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Health Law Update, Fall 2009

Providing Medical Treatment to the Hearing Impaired

Adequate communication is an essential component in the physician-patient relationship. In order to best serve the health needs of their patients, medical providers must be able to effectively communicate the information necessary for patients to make informed health care decisions. This can be complicated by obstacles to communication, in particular, with deaf and hearing impaired patients. Federal law mandates that health care providers make certain accommodations in order to provide adequate avenues of communication for hearing impaired patients.

Federal disability discrimination laws mandate equal access to and benefit from health care services. Specifically, Title III of the Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities by places of public accommodation. Private health care providers are considered “places of public accommodation” for the purposes of this Act. The provisions of Title III of the ADA apply to all private health care providers regardless of the size of their office or the number of employees. A health care provider may not refuse service to a hearing impaired individual based on that disability.

In order to ensure equal access to health care services for the deaf and hearing impaired, the law requires public and private health care providers to provide the auxiliary aids or services necessary to facilitate effective communication. This serves to ensure that communication with people who are deaf or hard of hearing is as effective as communication with others. The type of auxiliary aid and service required by the ADA varies based on the requirements of the individual. These may include any equipment or services a person needs to access and understand aural information and to engage in effective communication.

The rule includes qualified interpreters, computer-aided transcription services, written materials, assistive listening devices, captioning, or other proven methods of making aural information accessible to a hearing impaired individual. While the provider may decide what type of aid will be provided, it is expected that the provider consult with the person and consider his or her self-assessed communication needs before deciding the type of auxiliary service to provide. A patient may not force a provider to utilize a certain type of auxiliary aid or service if the method chosen by the provider is sufficient.

A qualified interpreter is not required when other auxiliary aids or services may suffice. However, there are times when the services of a qualified interpreter may prove necessary. In particular, a qualified interpreter may be useful when the information exchanged is sufficiently lengthy or complex. Depending on the circumstance, this may or may not include discussing a patient’s medical history, obtaining informed consent, explaining diagnoses, treatment, and the prognoses of an illness, conducting psychotherapy, communicating prior to and after major medical procedures, providing complex instructions regarding medication, explaining medical costs and insurance, and explaining patient care upon discharge from a medical facility. Also, a qualified interpreter may be useful for aspects of the care and not others. It should be noted that a “qualified interpreter” is one who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any specialized vocabulary. The law does not require that the interpreter be certified as long as they are qualified. Requiring a family member or friend to serve as an interpreter is generally not acceptable under the requirements of the ADA.

If providing an auxiliary aid constitutes an undue burden as defined by the ADA, it is not required. However, this has been interpreted as an extremely high standard which will only apply when there is a very significant difficulty or expense. In certain situations, the cost of providing an auxiliary aid or service may even exceed the charge to the patient for the health care service. This is not generally considered an “undue burden.” A health care provider is expected to treat the cost of providing auxiliary services as part of the overhead cost of operating a business. The law requires that the cost of this service be borne by the medical provider. The cost may not be charged to the patient. It should be noted that tax credits are available.

Health care providers should also be aware that their obligation is not limited to patients and extends to customers, clients, and other individuals who are seeking or receiving services. For example, a deaf parent of a hearing child may require an auxiliary aid to effectively communicate with the service provider regarding their child’s health care.

The driving purpose behind these requirements is that some form of auxiliary aid and service is often needed to provide safe and effective medical treatment. These help safeguard the provider as much as the patient by ensuring effective communicating. Without these aids, medical staff run the risk of not understanding the patient’s symptoms, misdiagnosing the patient’s medical problem, and prescribing inadequate or possibly harmful treatment. Further, it is essential that the patient be able to understand the relevant medical instructions and warnings.

Office-Based Anesthesia

Due to the convenience and lower costs of office-based anesthesia (“OBA”), the total number of procedures performed outside of the hospital setting has sky-rocketed in recent years. In a recent study by the American Society of Aesthetic Plastic Surgery, between 1997 to 2007, surgical procedures increased from 973,000 to two million. Of these surgical procedures, fifty-four percent were performed within the office setting.

