- What accommodations are optometrists required to provide for patients who speak a foreign language?
All providers who receive federal funds from the U.S. Department of Health and Human Services (HHS) for the provision of Medicaid/CHIP services are obligated to make language services available to those with Limited English Proficiency (LEP) under Title VI of the Civil Rights Act and Section 504 of the Rehab Act of 1973 (source: www.medicaid.gov ). State laws may also require a doctor to provide translation services. If the doctor does not participate in Medicaid and does not practice in a state with laws that address the subject, the doctor would not be required by law to provide translation services. However, most providers would like to be able to care for all patients, and there is a range of possible approaches that would allow you to provide such care.
Remember that where required by law (i.e., state law or federal law applicable to Medicaid providers), a doctor is required to provide an effective means of communication with the patient. As is the case with providing care to hearing impaired patients, there is no bright line rule that defines what constitutes an effective means of communication.
For a foreign language speaker, using written means of communication is helpful only if the text has been translated in advance and the optometrist can understand the answers to questions. Effective communication between the patient and the doctor or staff may require a method of real-time communication, in which case commercially-available conference telephone and video language interpretation services are a possible solution. There may also be low cost interpreters available through local social services agencies. A doctor is not required to pay for an interpreter brought by the patient; however, if there is an unresolvable disagreement between the patient and the doctor as to what it takes to facilitate effective communication between the patient and the doctor, the safest approach may be to agree to the patient’s request, in particular for Medicaid providers or doctors who live in states with laws requiring the provision of translation services.
It is not permissible to require a patient to bring his or her own interpreter, whether a family member or professional interpreter; however, in many cases a patient may prefer to have a family member interpret. If the patient requests it, this an acceptable solution.
HIPAA rules do not require a doctor to obtain authorization from the patient in order to share patient information with a professional translator, or a member of the patient’s family present when the care is delivered. While a translator hired by a doctor’s practice as an independent contractor is not a workforce member, a doctor is permitted to disclose patient information to the translator so long as a business associate contract is in place in compliancewith 45 C.F.R. 164.504(e). See Title 45 C.F.R. 164.506(c) for more information.
- What accommodations are optometrists required to provide for hearing-impaired patients?
- As a place of public accommodation, optometrists are required to provide reasonable accommodations to someone with a hearing related disability. The law does not define exactly what is reasonable, but in practice it means something that allows you to provide the same service that you would otherwise provide to a non-disabled person.
For a hearing impaired person, specially prepared written materials describing the test procedure, plus a notepad and laptop (for writing or typing questions), may reasonably accommodate a hearing-impaired person's disability and allow an optometrist to provide the same service. However, if a sign language interpreter is the only way for an optometrist to provide the same service to a patient with hearing disabilities, then the doctor would be required to provide one and bear the cost. Because of the nature of sign-language interpretation, that would mean an in-person interpreter or real time video-interpretation service.
It is not permissible to require a patient to bring his or her own interpreter, whether a family member or professional interpreter; however, if a patient prefers to have a family member interpret, that is an acceptable solution. Information addressing the issue of reasonable accommodations and a list of auxiliary aids for the deaf are available at www.ada.gov, a website maintained by the U.S. Department of Justice Civil Rights Division.
HIPAA rules do not require a doctor to obtain authorization from the patient in order to share patient information with a professional translator, or a member of the patient's family present when the care is delivered. While a translator hired by a doctor's practice as an independent contractor is not a workforce member, a doctor is permitted to disclose patient information to the translator so long as a business associate contract is in place in compliance with 45 C.F.R. 164.504(e). See Title 45 Code of Federal Regulations, Section 164.506(c) for more information.
- Do rest rooms in doctor's offices have to be ADA accessible?
The U.S. Department of Justice and Department of Health and Human Services take the position that bathrooms in doctor’s offices must be ADA accessible. However, exact requirements depend on the characteristics of the building, such as the date it was build or last renovated. The ADA Standards for Accessible Design available on the ADA website ( www.ada.gov) provide more detailed information.
For a definitive answer based on your building’s characteristics, it would be best to consult an architect or an attorney who specializes in ADA law. Doctors who lease space should ensure that the issue of ADA accessibility is addressed in their lease and ideally make the Landlord responsible for providing accessible facilities either in the leased space or building common areas.
- What are guidelines for ADA accessibility for a practice's website?
