OBAMACARE? Yow! Thems fightn’ words! I have another blog where I express my political views and try to keep this one more informative and neutral. At risk of being accused of political speech hear me out! This is something you probably should know and a scary number of people don’t.
It has to do with hospitals and doctors offices providing interpreters; even live interpreters over VRI.
A little background first. The ADA has five parts called Titles (you will never use the last two). Title II applies to government entities. Title II of the ADA has what is called the “Primary Consideration Rule.” What that means is when a person who is Deaf attempts to access government programs, benefits and services the government entity must give “primary consideration” to the auxiliary aid or service requested by the person who is Deaf. What that means is the government agency must give the person who is Deaf the specific aid they requested, like a live interpreter, or the government entity must prove it was not needed. It is not easy to prove something is not needed.
Title III of the ADA doesn’t say that.
Title III has to do with accessing the services of private businesses, like hospitals and doctors offices. Title III only says the private business “should consult with” the person who is Deaf. IT INCLUDES NO OBLIGATION TO GIVE CONSIDERATION TO WHAT THE PERSON WHO IS DEAF REQUESTS NOR DOES IT EVEN OBLIGATE THE DOCTOR TO ASK OR LISTEN WHEN ASKED. It says the doctor “should” consult with the person who is Deaf, but does not make failing to consult a factor in discrimination.
In recent years when the Department of Justice has settled cases involving people who are Deaf who sue government entities (the settlement agreements are called Consent Decrees) the DOJ has begun including new language in these Consent Decrees stating that the definition of “primary consideration” now requires that the government entity ask the person who is Deaf what kind of accommodation the Deaf person needs*.
Think about that.
Prior to that language being added the expectation has always been that the government entity only had to give “primary consideration” to the auxiliary aid or service that the person who is Deaf ACTUALLY REQUESTED. If the Deaf person didn’t ask… too bad!
Now, keep in mind that is not the current interpretation of the rule in general; it only applies to the Consent Decrees in which it is included. But, if that language is an indication of the DOJ’s intent regarding how “primary consideration” should be interpreted, if it becomes the standard, then anytime the law requires “primary consideration” the entity or business must ASK the Deaf person what they want, and give it to the Deaf person, or have the burden to explain in court why it did not.
So, compare that with Title III where the private business doesn’t even have to consider the request of the person who is Deaf who does ask… the law just says it should, not that it must.
Section 504 has always been somewhere in the middle of the two extremes of Title II and Title III. The regulations under the Department of Health and Human Services have much stronger language than “should” but still not as strong as “primary consideration.” For some weird reason HHS also limited the application of Section 504 to medical providers with 15 or more employees. So many small town doctors are not required to follow 504. That pulls it even closer to the weaker standard of Title III.
Now. After all that build up I CAN FINALLY get to the thing you probably should know.
A couple of nights ago I was meeting with a group of people who are Deaf and who had complaints about hospitals using VRI and mentioned the Affordable Care Act (Obamacare) and fully 2/3 of the people in the room groaned, rolled their eyes, or made a disgusted face (I will freely admit, the Deaf Republican has always been a strange notion to me) there were comments flying around the room about how terrible Obamacare is and supporting the Senate Bill. At this point I got everyone’s attention.
“I will not have a political discussion here,” I said, “that is not why we are here-but I will tell you all something you probably should know.”
“Most of the hospitals we are discussing fall under Title III as they are private businesses.” I explained what the concept of “should” to them.
“Only one of the hospitals is a government entity.” I explained the benefit ‘primary consideration’ like I did above.
“All of them must follow Section 504,” I explained, “because they accept Medicare.” In most situations if 504 is applied to a private company that, but for federal funds, would be under Title III then Section 504 mimics the standard of Title III (they “should” ask the person who is Deaf, not “must”).
Here is the kicker, ready?
Obamacare has a section called the Non-Discriminatory Rule or Section 1557. Section 1557 applies to any health program or activity, any part of which receives HHS funding, such as hospitals that accept Medicare or doctors who receive Medicaid payments; the Health Insurance Marketplaces and issuers that participate in those Marketplaces; and any health program that HHS itself administers (Medicare Part B is excluded).
In Section 1557 it states that covered entities must give “primary consideration” to an individual’s choice of aid or service.
Yes you read that right!
The Office of Civil Rights confirmed that all covered entities will be held to the higher standards established under Title II of the ADA, which requires covered entities to give primary consideration to the choice of an aid or service requested by the individual with a disability.
OCR also explicitly stated that the communications requirements of Section 1557 apply to all providers even those with fewer than 15 employees.
In essence the ACA/Obamacare makes the standard for Section 504 the same as the standard for Title II for private hospitals that accept federal funds (even if but for federal funds the standards of Title III would apply).
That can be interpreted to mean that hospitals and doctors must give the Deaf patient the accommodation they ask for (or maybe even ask the Deaf patient what you want) remembering that VRI and live interpreters are listed as separate auxiliary aids under the law, and if they don’t the court will make the medical provider prove a live interpreter was not needed instead of requiring the Deaf person to prove it was.
If the ACA/Obamacare goes away, so does that protection.
You should probably know that.
*Primary Consideration. In determining what type of auxiliary aid or service is necessary to comply with the ADA, the ACSO agrees to give primary consideration to the expressed preference for a particular auxiliary aid or service by an individual who is deaf or hard of hearing. “Primary consideration” means that Personnel will inquire as to the choice of auxiliary aid or service of the individual and will honor the expressed choice unless the ACSO can demonstrate that another equally effective means of communication is available. See Consent Decree for LAWRENCE et al., v. CITY OF ENGLEWOOD, et al., and ARAPAHOE COUNTY SHERIFF para 27 https://www.ada.gov/lawrence-arapahoe.htm 2013
This blog and the attached vlog are informational but not meant to be legal advice or replace discussing your situation with a licensed attorney in your area.