Health care providers frequently face ADA lawsuits from patients challenging their disability access policies or procedures, especially with respect to providing sign language interpreting services and other auxiliary aids and services to patients who are deaf, removing physical accessibility barriers for patients who have mobility disabilities, and changing policies and procedures to accommodate patients with all kinds of disabilities.

When faced with these expensive and time-consuming lawsuits, a major tool in providers’ defense arsenal has simply been to remove the challenged barrier, or change the policy or procedure at issue. Once this is done, the provider moves to dismiss the lawsuit as moot and lacking standing. Often, the mere raising of this approach is enough to generate significant downward movement in plaintiff’s settlement position, because the plaintiff’s bar is aware that a mootness dismissal not only ends the suit, but prevents them from recovering an attorney’s fee award from the provider.

Last week, however, the United States Supreme Court took away this tool from providers’ defense arsenal. The Court, in Uzuegbunam v. Preczewksi, ruled that a federal civil rights lawsuit is not moot because the defendant rectifies the offending policy or procedure after being sued. Rather, a plaintiff can keep the lawsuit alive by continuing to assert a claim for nominal damages (typically $1). This claim, if successful, could lead to a substantial attorney’s fee award in plaintiff’s favor. While the Uzuegbunam lawsuit involved free-speech rights on a public college campus, there is a substantial likelihood that it will be applied by lower courts on ADA claims involving patient accessibility issues.

For health care providers, the takeaway message from Uzuegbunam is simple: It is vitally important to conduct a compliance review of your patient accessibility policies, procedures, and barriers now, before there is a lawsuit.