Providers Must Offer Effective Communication for Hearing-Impaired or Face ‘Robust Enforcement’

June 5, 2023

The U.S. government entered into two recent settlements with healthcare providers who allegedly denied deaf and hearing-impaired patients or their caregivers auxiliary aids for effective communication. These settlements remind providers to consider when auxiliary aids, such as interpreters, must be provided free of charge. In the most recent settlement, the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) Director Melanie Fontes Rainer stated:

“We are seeing case after case involving health care providers who fail in their responsibility under federal civil rights laws to provide effective communication to patients and their caregivers … OCR will continue to take robust enforcement action until we make it clear that health care providers must remove unnecessary barriers and provide equal treatment for those who are deaf or hard of hearing.” (Emphasis added).

Both settlements can guide healthcare providers, who are covered entities when receiving federal funds through certain reimbursement programs such as Medicare Advantage and Medicaid, in addressing federal disability nondiscrimination laws. Takeaways include when auxiliary aids and interpreter services must be provided to patients or their caregivers. This alert summarizes these two recent settlements and provides five key points, including a framework for implementing a disability plan.

Dearborn Settlement

The U.S. Attorney’s Office for the Eastern District of Michigan (DOJ), OCR and HHS entered into a settlement on March 23, 2023, with Dearborn Obstetrics and Gynecology P.C. for an alleged federal civil rights violation. The OCR and DOJ received a complaint from a Dearborn OBGYN patient alleging being denied a sign language interpreter for a preoperative appointment despite multiple requests. Dearborn OBGYN allegedly retaliated against the patient by canceling her appointments and terminating her as a patient.

MCR Settlement

OCR and HHS entered into a settlement on May 10, 2023, with MCR Health Inc. for an alleged federal civil rights violation. OCR received a complaint and initiated an investigation after a woman (complainant), acting as a caregiver to her husband (an MCR patient), alleged that MCR had denied the complainant’s request for a sign language interpreter, which she required to effectively communicate at her husband’s post-surgical cardiology appointment. The complainant previously had been provided an interpreter as a patient at her own appointments. Refusing to provide an interpreter or auxiliary aid for a caregiver to effectively communicate is also prohibited under federal civil rights laws.

1. Nondiscrimination Requirements Under Section 1557 and Section 504.

Healthcare providers must provide appropriate auxiliary aids and services, such as a sign language interpreter, when requested by patients who are deaf or heard of hearing under Section 1557 of the Affordable Care Act (Section 1557) and Section 504 of the Rehabilitation Act of 1973 (Section 504). Section 1557 incorporated other civil rights laws in “prohibit[ing] discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities.” Incorporated civil rights laws include the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975 and Section 504. Section 504 provides that no person “… shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance …”

Covered entities generally are required to make reasonable changes to accommodate the needs of patients with disabilities. However, covered entities are not required to do so if the changes would (i) cause undue hardship, or (ii) fundamentally alter the nature of the health program. Understanding what constitutes “undue hardship” or what “fundamentally alters” a health program is not always clear. For reference, see HHS resources Protections for Individuals with Disabilities and Provider Obligations.

The Trump administration gave more flexibility here from earlier rulemaking. Effectively, with 2020 final regulations, the Trump administration removed certain mandatory aids (now more dependent on the patient’s need) and mandatory notice of nondiscrimination to patients under Section 1557 regulations that noted the provider would provide such aids free of charge. In doing the latter, the administration reasoned that “[t]he regulations of the underlying statutes referred to in Section 1557 (Title VI, Section 504, Title IX, and the Age Act) have long mandated that covered entities provide a notice of nondiscrimination. This final rule maintains that requirement.”

Therefore, these underlying regulations in place since the 1970s still require providers and covered entities to provide notice of nondiscrimination, including information related to how communication assistance can be provided through auxiliary aids and services when required by Section 504 (see the next item below). While Section 1557 no longer requires HHS’ notice of nondiscrimination, following HHS guidance lessens the chance that a provider or covered entity will fail to meet the requirements of the underlying statutes. For more information regarding notice of nondiscrimination, see the Oct. 4, 2016, McGuireWoods alert.

2. Covered Entities Must Consider Whether to Provide Auxiliary Aids.

Covered entities must weigh a patient’s ability to effectively communicate with a provider against the effort to provide auxiliary aids. The “undue hardship” test offers little instruction for covered entities considering the competing interests of patient and provider, and McGuireWoods will continue to provide guidance as case law develops in this area. However, as these settlements show, if a sign language interpreter can allow effective communication, the U.S. government expects its provision to the patient.

By contrast, whether individuals with limited English proficiency (LEP) require meaningful access to interpreters and other auxiliary aids is a narrower test for providers after the recent Trump administration actions discussed in a McGuireWoods alert on July 1, 2020. Unlike the undue hardship test for deaf and hearing-impaired individuals, the four-factor analysis for LEP individuals also considers how likely the provider is to encounter an LEP individual, and further, what resources the provider has at its disposal. The likelihood of encounter question/focus is not present for deaf and hearing-impaired individuals in the undue hardship test — in part, based on the expectation that all communities will have certain individuals protected by federal disability nondiscrimination laws.

If a provider determines that auxiliary services or aids are needed for patients or their caregivers to communicate effectively, then those aids must be provided free of charge. Auxiliary aids and services include qualified sign language interpreters, captioning, large print materials, screen reader software, text telephones and video remote interpreting services, among others listed in HHS guidance. A covered entity may not require individuals to bring their own interpreter or rely on a minor child to interpret. A covered entity also must not rely on an interpreter the individual prefers or brings to an appointment if there is a concern regarding competency, confidentiality or something else. Understanding what auxiliary aids should be provided to individuals is key, as OCR is currently focusing enforcement here.

