By Elyse Pendergrass.
Access to healthcare has become a touchstone topic in recent elections, with arguments for and against Medicare for All taking center stage. However, there are groups of people for which a single-payer healthcare system would not remedy inequities in access to care. For patients who have limited English proficiency, universal healthcare is not enough. This population is the least likely in the United States to have access to basic preventative or regular health services. Language barriers in healthcare delivery can produce disastrous, life-threatening outcomes, not only for second-language speakers but also for deaf patients.
Due to lack of access to communication with healthcare providers, patients who use American Sign Language (ASL) to communicate are more likely to go to the emergency room and less likely to see a primary care provider. Many deaf patients report not being provided with adequate interpreter servicesor having to teach hospital staff how to operate video interpreting services. A recent case from a district court in Ohio, Tokmenko v. Metrohealth System, addresses the legal implications of hospitals failing to provide effective communication for deaf patients under the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act.
Tokmenko was a deaf individual hospitalized at MetroHealth after a near-fatal car accident. Tokmenko and her mother made clear to the hospital staff that she relied on ASL to communicate with healthcare professionals and make informed medical decisions. However, the hospital proceeded to use a pen and paper to communicate with Tokmenko even though she was not proficient in English and unable to parse complex medical terminology. Hospital staff also attempted to use Video Relay Interpreting (VRI) equipment, which would freeze and lag, rendering it unusable. Although she requested a live interpreter, she was never provided with one.
Federal Legal Protections and Remedies
The Americans with Disabilities Act (ADA) mandates that individuals with disabilities cannot be denied participation in or benefits of services, programs, or activities of a public entity; nor can a public entity discriminate against individuals with disabilities. Section 36.303 provides that public accommodations must supply auxiliary aids and services to facilitate “effective communication.” The Rehabilitation Act functions similarly to the ADA, prohibiting discrimination against or denial of benefits to individuals with disabilities by programs receiving federal funds. Most recently, the Affordable Care Act (ACA) specifically targeted discrimination in healthcare by applying the Rehabilitation Act to health programs and activities receiving federal financial assistance.
The court in Tokmenko found, contrary to MetroHealth’s argument, that although these laws address similar legal issues, they are not duplicative and work together in an important fashion. While the ADA provides injunctive relief, no money can be recovered. However, under the Rehabilitation Act, a plaintiff can be awarded money damages if they can show that the defendant, in this case the hospital, intended to discriminate against them. Additionally, the ACA requires a court to consider the Rehabilitation Act when deciding what compensation a plaintiff may be awarded, so a court has to apply both in tandem.
Arizona Legal Protections and Recent Cases
Arizona, like many states, has its own anti-discrimination law to protect individuals with disabilities. The Arizonans with Disabilities Act (AzDA), similar to the ADA, requires that public entities cannot discriminate against individuals with disabilities and must provide equal access to their services. This includes requiring medical professionals to provide interpreters as necessary for effective communication. The Civil Rights Division of the Attorney General’s Office is responsible for enforcing the AzDA and obtaining relief for violations. In October 2019, the Division settled a claim under the AzDA filed against Bayless Integrated Healthcare, arguing they did not provide an ASL interpreter and, accordingly, denied a patient health services. As recently as January 2020, a patient sued Dignity Health in federal court under the ADA for failing to provide an effective form of interpreting. Although they used a VRI service, the patient argued the video quality was poor and the interpreter was unskilled.
Facilitating Access and Equity
Although some deaf patients in Arizona have been able to successfully find some relief under the AzDA and the ADA, how many more have suffered ineffective communication and experienced medical errors or poor outcomes as a result without any justice? Although the ADA was enacted to prevent such discrimination, it is not without its faults. Patients may not realize that they have a claim if their healthcare provider fails to provide effective communication aids. Even if they do, navigating the legal process is complex and often expensive. Additionally, meeting the high standard of evidence required by courts when bringing a claim under the ADA may prove difficult.
One potential solution is for courts to remove the plaintiff’s burden to show that the offending public entity intended to discriminate against them. Scholars argue that the requirement to show intent to discriminate arose through a patchwork of cases “almost by accident.” The ADA did not originally require individuals with disabilities to meet such a high evidentiary burden. By removing this standard, patients would not have to attempt to prove that their healthcare provider intended to discriminate against them by not providing them with auxiliary aids; instead, they would simply have to provide evidence that they did not receive effective communication. This lower standard may be more in line with the original purpose of the ADA by allowing patients to recover for actions that were discriminatory in effect even if the healthcare entity did not intend to discriminate by failing to provide accommodations.
Another way to increase equity and access in healthcare is through medical-legal partnerships. Medical-legal partnerships place legal professionals in hospitals and other healthcare entities alongside teams of medical professionals based on the underlying premise that unmet legal needs can influence social determinants of health and direct healthcare outcomes. By including legal aid in the delivery of care, medical-legal partnerships can ensure that individuals with disabilities, including deaf patients, are being provided with the appropriate services and are not experiencing discrimination. Although this model traditionally focuses on addressing legal needs outside of the organization providing care, it can be applied to advocacy for patients within the delivery of care.
The ACA, ADA, and Rehabilitation Act reflect great strides in the fight for non-discrimination and access to appropriate healthcare services. But they do not represent a final, perfect solution. We must use them as a framework for furthering protections. By construing claims in favor of patients, lowering the judicial standard so plaintiffs do not have to prove intent to discriminate, and building advocacy directly into the delivery of care model, we can continue to remove barriers to equitable healthcare.