By John W. Egan and Minh N. Vu
Seyfarth Synopsis: Under a new Consent Decree with the DOJ, 24 Arizona eye surgery centers can no longer require patients with mobility disabilities to pay for third-party services to transfer them on and off operating tables, must pay $1M in damages and penalties, and implement comprehensive ADA policies and training.
We predicted that the DOJ would get more aggressive in enforcing Title III of the ADA during the Biden Administration and we were right. On the heels of a comprehensive Consent Decree with UC Berkeley comes a Consent Decree involving 24 eye surgery centers in Arizona.
The Consent Decree concluded a lawsuit the DOJ filed in the U.S. District Court of Arizona against the medical practice operating these eye surgery centers, as well as the organization that provided management, infrastructure, and technology services to that practice, as well as other partner practices. The lawsuit alleged that the eye centers refused to provide transfer assistance to patients who needed such assistance to get onto tables for surgery, and instead required them to pay a medical transportation provider to transport them from their homes in gurneys or stretchers and place them on the surgical table. The DOJ alleged that the defendants had “sometimes” assisted patients, but in 2017 began requiring surgical patients with mobility disabilities who could not bear their own weight to pay for their own assistance. The agency took the position that this was an unlawful surcharge under the ADA, as well as a violation of the obligation to provide reasonable modifications to normal policies, practices, and procedures, free of charge.
Last week, the DOJ and defendants agreed to a 22-page Consent Decree under which defendants would not only stop requiring patients with mobility disabilities to assume transfer-related costs, but also pay $1 million in damages and penalties, including establishing (and publicizing) a claims fund for aggrieved individuals, and implementing ADA policies and staff training. Here are the key aspects of the Consent Decree:
- “Interactive Process” Required For Providing Transfer Assistance. Defendants and partner practices will engage in an “interactive process” with patients in need of transfer assistance when scheduling surgical appointments, which must include consideration of patient preferences and an individualized assessment of patient needs to determine transfer assistance options. Defendants will provide and pay for transfer options that may consist of in-house staff assistance, equipment to provide transfer assistance, or third-party transportation services.
- Policy Requirements. Defendants and partner practices will implement a transfer assistance policy that includes, among other things, a process for conducting individualized assessments for transfer assistance requests, acquiring transfer equipment, training of personnel to provide this assistance, and resolution of related patient disputes. Defendants will also adopt and post a non-discrimination policy on their websites, as well as in employee handbooks and patient materials.
- Staff Training. Defendants and partner practices will provide annual training on ADA Title III requirements for facility accessibility, interacting with individuals with disabilities, and techniques for safely transferring individuals with disabilities to and from medical equipment, examination tables, and surgical tables.
- Claims Fund, Damages, and Civil Penalty. Defendants will deposit a sum of $725,000 into an independently-administered claims fund for aggrieved persons and pay for the administration of the fund. The fund is to be distributed, in its entirety, to patients and prospective patients who, since 2017, were advised that they needed to pay for third-party medical personnel to transport them to surgical appointments. Additionally, defendants will pay compensatory damages in the amount of $225,000 to specific individuals to be identified by the DOJ, as well as a civil penalty of $50,000 to the United States Treasury.
- Settlement Notice. Defendants will notify patients eligible for compensation by U.S. Mail and e-mail monthly for one year. Notice will also be provided on defendants’ websites, and this posting must conform to the Web Content Accessibility Guidelines (WCAG), Version 2.0, Level AA. Additionally, once a month for at least 6 months, defendants will “post, pin, and maintain a tweet” on their Twitter accounts publicizing the Notice, and do the same on their Instagram and Facebook pages.
* * *
The DOJ’s position is generally consistent with its previous guidance entitled Access to Medical Care for Individuals with Mobility Disabilities issued in July 2010. In response to FAQs addressing accessible services and facilities at doctors’ offices, clinics, and other health care providers, the guidance states that medical personnel must provide “reasonable assistance” to enable individuals with mobility disabilities to receive medical care, which may include providing aid, through trained personnel and potentially with the assistance of lifts or other medical equipment, to facilitate the transfer in and out of mobility devices as necessary to receive treatment and care.
The DOJ’ s position that the ADA requires health care providers to provide transfer assistance in health care settings raises a thorny question for health care providers with limited staff who neither have the training nor physical strength to provide such assistance. Does a dental practice with one dentist, a receptionist and a dental assistant need to hire additional staff to provide transfer assistance, for example? The ADA and its implementing regulations state that public accommodations do not have to modify a policy, practice, or procedure that “fundamentally alters” a public accommodation’s services or facilities, but this defense has not been tested in the context of transfer assistance in the health care setting. The defendants in this case elected not to test this defense. Had they done so, the analysis would have been fact intensive and would have required an analysis of their operations, the types of patient assistance they already provide, the nature of the services provided, and other factors.
Medical providers of all sizes should take note, evaluate their own protocols for handling transfer requests, and consult with knowledgeable counsel as to the ADA compliance considerations that these issues raise.
Edited by Kristina Launey