Department of Justice Reaches Settlement Agreement with Adventist Health System Georgia, Inc.

On January 4, 2022, the Department of Justice (DOJ) reached a settlement agreement with Adventist Health System Georgia, Inc. (Advent), a healthcare company that provides inpatient and outpatient treatment programs. 

Settlement reached

The DOJ initiated its investigation after a complaint was received by a patient and her companion, both of whom are deaf, in which they repeatedly requested an ASL interpreter during her hospital stay for the birth of the Complainant's child. The complaint alleges that Advent refused the request on multiple occasions, even when in response to an emergency. 

The DOJ also alleges that the Complainant and her companion doubted their safety and that, even after the delivery of the child, were refused access to an ASL interpreter and as such, were unaware of the types of medication and vaccinations the child received and were denied the ability to exchange other medical information throughout their stay. 

The DOJ alleged that advent violated Title III of the Americans with Disabilities Act (ADA) by failing to provide Auxiliary Aids and Services required for Effective Communication.  

Advent action items

In its settlement with the DOJ, Advent has agreed to actions items related to Effective Communication, including: 

• Full enjoyment of programs and services: Advent shall ensure that all patients and companions receive full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations provided by the organization. 
• Access to Auxiliary Aids and Services: Advent shall provide appropriate Auxiliary Aids and Services, including Qualified Interpreters, within 3 hours of assessing the communication needs of the patient (ASL Interpreter) or 15 minutes within assessment if the service is provided via VRI. Other Auxiliary Aids and Services are to be used until an on-site interpreter arrives. Patients with ongoing relationships with Advent shall be documented to have accommodation needs to ensure Effective Communication at each visit. VRI shall not be used when it is not likely to ensure Effective Communication. 
• Effective Communication Policy: Within 60 days of the effective date of the agreement, Advent will submit a revised Effective Communication policy to the DOJ for review. 
• Individual Assessment: Advent will consult with each patient to determine their communication needs as soon as practical. 
• Notice of Auxiliary Aids and Services: Advent will advise patients of the availability of Auxiliary Aids and Services via Notice which is to be prominently displayed at every admissions and receptions desk − if the patient does not initiate a request for accommodation but staff clearly perceive the patient to be deaf or hard of hearing, they are to be provided a paper copy of the Notice. Signage shall also be placed in all areas in which the Patient's Bill of Rights is legally required to be posted. 
• Auxiliary Aids and Services Form: Advent will ask patients to answer questions about their preferred means of communication. 
• Consultation: In the event that the initial form of communication is no longer effective, Advent will consult with the patient to identify alternative forms of communication. 
• Patient documentation: Advent will ensure all staff is aware of the patient's needs. The patient's medical record shall contain a notation to alert staff of the fact that the patient is deaf or hard of hearing. 
• Friends and family: Advent will not rely on friends or family to interpret unless there is an imminent threat to safety or the patient specifically requests that the family or friend interpret. Advent will not rely on a minor child to interpret. 
• Designation of ADA Coordinator: Advent will designate an ADA Coordinator, who will receive proper training in Effective Communication and be available 24 hours a day, 7 days a week. 
• Training of staff: All staff that interacts with patients shall receive ADA training specifically related to accommodation and Effective Communication. 
• Grievance process: Advent will establish a grievance procedure to be managed by the ADA Coordinator. 

Key takeaways

What may be the most relevant takeaway (though it shouldn't be surprising at this point) is the consistency of the DOJ and the action items prescribed to Advent. 

Organizations looking to understand their requirements under the ADA would do well to research the agreements reached by the DOJ. The formula and principles for successful implementation are fairly straight-forward (at a high level): 

1. Ensure policies and procedures reflect the requirement that persons with disabilities are afforded equal access to programs and services offered by the entity (that includes facilities, programmatic access, online accessibility, and communication). 
2. Ensure the entity has readily available access to services needed to provide equal access. 
3. Ensure staff is trained to provide those services. 
4. Designate someone to ensure programs and policies are implemented and maintained as required and establish processes to identify other access barriers and complaint resolution. 

Of course, that's not a roadmap for building a "model" program, but 30 years after the ADA's passage, it's truly unfortunate that organizations are still struggling to meet these basic requirements. 

Conclusion

The fact that we see agreement after agreement with the same provisions, "designate an ADA Coordinator", "Ensure equitable access", "Provide Accommodation," etc. just speaks to the work that still needs to be done and offers justification for the passage of the ADA in the first place. 

As many have observed, goodwill alone will not do the trick. If covered entities could be relied upon to do the right thing, the ADA would not exist.  

Instead, advocates should look to the precedent set by the DOJ and advise their leadership appropriately. Given how interpretive the ADA is − which is often a principal barrier for ADA Coordinators and Accessibility Professionals within organizations looking to convince leadership to embrace it − the settlements reached by the DOJ offer direct, unambiguous guidance and insight into what the DOJ understands compliance with the ADA to be.