From Ramps to Skulls

Shortly after he opened his first office, Michael Bobo took a life-sized plastic skull, drilled holes in it, and placed metal plates and screws in its jaws. Bobo, a maxillofacial surgeon who also has a degree in dentistry, wasn't practicing his art with this toy.

"Patients are often unclear about what we mean when we say that they will have plates on their jaws," explains Bobo, who has offices in small neighboring cities in Kentucky and Tennessee. "After practicing for a few months out of residency and seeing a fearful look come over patients when explaining these procedures, I decided a true, 3-D model such as this would be helpful. I use the skull to demonstrate the size and low-profile nature of titanium bone plates that I use to repair facial fractures."

And although it may not appear so at first, the large skulls - Bobo now has two, one for each office - also help him comply with the Americans with Disabilities Act (ADA). How? They help hearing-impaired patients understand the procedures they will undergo, and those who are visually impaired can place their hands on the skulls to feel the plates and screws. "There is generally not good, mainstream patient knowledge of the basic techniques of maxillofacial surgery, but a little extra time spent with the patient and models such as this help," Bobo says.

The ADA, passed in 1990, prohibits employers who have more than 15 workers, including medical groups, from discriminating against disabled workers. But physicians have added responsibilities under the law. Because medical offices have been deemed "public accommodations," your facility must be equipped to serve people with physical and mental disabilities. And you may need to accommodate the disabled in the way you deliver service.

According to the ADA, the term disability means a physical or mental impairment that "substantially limits" one or more of the "major life activities" of an individual. A person is also considered disabled if they have a "record of such an impairment," or is "regarded as having such an impairment."

Major life activities include bathing, walking, working, and taking care of oneself. Examples of disabilities include AIDS, alcoholism, depression, heart disease, complications from pregnancy, and hearing and speech impairments.

Generally, building owners must pay for and install items that make offices handicapped-accessible, such as special door handles and grab bars in bathrooms. If you lease your office, the lines of responsibility can be blurry. Unless your lease specifies that the landlord will equip the office, the responsibility will fall to your practice.

Moreover, you must also ensure there is no discrimination in your delivery of "goods and services" to disabled individuals. This means you must enhance your communication with disabled patients so they can understand their medical problems and your treatment plan for them.

You will have an easier time of compliance if you view the ADA like Bobo does - not as an onerous regulation, but as a way of enhancing care and the use of the office for both patients and employees.

Bobo's two offices also have ramps, wide doorways, and handicapped-accessible bathrooms. Like the skulls, these accommodations make office visits efficient for more than just disabled patients. "Many of our patients are sedated for surgery, and we will use a wheelchair to get them to their vehicles after surgery," Bobo says.

Renovations trigger law

Medical offices that were established before the effective date of the ADA do not have to retrofit their facilities to comply, but if you are renovating your building, then you must follow the rules.

A seven-surgeon orthopedic practice in Rockville, Md. used its renovation as an opportunity to outfit its office to be more amenable to handicapped patients and to improve patient flow.

For nearly 25 years, Shady Grove Orthopaedic Associates, PA, ran the way many busy practices do - its doctors tripped over each other in the hallways, shouted when they wanted an X-ray taken, and stood in the halls mumbling into their Dictaphones.

Patients rolled in and out in their wheelchairs through tight hallways, or struggled on crutches to reach an exam room. Some couldn't use the office bathroom and had to use the public facilities out in the building hallway.

That all changed two years ago. Following an extensive renovation, patients now can use a handicapped-accessible bathroom and travel through wide doorways and halls. Physicians practice in a "pod" composed of four exam rooms and a private area for patient interviews and dictation, says administrator Joyce Alexander.

"We also added automatic doors," she says. "We have a button inside the office and in the hall to make it easier for patients. That was something that was not required by the ADA but we thought it would be helpful.

"Our practice grew from three to seven physicians. We were in an office that was 10 to 15 years old. It was easier to just gut it. We moved our business office to the second floor and expanded the office from seven to 12 exam rooms."

Alexander said she could only imagine what disabled patients went through using the office and the bathroom, in particular, before the renovations. "It was a struggle for us with that [old] bathroom," she says. "We couldn't help our patients."

Hearing loss common

Compliance with the law is not the only reason to be prepared to care for disabled patients. As the nation ages, it is inevitable that you will see more patients with physical and mental impairments. For example, the National Institute of Deafness and Other Communication Disorders reports that a third of Americans over 60 and up to half of those over 75 have some degree of hearing loss. Other statistics indicate only about 25 percent use hearing aids.

"In terms of patients who are hearing impaired, whether [they] are impaired or completely deaf, you have to undergo some analysis as to how you are going to communicate effectively with them," says Joan M. Roediger, a partner with Obermayer, Rebmann, Maxwell, & Hippel LLP, a Philadelphia law firm. Clear communication, Roediger points out, "becomes really essential for surgeons when you are trying to get informed consent."