3. Dearborn and MCR Settlements With OCR.

In settling with OCR, Dearborn OBGYN agreed to comply with Section 1557 and Section 504. Specifically, Dearborn OBGYN agreed to (i) develop policies and procedures to ensure nondiscrimination and nonretaliation and the availability of auxiliary aids; (ii) train its staff regarding these policies and how to effectively communicate with individuals who are deaf or hearing-impaired; (iii) pay the impacted party $7,500; and (iv) undergo 18 months of monitoring by OCR and DOJ. Under these terms, Dearborn OBGYN is required to notify OCR and DOJ if a patient complains of discrimination on the basis of disability, including being denied appropriate auxiliary aids or services. Dearborn OBGYN is also required to revise its policies, as described more in-depth under “Implementing an Auxiliary Aids and Disability Services Plan.”

MCR’s settlement with OCR included an agreement to take actions similar to those in the Dearborn agreement, with some additional requirements. As part of its monitoring, MCR must provide two reports — the first report nine months after the settlement, and another 18 months after the settlement — regarding the status of its compliance with the MCR agreement.

The MCR agreement further provided that MCR would (i) be required to secure “alternative means of effective communication” following any determination not to provide patients or caregivers with their requested auxiliary aid, and to further notify the patient or caregiver of MCR’s grievance procedure; (ii) provide communication assessments for its personnel to utilize in determining what auxiliary aids would best suit a patient or caregiver; and (iii) maintain “[d]ocumentation of any assessment regarding the provision of auxiliary aids and services” in a patient’s records, including if the assessment was for a caregiver. This would include assessments resulting in a decision not to provide a requested auxiliary aid.

The MCR settlement provides useful instructions for providers regarding appropriate assessment of communication needs and a sample communication assessment.

4. Biden Administration Proposed Rulemaking for Section 1557.

A McGuireWoods alert on July 1, 2020, discussed the final Trump administration Section 1557 regulations that went into effect in 2020, and which eased up on the Obama administration’s broader and more detailed requirements. This is the current rule that OCR is enforcing with respect to Section 1557 in these settlements; however, the Biden administration has issued its proposed rulemaking for Section 1557, which would more closely resemble the Obama administration’s broader requirements.

For example, if the proposed rules are adopted, providers would need to train staff on providing language assistance for those who are deaf, are hearing-impaired or have limited English proficiency. The proposed regulations again would require specific notice of nondiscrimination under Section 1557 that goes beyond Section 504 notice of nondiscrimination, which is now required. Comments regarding the Biden administration’s proposed rule are now closed, and it is unclear when the proposed rule will take effect. McGuireWoods will be monitoring the situation and continue to provide updates as information becomes available.

5. Implementing an Auxiliary Aids and Disability Services Plan.

Based on OCR and DOJ’s response in these two settlements, the agreements provide a framework for provider compliance with Section 1557 and Section 504, which may include the following:

  1. Provide appropriate auxiliary aids based on the undue hardship test described above. This includes, but is not limited to, considering qualified interpreters (on-site or remote), note takers, transcription, telephone handsets, services to assist with listening, hearing aids and appropriate modes of communication (perhaps written, as through text, or auditory). The settlement agreements specified that one auxiliary aid may be appropriate in some contexts but not others, so a provider must think critically about the goals of communicating specific information to a specific patient or caregiver, which may change based on the content of an appointment.

    As an example, OCR explained that an interpreter must be able to provide meaningful assistance for both patient and provider, so if the interpreter is qualified to interpret American Sign Language but not spoken words, then the interpreter would be an inappropriate aid to a patient as the interpreter could not communicate with the provider. As further example, a note taker who transcribes written words would be ineffective at assisting a patient who is visually impaired, and it would be more beneficial to audio-record notes.

    Regardless of what auxiliary aids the provider believes would be appropriate, the provider should reach this determination in consultation with the patient.
  2. Ensure a qualified interpreter. A patient who is hearing-impaired may bring a companion — a friend or family member — acting as interpreter, but the provider still must ensure that the patient is able to communicate effectively with the provider whether the patient wants their own interpreter or not. An interpreter must be able to communicate “… effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.” The interpreter can be off-site, so long as the interpreter is able to effectively interpret for the patient. It may be appropriate at some, but not all appointments, to utilize an off-site translator, depending on whether the site impacts effective communication. Providers should refer to either the four-factor analysis or undue hardship test, depending on appropriateness, described above in “Covered Entities Must Consider Whether to Provide Auxiliary Aids.”
  3. Create policies that clearly state antidiscrimination aims. Create policies and procedures that clearly state that the provider “… shall not discriminate against any individual with a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations it provides” or retaliate against patients who seek these services. The policies must mention the availability of auxiliary aids at no charge to the patient and can include additional information about access.
  4. Post a notice of nondiscrimination. Prominently display a notice of nondiscrimination where patients can see it, stating that the provider will not discriminate against patients for a disability, including hearing, and stating how to file a grievance with the provider (there must already be a grievance procedure in place), how to file a complaint with HHS and DOJ, and the details included in its policies, laid out above.

    Under the Obama administration’s 2016 final regulations, all significant communications were required to include taglines and a notice of nondiscrimination. Although the Trump administration’s 2020 final regulations removed this notice requirement, OCR is enforcing the existing Section 504 requirements for notice, so it is best practice to include notice, and the earlier regulations provide a useful framework that covers other potential discrimination laws, too.

For more information about complying with Section 1557, including offering appropriate auxiliary aids and interpreter services, please contact one of the authors of this article.