Deaf and Cannot Speak”
  • “I Use Hearing Aids”
  • “I Read Lips”
  • “I Hear but Cannot Speak”
  • “I Require Interpretation”

Adding similar guidance to a facility’s plan and communication approach makes sense and may solve issues before they arise.  The key to compliance with federal disability discrimination laws is educating staff to the policies and procedures regarding the laws’ requirements for communicating effectively with people who have communication disabilities.

Please do not hesitate to contact us as you navigate these challenges.

For additional legal resources and answers to some frequently asked questions, visit our Coronavirus Portal.