The Legal Doctor

The Legal Doctor

Overviews of common legal issues

FLORIDA MEDICAL ASSOCIATION

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INTRODUCTION

The articles in The Legal Doctor do not constitute legal advice and are presented for educational purposes only. The information contained in The Legal Doctor should not be taken as a substitute for legal advice, which should be obtained from personal legal counsel. The information presented in these articles is based upon current Florida and federal law and is subject to change based on changes in Florida and federal law. The FMA hopes that the information provided here and in its other publications continues to assist physicians in answering many of their most common legal questions allowing them to treat patients, instead of addressing legal concerns.

Table of Contents Accommodating Hearing-Impaired Patients Ada And Treatment Of Hiv Infected Patients Adverse Incident Reports Advertising Aids And Hiv Balance Billing Of Hmo Patients Balance Billing And Preferred Provider Organization Canadian Drugs And Prescriptions Child, Elder And Spousal Violence Collection Of Deceased Patient's Bill Collection Of Out-Of-State Debts Communications Regarding Former Associates Death Certificates Deceased Physicians Disclosure Of Medical Malpractice Liability Coverage Disease Reporting Requirements (Emtala) Provision Of Emergency On-Call Services By Physicians In Hospitals End Of Life Care Erisa-Insurers May Be Held Liable For Misrepresentation Establishing A Physician Fee Schedule Ethics Of Capitation Expert Witness Fees Family And Medical Leave Act Of 1993 Florida Patient's Bill Of Rights & Responsibilities Gifts To Physicians From The Pharmaceutical Industry Hmo Reimbursement For Emergency Care And Services Hurricane Preparedness Impaired Practitioners Intractable Pain Statute Limited English Proficient (Lep) Patients Managed Care Contracts Things To Consider Medical Assistants Medical Care For Minors Medical Clinic Registration Medical Records

Medicare Contractual Options Noncompetition Clauses Opening Or Relocating Your Practice Osha Requirements For A Medical Office Paperwork Preparation Fee Patient-Physician Relationship Physician Collective Action Physician Treatment Of Relatives Political Involvement By Physicians Pregnant Minors' Rights Prescribing Standards Via Telemedicine Prescription Renewals Private Contracting And Medicare Professional Courtesy Professional Liability Insurance Requirements Questions Commonly Asked By Physicians Reporting Impaired Drivers Retired Licenses And Limited Licenses Retiring/Closing/Relocating A Practice School Physicals Statute Of Limitations For Medical Malpractice Subpoena Compliance Things To Consider Before Signing An Employment Contract Unlicensed Activity Volunteer Immunity Workers' Compensation: Certified Health Care Provider Workers' Compensation & The Physician Businessman FORMS: Authorization For Use Or Disclosure Of Protected Health Information Consent To Treatment

Health Care Arbitration Agreement Hiv And Aids Informed Consent Form

Letter From Physician To Attorney Who Has Subpoenaed Medical Records

ACCOMMODATING HEARING-IMPAIRED PATIENTS

According to the Americans with Disabilities Act, which became law in 1990, a physician's office is considered a "public accommodation", and therefore must modify its policies and practices which discriminate or exclude disabled persons. 42 U.S.C. ?12181(7); 28 CFR ?36.104. Specifically, the ADA prohibits physicians from refusing to treat a hearing impaired person because of the handicap, and requires the physician to provide such auxiliary aids and services necessary "to communicate effectively with its customers, clients, patients or participants who have disabilities affecting hearing, vision, or speech." 56 Fed. Reg. 35553 (July 26, 1991). In addition, a physician may not charge the patient for the cost of providing such necessary aids and services. 28 CFR ?36.301(c).

The law does not, however, absolutely require physicians to provide an interpreter for every hearing impaired person. The regulations adopted pursuant to the ADA require that a physician's office "furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities." 28 CFR ?36.303(c). The communication must be as effective as communication with persons without a hearing impairment. The regulations define "auxiliary aids and services" to include qualified interpreters, notetakers, written materials or "other effective methods of making aurally delivered materials available to individuals with hearing impairments." 28 CFR ?36.303(b)(1).

The comments to the ADA regulations make it clear that the auxiliary aid requirement is a flexible one. A physician is not required to hire a qualified interpreter in every case. A physician can choose among various alternatives "as long as the result is effective communication." The physician does not have to give primary consideration to the request of the person with the hearing impairment. The physician, however, should consult with the person before providing a specific auxiliary aid or service. This will allow the physician to make an independent determination as to what type of auxiliary aid is necessary. 56 FR 35544, 35567 (July 26, 1991).

Some situations (for example, lengthy or complex health matters, including major surgery) require the use of a qualified interpreter to ensure "effective communication." In addition, if the hearingimpaired patient does not understand English or cannot read and write, the use of an interpreter will be necessary to ensure "effective communication." Although the regulations do not define what constitutes lengthy or complex health matters, the ADA Title III Technical Assistance Manual provides several illustrations of situations where an interpreter may be required. For example:

ILLUSTRATION 1: H goes to his doctor for a bi-weekly check-up, during which the nurse records H's blood pressure and weight. Exchanging notes and using gestures are likely to provide an effective means of communication at this type of check-up.

BUT: Upon experiencing symptoms of a mild stroke, H returns to his doctor for a thorough examination and battery of tests and requests that an interpreter be provided. H's doctor should arrange for the services of a qualified interpreter, as an interpreter is likely to be necessary for effective communication with H, given the length and complexity of the communication involved.

ILLUSTRATION 2: A patient who is deaf brings his own sign language interpreter for an office visit without prior consultation and bills the physician for the cost of the interpreter. The physician is not obligated to comply with the unilateral determination by the patient that an interpreter is necessary. The physician must be given an opportunity to consult with the patient and make an independent assessment of what type of auxiliary aid, if any, is necessary to ensure effective communication. If the patient believes that the physician's decision will not lead to effective communication, then the patient may challenge that decision under title III by initiating litigation or filing a complaint with the Department of Justice (see III-8.0000).

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