News & Insights
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:
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
Real-time, computer-aided transcription services
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.
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
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
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:
Be transparent (verbally, in writing, and with written “notice” cards or information sheets) with patients to make them aware of the following:
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:
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.
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