- The ADA requires that the goods, services, privileges, or activities provided by places of public accommodation must be equally available to people with disabilities. The U.S. Department of Justice takes the position that this requirement extends to business websites, which can be difficult to navigate for those with low vision or physical disabilities. However, there are no regulations that provide specific guidance about how to make websites accessible. In response to a letter from members of Congress, the U.S. Department of Justice wrote in October 2018 that given the lack of any specific regulatory requirements, businesses have flexibility in deciding how to make their websites accessible. In the past, some individuals had successfully brought suit against businesses for failure to meet the voluntary Web Content Accessibility Guidelines (WCAG). The October 2018 DOJ letter specifically refuted the idea that lack of compliance with the WCAG guidelines automatically indicates noncompliance with the ADA. However, the WCAG guidelines should be viewed as a best practice, and business owners who comply with those guidelines can feel certain that their websites would be considered accessible to those with disabilities. The best time to adopt accessibility features for a website is when a new website is being built, substantially overhauled, or moved to a new platform. However, it is possible to incorporate basic accessibility features in an existing page. The WCAG guidelines are available here: https://www.w3.org/TR/WCAG20/. The letter from DOJ may be seen here: https://tinyurl.com/y26t3ntp.
BUSINESS OF OPTOMETRY
- What are my obligations regarding patient records and patient notification when closing a practice?
- When closing a practice, it is best to make plans well in advance of the planned closing date to allow time to notify patients and find a repository for patient records.
Usually, the easiest method of securing patient records is to find another doctor to agree to take custody. It is imperative that there be a written agreement with the new records custodian (in this case, the doctor) requiring the custodian to maintain records in conformance with all state and federal laws regarding patient records and privacy. The doctor taking over the records should also agree to indemnify the original doctor in the event a claim is brought against the original doctor because of the new custodian's failure to properly maintain the records and make them available to patients.
The agreement with the new custodian should also include a provision allowing the original doctor to obtain access to a patient file if necessary in case a need arises in the future, for example to respond to an insurance audit or a lawsuit. Laws regarding how patients must be notified of a practice closure vary from state to state, so always check with your state association and/or state board of optometry for guidance.
Some states permit physicians to publish a notice in a local newspaper announcing the sale or closing of a practice in lieu of particularized notice to each patient. Other states put a time limit on the patient notification obligation, i.e. the doctor must notify only those patients seen within the past two years (the precise number of years may vary). If a closure is anticipated well in advance, and a plan for securing patient records is in place, a practice might consider providing written notice to patients during patient visits, thereby reducing the number of notices that must be mailed.
Finally, the notification to patients should contain information about where patients may obtain care in the future. Special care should be taken to ensure that patients being treated for ongoing conditions receive referral information about doctors of optometry who can continue to treat their condition.
- A doctor of optometry is hiring another optometrist and needs an employment contract. What should be included in the contract?
- Subjects that typically must get considered when drafting employment contracts are the following:
- Noncompete agreements (distance and duration restrictions for where a former employee can practice)
- Payment of expenses such as malpractice insurance and professional society memberships.
Nos. 1 and 2 are highly state specific. A practice that employs a doctor of optometry would want to make sure that it keeps all the patient files and that a physician who leaves cannot set up shop across the street right away. The law mostly lets the employer do this, but there are limits.
Guidance for physician employment contracts are included in these links:
- Can an independent contractor agreement include a noncompete provisions?
- While independent contractor agreements and non-compete provisions do not logically seem to go together, there have been instances when courts have upheld non-compete provisions for contractors. Do not necessarily count on such provisions being unenforceable. One potential issue combining the two matters in the question is the contractor getting labeled as an employee by the Department of Labor, which creates liability. A different option is to enter into a contractor agreement with confidentiality provisions prohibiting the use of patient lists, but that type of arrangement is not ideal for the company. If a company is uncomfortable with utilizing a more watered-down noncompete provision, the business may hire the physician as an employee under some type of noncompete provision. You would need an attorney from the state in which employment took place to look at any agreement you wanted to sign.
- What are the major considerations as it relates to the form of relationship selected between a business and a doctor of optometry (employee or independent contractor)?
- This important decision is a personal one for someone’s business. A major consideration is compliance with the law / IRS / Department of Labor. Three macro factors to help in deciding whether a worker is an employee or independent contractor are behavioral control, financial control, and relationship. A worker should be labeled as an employee if they are working under supervision, are provided detailed instructions, formally evaluated, directed/controlled financially by the business, the hours are strictly controlled, provided employee-type benefits, and/or the relationship is labeled as an employee-employer relationship.
A worker should be labeled as a contractor if the hours are not specially dictated by the business, the worker does not need supervision, there isn’t training, the individual is generally free to look for other business opportunities, there is not the expectation that the relationship will continue indefinitely, there isn’t an evaluation system, and the written contract describes the relationship as a contractor relationship.
Here are the factors from the IRS to help decide: https://www.irs.gov/newsroom/understanding-employee-vs-contractor-designation.