Hospital Requirement to Provide Auxiliary Communication Aids Continues

Hospital staff in practically every department must be conscious of hearing-impaired patients and then determine how to communicate effectively.

The 11th U.S. Circuit Court of Appeals ruled recently that two “profoundly deaf” patients will be able to continue their Americans with Disabilities Act (ADA) case against a pair of Miami area hospitals for failure to provide them with auxiliary aids and services. The case serves as a reminder that hospitals have a responsibility to ensure that patients can communicate effectively with clinical, financial, and administrative staff.

The Appellate Court Decision

The case is Silva v. Baptist Health South Florida , and according to the court’s opinion, the plaintiffs had been patients at two of the system’s hospitals numerous times in the last few years. On many of those occasions, they allegedly could not communicate effectively with hospital staff because they communicate primarily in American Sign Language (ASL) and the hospitals did not assist them properly.

When treating deaf patients, the two hospitals typically relied on video remote interpreting (VRI)—a telecommunications device by which live ASL interpreters are located remotely and communicate with doctors and patients through portable screens in the facility. VRI can be effective when it works properly, but the plaintiffs contend that during many of their visits the VRI machines suffered technical difficulties that either prevented them from being used at all or resulted in unclear image quality that disrupted visual messages.

When a VRI machine was unavailable or malfunctioned, hospital staff would sometimes rely on family-member companions for interpretive assistance or would exchange hand-written notes with the patients. But using family members is prohibited by federal regulations (except in a few limited circumstances), and the patients had only “very basic” English proficiency, so the written notes were not especially helpful. On rare occasions, after a VRI breakdown, an on-site ASL interpreter would be called to assist with communication, but this was also ineffective according to the complaint.

A trial court issued summary judgment for the defendant hospitals because the plaintiffs did not prove any actual harm from the communications failures. But the 11th Circuit reversed that decision saying, “We do not require a plaintiff to show actual deficient treatment or to recount exactly what the plaintiff did not understand. … Rather, the relevant inquiry is whether the hospital’s failure to offer an appropriate auxiliary aid impaired the patient’s ability to exchange medically relevant information with hospital staff.”

The case is being returned to the trial court for further consideration, and because decisions in these types of cases depend on detailed analysis of the facts, a final outcome is hard to predict. Nevertheless, according to Rick Kottler, executive director, Deaf and Hard of Hearing Services of the Treasure Coast, Jensen Beach, Fla., the case is significant “because it is among the first to clarify for both the deaf/hard-of-hearing community and the healthcare community what the law requires, namely: equal participation.”

Kottler, who served on a Florida Hospital Association task force that addressed effective communication a few years ago, lists four questions used by the Department of Justice to help decide when interpreters or special equipment—such as VRI machines or amplification—are required: 

• What is the purpose of the communication?
• What is its expected length?
• How many people are involved?
• What is the depth or complexity of the exchange of information?

“The ADA requirements apply not only to conversations regarding clinical information but also to discussions involving topics like admission, billing, insurance, and special needs (such as dietary requirements),” Kottler says. Thus, the staff in practically every department that deals with the public must be conscious of when a person has hearing problems and then must determine how to make the communication effective.

Lessons Learned

Kottler says there are several lessons to be gleaned from the Silva case.

Provide equal services. Persons with disabilities may not be denied services or treated differently than other persons because of the absence of auxiliary aids and services. Thus, for the hearing impaired, the healthcare organization must provide qualified on-site or VRI interpreters, written materials, telephone handset amplifiers, assistive listening devices, open and closed captioning, or other appropriate methods. It is also the hospital’s responsibility to train staff to use the equipment properly, he says.

Extend assistance to patient companions. The obligation to provide effective communication relates not only to patients but also to their companions who have disabilities. A “companion” means family members, friends, or associates of patients with whom it is appropriate to communicate about patients’ care, finances, and other matters.

Ensure effective communication. As noted earlier, the types of auxiliary aids or services necessary to ensure effective communications will vary according to the communication methods used by the individual; the nature, length, and complexity of the communications involved; and the contexts in which the communications take place. Patients or companions can be asked what type of auxiliary aids they need, but the ultimate decisions on what measures to use rests with healthcare providers, as long as the methods are effective. The 11th Circuit confirms this, saying, “A patient is not entitled to an in-person interpreter in every situation, even if he or she asks for it. The hospital ultimately gets to decide, after consulting with the patient, what auxiliary aids to provide. But whatever communication aid the hospital chooses to offer, the hospital must ensure effective communication with the patient.” (Emphasis added.)

Ensure participation. Finally, Kottler says “no harm, no foul” does not apply in these cases, and the court agrees. It held, “[R]egardless of whether a patient ultimately receives the correct diagnosis or medically acceptable treatment, that patient has been denied the equal opportunity to participate in healthcare services whenever he or she cannot communicate … relevant information effectively with medical staff. It is not dispositive that the patient got the same ultimate treatment that would have been obtained even if the patient were not deaf.”

An Administrative Settlement

It is uncommon for these cases to make their way to the level of federal appeals courts or to be litigated at all. Most complaints are settled administratively. A typical case is that of John Dempsey Hospital, a part of the University of Connecticut Health Center. The hospital recently entered into a “voluntary resolution agreement” (VRA) with the Department of Justice and the Department of Health and Human Services Office of Civil Rights following the complaint of a patient who uses ASL as her primary means of communication. The complaint alleged that the hospital failed to provide timely auxiliary aids and services to ensure effective communication during an emergency department visit.

John Dempsey Hospital and the health center cooperated fully in the government’s investigation, and the findings led the hospital to strengthen its services for deaf and hard of hearing persons. The hospital was already one of two acute care hospitals in Connecticut with full-time on-site interpreters, and following the investigation they added VRI technology. The settlement agreement outlines other remedial actions including appointment of a “Civil Rights Compliance Coordinator,” revision of policies and procedures, and improved intake processes for determining patients’ communications needs.

As in the Silva case, the John Dempsey Hospital settlement points out that decisions about which auxiliary aids or services are necessary rests with hospitals, “in consultation with the patient or companion, wherever possible, giving primary consideration to the choice expressed by the patient or companion.” That choice should be honored whenever it is reasonable to do so, and the VRA lists six factors to be considered in making that assessment.

A Final Caution

 “If you can’t communicate with your patient, you’re practicing veterinary medicine, and that’s no good,” says Kottler. Compliance officers, finance department personnel, risk managers, nursing supervisors, medical staff services departments, and other staff concerned with patient communications and the quality of care should take heed of the nondiscrimination standards relating to auxiliary aids and services.

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J. Stuart Showalter, JD, MFS, is a contributing editor for HFMA.

Interviewed for this article:

Richard J. (Rick) Kottler, executive director, Deaf and Hard of Hearing Services of the Treasure Coast, Inc., Jensen Beach, Fla. 

Resources:

• Silva v. Baptist Health South Florida, No. 16-10094 (11th Cir., May 8, 2017),
• John Dempsey Hospital/University of Connecticut Health Center voluntary resolution agreement
• Managing the ACA’s Nondiscrimination Provisions
• Americans with Disabilities Act
• Auxiliary aids and services regulations (25 C.F.R. § 36.303)
• Florida Hospital Association, “Effective Communication: The Why and the How” (2006)
• U.S. Equal Employment Opportunity Commission
• U.S. Department of Justice
• U.S. Department of Health and Human Services civil rights website (Sec. 1557) 
• Registry of Interpreters for the Deaf
• National Association of the Deaf