What’s the next big thing in disability civil rights under the Americans with Disabilities Act?
One rapidly developing area is accessibility of health care. The ADA was signed more than 23 years ago, and yet, it is still in its early development as it relates to health care. Over the past few years, we have seen rise in ADA actions alleging discrimination in the provision of health care services to individuals with disabilities.
Nearly 9 percent of New Haveners with disabilities report that there have been times they needed health care but the facilities were inaccessible to them. That’s works out to be roughly 3,000 people in New Haven alone. Now some individuals with disabilities are starting to take action.
Many of the actions under the ADA involve a health care provider not communicating effectively with deaf or hard-of-hearing patients. Effective communication with such individuals may require the provision of sign-language interpreter, video relay interpreting or assisted listening devices. Here in Connecticut, a consent decree was reached in 2001 between the Connecticut Association of the Deaf and 10 hospitals assuring effective communication for patients who are deaf. Similar cases have been brought successfully around the country. One New Jersey doctor who refused to provide a sign language interpreter to a deaf patient lost at trial and the jury awarded the plaintiff $400,000 in compensatory and punitive damages. None of the judgment was covered by his malpractice insurance.
We know that with age comes disability — not only hearing loss but mobility and sight issues emerge. As the number of senior citizens increase in Connecticut, many will find accessibility barriers to health care. Just ask health care providers if their mammography machine is wheelchair accessible, or if the exam table in the doctor’s office lowers for easy transfer for someone with arthritis. The answers you get will be shocking.
To combat this apparent problem, the U.S. Department of Justice in 2012 announced the establishment nationwide the Barrier-free Health Care Initiative, under will officials will “target their enforcement efforts on critical areas for individuals with disabilities.” The Justice Department has also issued written guidance, a publication called “Access to Medical Care for Individuals with Mobility Disabilities,” to help health care provides make their environments more accessible.
The government and private plaintiffs have already brought numerous lawsuits across the country against health care facilities. As part of a typical settlement, facilities are asked to undertake an accessibility review, ensure that at least 10 percent of all new equipment purchased accommodates people with disabilities, and develop policies and procedures to allow individuals with disabilities to make accommodation requests that will meet their particular needs.
While most of the litigation has been focused on large hospitals, small medical practices and service providers should take note of the ADA, review potential barriers and make plans for their removal. They should do this not only because the law may require it, but also because it is good for business. If a medical practice becomes inaccessible for patients with mobility problems because it has two steps to enter into the building, they might decide to go elsewhere. So it might make good business sense to add a ramp.
The federal government provides a variety of tax incentives for health care providers (along with other businesses) to remove barriers like steps, widen doorways, buy accessible exam tables or hire sign language interpreters.
Because of the critical nature of health care, denying equal access to individuals with disabilities is no longer acceptable—to individuals and to the Justice Department.
Another emerging area of disability law is exactly what constitutes a service animal. Prior to the release of updated ADA regulations in 2010, dogs, iguanas and pigs were all asserted to be service animals by various individuals with disabilities.
After businesses pleaded for clearer guidance, the Justice Department issued new regulations that more clearly define a service animal as a dog that is specifically trained to do work or perform tasks for a person with a disability. No more iguanas or pigs.
The tasks service dogs perform can vary greatly from person to person. Some dogs guide individuals with visual impairments, some open doors, push elevator buttons, relieve anxiety, pick up a dropped item, retrieve telephones or dial 911, and some may even predict a seizure or detect allergic reactions.
The ADA allows businesses to make limited inquiries about the service dog. The animal’s owner may be questioned as to whether the dog is, in fact, a service dog, and what tasks the dog is performed to train. That is it. Service dogs under federal law are not required to have an official ID, or a special collar or harness.
There are two instances in which requests can be made to remove service dogs from a public place: (1) when a dog is out of control and the person with a disability fails to take corrective action; and (2) when the dog is not housebroken. But in those circumstances, the staff of a business must offer the individual with a disability access to good and services without the dog’s presence.
Restaurant owners, in particular, fear health inspectors will come after them if they allow patrons to bring service dogs. Other establishments worry about other patrons’ allergies. One cab driver refused to take a service dog because he was afraid of dogs. One Colorado lawyer refused to allow a service dog in his office because he just got new carpets. The lawyer resolved the claim against him by signing a consent decree with the Justice Department that required payment of $50,000 in damages and penalties.
Unfortunately, the service dog law has prompted a host of imposters, with and without disabilities, who try to gain access to public establishments by claiming that their ordinary dog is a service dog. Many people gaming the system have bought service dog vests on the Internet in an effort to gain access for their pooch to their favorite establishments.
Disability groups are now struggling to figure out how to improve the law to prevent imposters. A solution has not yet been found but I anticipate one will be in the coming year. After all, this is a problem that ultimately hurts individuals with disabilities who legitimately use a service dog.•