After two years of undercover inquiries, in which “testers” enlisted by a non-profit requested accommodations for a fictional deaf grandparent, the Southwest Fair Housing Council has filed a disability-discrimination complaint against at least 14 operators of assisted-living and nursing facilities in Arizona. According to the lawsuit, the facilities named as defendants informed the testers that interpreters would not be provided to the deaf relative, and that the deaf relative could instead communicate with staff through writing. This, the Southwest Fair Housing Council alleges, amounts to a refusal to provide auxiliary aids and services in violation of state and federal nondiscrimination law. See The Southwest Fair Housing Council v. WG Chandler Villas SH, LLC et al., 4:18-cv-00210-RM (D. Ariz. April 20, 2018.).

The plaintiff in this case, the Southwest Fair Housing Council, is represented by the same two law firms that are currently representing a dozen deaf or hard-of-hearing plaintiffs in a disability-discrimination suit against Banner Health, also in the United States District Court for Arizona. In that suit, the plaintiffs allege that Banner Health failed to provide effective auxiliary aids for deaf or hard-of-hearing patients. That case is Paula Cook, et al. v. Banner Health, et al., 2:17-cv-00758-JJT (D. Ariz. March 13, 2017), and an overview of the issues presented in that case can be found here.

Overview of Legal Claims asserted by the Southwest Fair Housing Council

The legal claims asserted by the Southwest Fair Housing Council are based on the federal Fair Housing Act, the Arizona Fair Housing Act, Section 504 of the Rehabilitation Act, Title III of the Americans with Disabilities Act, and Section 1557 of the Affordable Care Act.

As the most recent authority on disability discrimination in healthcare, the law and regulation under Section 1557 of the ACA are illustrative of the requirements for healthcare providers on this issue. Under Section 1557 of the ACA, healthcare providers that accept federal financial assistance must provide effective communication to deaf or hard-of-hearing patients through auxiliary aids and services. These services include qualified in-person interpreters or Video Remote Interpretation services. Importantly, these services must be provided to patients free of charge and in a timely manner. In addition, under the regulation for Section 1557 of the ACA, providers must give “primary consideration” to a patient’s preferred auxiliary aid or service for communication. This means that the provider should honor the patient’s express choice for a service unless doing so would impose an undue financial or administrative burden or fundamentally alter the service. Interpreters must also meet the definition of “qualified” under Section 1557’s regulation.

For additional background information on Section 1557 of the ACA and its new requirements, please see here.

Relief Sought by Southwest Fair Housing Council

In its complaint, the Southwest Fair Housing Council seeks the following relief: a declaration that the defendants have discriminated against deaf individuals in violation of state and federal law; an injunction against the defendants’ practices of denying deaf or hard-of-hearing individuals equal access to their programs; an order requiring defendants to develop and implement policies and practices to provide effective communication to deaf or hard-of-hearing individuals; and damages in the form of compensatory damages, punitive damages, and costs and attorney’s fees.

Steps Long-Term Care Providers Should Take Now

To avoid similar claims of disability discrimination, long-term care providers should take immediate action to comply with Section 1557 and its regulation. For example, providers should:

• Designate an employee responsible for compliance with Section 1557;
• Adopt the required grievance procedure;
• Post the required notices and taglines;
• Provide auxiliary aids and services to patients where appropriate and in a timely manner and free of charge;
• Ensure that all electronic health programs are accessible to individuals with disabilities.

Failure to take these steps and others may expose providers to discrimination liability under Section 1557 of the ACA and similar statutes. Other steps are required to avoid discrimination liability on the basis of other protected classes, such as national origin, as explained in more detail here.