Litigation Avoidance: Ensure Equal Access to Your Facility Through Effective Communication

By: Greg Reilly and Adam Guttell
Tuesday, December 8, 2015

This column frequently focuses on employment issues challenging human resources and in-house legal staff. In operating a hospital, it is natural to take for granted the intent to care for and accommodate patients, regardless of disability. However, best intentions are not enough to comply with the law.

Federal, state and local laws not only prevent discrimination based on protected categories, but they also provide for equal access to healthcare facilities, which presents an issue when patients are unable to communicate or receive critical information during the course of treatment. Under Section 504 of the Rehabilitation Act of 1973, this means that “no qualified individual”1 with a disability in the United States shall be excluded from, denied the benefits of, or subjected to discrimination under any program or activity that receives federal financial assistance.

Anecdotally, hospitals and other covered facilities have seen an uptick in claims related to the failure to provide equal access to hearing-impaired individuals. Equal access, in this context, means effective communication. The U.S. Department of Health and Human Services’ Office for Civil Rights has determined that effective communication must be provided at critical points during hospitalization. These would include those points during which critical medical information is communicated, such as at admission, when explaining medical procedures, when an informed consent is required for treatment and at discharge.2 Thus, under Section 504, a covered facility must ensure that its programs and services are fully accessible to hearing-impaired individuals by making sure there is effective communication.

To ensure effective communication, the law requires the use of auxiliary aides. Under Section 36.303(b) of Title III to the Americans with Disabilities Act (ADA), examples of auxiliary aides include, but are not limited to: qualified interpreters, computer-aided transcription services, assistive listening devices, and open and closed captioning. The key, however, is that the auxiliary aide fully provides effective communication for the patient.

The trend in lawsuits involving claims of ineffective communication has been to challenge the efficacy of auxiliary aides provided. Plaintiffs frequently claim that the only effective communication is by means of a qualified live interpreter, which tends to be the most costly solution. However, it also is the most conservative approach to stave off litigation. Claimants filing suit under the ADA and the Rehabilitation Act may seek monetary damages, attorneys’ fees and injunctive relief. Since the attorneys’ fees available to a prevailing party can dwarf other remedies, early resolution often results.

It is not enough, however, to have the phone number for a live interpreter. Facilities must have in place the means to efficiently and swiftly access auxiliary aides to avoid any claims of ineffective communication. To do so, facilities must:

  • Set up a relationship with a qualified interpreter agency or auxiliary aid provider
  • Prepare and implement proper procedures and policies related to equal access for hearing-impaired individuals (including what to do when the auxiliary aid is unavailable or malfunctioning)
  • Conduct thorough and regular training for all staff who may come in contact with patients. Frequently, claims result from well-meaning but untrained staff members who are unaware of the procedures for engaging a live interpreter or similar auxiliary aid.

In order to create effective policies, improve existing programs and conduct effective training, we recommend speaking with employment counsel to maintain a facility that accommodates all patients and minimizes litigation risk.

Greg Reilly and Adam Guttell are Partners in Martin Clearwater & Bell LLP’s Employment & Labor Practice Group. For more information, contact or