Given this significant rise in OBA, beginning September 1, 2005, the Texas Medical Board (“TMB”) required that each physician who provides anesthesia services or performs a procedure for which anesthesia services are provided in an outpatient setting, (including the use of analgesics and anxiolytics) must register and pay a fee of $210.00. Additionally, each physician who registers with the TMB for OBA must identify what level of anesthesia services are provided at each practice site and the site supervisor. The registration for OBA is to be combined with the physician biennial registration.
However, the OBA registration requirements do not apply to physicians in the following settings: 1) an outpatient setting in which only local anesthesia, peripheral nerve blocks, or both are used; 2) any setting physically located outside the State of Texas; 3) a licensed hospital, including an outpatient facility of the hospital that is separately located apart from the hospital; 4) a licensed ambulatory surgical center; 5) a clinic located on land recognized as tribal land by the federal government and maintained or operated by a federally recognized Indian tribe or tribal organization as listed by the United States secretary of the interior; 6) a facility maintained or operated by a state or governmental entity; 7) a clinic directly maintained or operated by the United States or by any of its departments, officers, or agencies; 8) an outpatient setting accredited by: a) the Joint Commission on Accreditation of Healthcare Organizations relating to ambulatory surgical centers; b) the American Association for the Accreditation of Ambulatory Surgery Facilities; or c) the Accreditation Association for Ambulatory Health Care.

Finally of note, physicians or surgeons are to alert the Board in writing within fifteen days if a procedure performed pursuant to the OBA regulations resulted in an unanticipated and unplanned transport of the patient to a hospital for observation or treatment for a period in excess of twenty-four hours, or a patient’s death intraoperatively or within a postoperative period of seventy-two hours.


In 2006, the medical and legal communities were shocked when a Dallas County jury awarded a cardiologist approximately $366 million dollars in damages arising out of the temporary suspension of a cardiologist’s cardiac catherization lab and echocardiography privileges for five months and the restriction of privileges for a period of fewer than twenty-nine (29) days. The District Court reduced the award to $33 million and the medical and legal communities scrambled to assure that any and all peer review processes strictly complied with the hospital’s governing body’s bylaws. However, in July 2008, the 5th Court of Appeals in Dallas reversed the $33 million dollar District Court Judgment and rendered Judgment for Defendants.

The Health Care Quality Improvement Act granted immunity from suits for money damages to participants in professional peer review action if the action was taken:

(1) in the reasonable belief that the action was in the furtherance of quality health care;

(2) after a reasonable effort to obtain the facts of the matter;

(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances; and

(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement under paragraph (3).

Furthermore, there is a presumption that the professional review action meets the standards for immunity that can be rebutted by a preponderance of the evidence.

According to the 5th Court of Appeals, the Defendants were immune under the HCQIA (Health Care Quality Improvement Act) and held that Plaintiff “. . . failed to rebut the statutory presumption that peer review actions were taken in compliance with the statutory standards. . .” and “. . . the evidence independently demonstrates that the peer review action met the statutory requirements.” Furthermore, the 5th Court of Appeals noted that the “reasonable” requirements in the HCQIA were meant to create anobjective standard of performance rather than a subjective good faith standard.

We included this update because the ultimate disposition of the case (reversed and rendered for Defendants) was not widely publicized. Many physicians were aware of the initial widely proclaimed massive verdict against the hospital and its physicians, but were unaware of the eventual case outcome. The chilling effect the verdict initially had on physicians’ willingness to participate in hospital peer review should now be tempered by the eventual outcome.

Texas Medical Board Update

The Texas Medical Board (the “Board”) recently released its statistics for Fiscal Year 2008 which show a slight decrease in complaints over the last year. The most recent statistics show that the Board received 6,514 complaints, which is 400 complaints fewer than last year but unfortunately still up nearly 1,300 from the 5,211 received in Fiscal Year 2006.

While not every complaint results in the Board opening an investigation, each and every complaint demands a timely and effective response from the physician. Chamblee, Ryan, Kershaw & Anderson, P.C. remains committed to providing physicians informed and experienced counsel to successfully navigate the process of a Board complaint and investigation. Regardless of the apparent lack of merit, it is imperative that the physician treat the complaint seriously and take the necessary steps to respond intelligently.

Should you receive a Board complaint, the best advice is to seek counsel immediately. The Board has set forth numerous procedural rules, deadlines, and other requirements that must be complied with for a physician to present their side of the story. Once a complaint is received, a detailed response from the physician is warranted. This response from the physician works to provide the Board with the other half of the equation so the Board may properly assess the merits of the complaint.