Under the law, the hearing-disabled individuals may select the method of communication, which may simply be lip reading, or asking the speaker to talk more slowly. If a family member is offered as an interpreter, you need to consider whether that is adequate, Roediger adds. There may be sensitivities involved; for example, an adult child might not want her elderly parent to hear some piece of medical news you are trying to convey.

"The most common question I get asked about interpreters is [their use] for other language speakers," Roediger says. "They are not covered under the ADA."

If you are using a sign-language interpreter, it is important to find out if the type of signing the interpreter does is the same as your patient's; there is more than one kind. And don't forget to have the interpreter sign a business associate agreement, required under the federal privacy rule, which commits interpreters to safeguard the confidentiality of the patient's medical information.

Physicians as employers

But the ADA, of course, protects more than just patients, notes Richard Haines, president of Medical Design International of Atlanta, who planned Alexander's office renovation.

"We do see a sensitivity from physicians about the ADA and patients, but I don't think they think about handicapped staff," he says. "It does not occur to them that staff might not always be ambulatory."

The ADA protects physicians, too. Haines has worked for several practices in which a physician became disabled during his career. In one case, the physician was injured in a biking accident, and another developed multiple sclerosis.

Typically, you must wait for a worker who may be affected by the ADA to approach you for an accommodation. This aspect of compliance is sometimes tough for physicians, because they are, well, physicians, says Madonna A. McGwin, an attorney with Holland and Knight LLP in Washington, D.C.

"Physicians are in the business of assessing symptoms and diagnosing conditions, which they must avoid when dealing with their own employees," McGwin says. "For this reason, I recommend that all employee disability accommodation issues be handled by an office manager or administrator - not the physicians in the practice."

A long-time employee's performance may begin to decline - say, a formerly high-performing and precise clerk begins to misfile charts. He may have developed a disability, says McGwin.

"Physicians have to be sure to act as an employer, not as a doctor," she says. "They have to resist the temptation of assuming they know what is wrong with the person based on their observation. Don't presume you know the employee's condition."

Instead, she says, "Always focus on the job performance. Put the burden on the employee to get a note from his healthcare provider explaining [for example] the effects of the medication on the employee's ability to do his job. If an employee is requesting accommodation based on the disability, even if you have been told the nature of the disability by the employee, get the medical certification from the employee's healthcare provider," she adds.

If the symptoms he exhibits don't affect his job performance, you should do nothing, she advises. But if he is unable to work, or the performance is unsatisfactory, you may need to give him some sort of reasonable accommodation.

A person who is in treatment for alcoholism or drug addiction, for example, may need permission to attend meetings or therapy sessions during office hours, McGwin says. Depending on the individual's job requirements, that may or may not be a reasonable accommodation.

The note should also identify the nature, severity, and duration of the impairment, the activities that the impairment limits, and how it affects his ability to do his job. Provided that the employee's problem meets the definition of a disability, the ADA requires you to grant the accommodation request - except when the accommodation would impose an "undue financial or administrative" burden on your practice.

"The other side of the coin for doctors to remember is they will be the treating physicians for other employers' [workers]," McGwin adds. "They need to take a look at what is being requested of them. They may be asked to certify whether the person can do their job. One of the questions is the extent to which the impairment limits the person's ability to do their duties."

In this case, you need to have a detailed understanding of the person's essential and nonessential job duties, McGwin says. "The doctor has to decide what is best for the employee, for their physical or mental health. If there is some accommodation that could be possible, they should suggest it." The worker's employer will decide if the suggested accommodation is reasonable.

Hiring and firing

Must you hire someone who is disabled if he or she applies? No, says McGwin. If a person with a disability is an applicant, you should fully explore the person's qualifications for the position, as you would with any other candidate.

"During job interviews, employers may not ask applicants about any health conditions or whether they would need accommodation to perform the job," she says. "Even though, as a doctor, you are curious about a symptom you think you see, you should never ask the applicant about any underlying medical issues."

There is a very narrow exception to the don't-ask-at-interviews rule. Say you want to hire a nurse whose primary "essential functions" are giving allergy shots or taking blood - and the applicant's hands noticeably shake, making you question whether the person could handle the protocols for the use of needles.

"You are not supposed to ask if they need accommodation before you extend an offer. But if there is an obvious disability that appears inconsistent with the requirements of the job, then you could ask them to demonstrate how they would do the job," McGwin says. "You can ask - as long as the questions are not phrased in terms of a disability."

Most employers fear that, because of the ADA, they will never be able to terminate an employee who has a disability. This is untrue, McGwin says. A person who happens to have a disability who violates a work rule - and no disability issues are involved - must be treated like any other employee. If the violation warrants termination, termination should be the result.

Theresa Defino is an editor for Physicians Practice with more than 15 years' experience covering economic, legislative, and clinical aspects of healthcare issues. She can be reached at tdefino@physicianspractice.com.

This article originally appeared in the July/August 2005 issue of Physicians Practice.