Barriers, Psychotherapy, and the ADA  Ann Tran, J.D., Staff Attorney  The Therapist  May/June 2011 

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ccording to the U.S. Census Bureau, 54 million Americans have disabilities—that’s 19 percent of the U.S.

population. Eight million, who are 15 years old or older, reported being unable to see printed words; One million, 15 and older, have reported being unable to hear conversations; and 2.5 million, 15 and older, have difficulty having their speech understood. Approximately 16 million have reported limitations in cognitive functioning or have a mental or emotional illness that interferes with daily activities. This number includes eight million Americans with one or more problems that interfere with daily activities, such as being depressed or feeling anxious, trouble getting along with others, trouble concentrating and trouble coping with stress. Many of these individuals who have disabilities are in therapy or may be seeking therapeutic services. Are you well informed of your legal obligations under the Americans with Disabilities Act (ADA) as a therapist who owns a practice or works at a counseling agency? This article will discuss how the ADA affects you and your professional practice when approached by a potential client with a disability. The Americans with Disabilities Act

The ADA is a federal law that provides civil rights protections to individuals with disabilities. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications. Title III of the ADA, 42 U.S.C. §12182, provides that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” The United States Department of Justice (DOJ) enforces the ADA, and promulgated regulations (28 C.F.R. Part 36) to implement Title III of the ADA on July 26, 1991. Place of Public Accommodation

A place of public accommodation is a facility whose operations affect commerce and falls within one of the twelve listed categories, which includes service establishments, such as professional offices of health care providers and social service establishments, such as group homes and nonprofit counseling centers. (42 U.S.C. § 12181.) Thus, Title III of the ADA applies to all private health care providers who own, lease, or operate professional offices, such as doctors, nurses, dentists, psychologists, and therapists, as well as hospitals, health clinics, and counseling agencies. That means that if you own a private therapy practice or work at a counseling agency, the ADA prohibits you and/or your agency from discriminating against persons with disabilities. The law further requires a public accommodation to reasonably modify its policies, practices, or procedures to avoid discrimination. It also applies to a home office. If you have a professional therapy office located in your home, the portion of the home used for public purposes, including the office itself, the waiting area, the restroom, hallways, and the entrance is considered a place of public accommodation. (28 C.F.R. §36.207.) In most circumstances, your therapy office or agency must remove architectural barriers that are structural in nature in existing facilities, when it is readily achievable to do so, and must provide auxiliary aids or services in order to communicate effectively with clients who have disabilities. Removal of Barriers for Existing Facilities1

A public accommodation must remove architectural barriers in existing facilities, where such removal is readily achievable, which means easily accomplishable and able to be carried out without much difficulty or expense. (28 C.F.R. §36.304.) Existing facilities are those built before 1993 and have not been modified after early 1992. Some examples include, but are not limited to, installing ramps, rearranging furniture, widening doors, installing

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accessible door hardware, and installing grab bars in toilet stalls. A public accommodation is urged to take measures to comply with the barrier removal requirements according to the following order of priorities: • • • •

First, a public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation; Second, a public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public; Third, a public accommodation should take measures to provide access to restroom facilities; and Fourth, a public accommodation should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

Readily Achievable

If a public accommodation can demonstrate that barrier removal is not readily achievable, it has to make its goods, services, facilities, privileges, advantages, or accommodations available through alternative means, if those methods are readily achievable. (28 C.F.R. §36.305.) The “readily achievable” requirement is based on the size and resources of the business. Accordingly, large businesses with more resources are expected to take on a more active role in removing barriers than small businesses. Also, the ADA recognizes that economic conditions change from time to time. So, when businesses have resources to remove barriers, they are expected to do so, but when the business profits have decreased, barrier removal may be reduced or delayed. If your therapy office or agency determines that it is not readily achievable to remove certain structural barriers to accommodate clients with disabilities, you must make your services available through alternative means. Some examples include, but are not limited to, offering the client the option of home visits, offering the client telemedicine services, and/or leasing another office with the necessary accommodations on an hourly basis to work with the client. Newly Constructed Facilities

The ADA has more stringent requirements for facilities constructed for first occupancy after January 26, 1993, or have been modified after January 26, 1992. All newly constructed places of public accommodation must be readily accessible to and usable by individuals with disabilities to the extent that it is not structurally impracticable. (28 C.F.R. §36.401.) These facilities must be built in strict compliance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG). There is no cost defense to the new construction requirements. “Structurally impracticable” means unique characteristics of the land prevent the incorporation of accessibility features in a facility. For home offices, the portion used exclusively as a public accommodation and the portion used both as a public accommodation and for residential purposes, including the front sidewalk, if any, the door or entryway, and hallways and restrooms are covered by the new construction and alterations requirements. Furthermore, elevators are generally required for new facilities, except for facilities under three stories or having fewer than 3,000 square feet per floor. This elevator exemption does not apply to buildings housing the professional offices of a health care provider or a health clinic. If your office is on the first floor of a new multistory building and the second floor has other types of offices, an elevator is not required in that facility. However, if the second floor of a new building was designed or intended for use by a health care provider, an elevator would need to be installed in that building. Alterations in a place of public accommodation or commercial facility after January 26, 1992, must also be readily accessible to and usable by individuals with disabilities to the maximum extent feasible. An alteration includes remodeling, renovation, rearrangements in structural parts, and changes and rearrangement of walls and full-height partitions. (28 C.F.R. §36.402.) Service Animals

Additionally, the ADA requires that your therapy practice or counseling agency allow access to individuals with disabilities who use service animals. A service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. (28 C.F.R. §36.104.) The definition of service animals also includes miniature horses that have been individually trained to do work or perform tasks for the benefit of the individual with a disability. (28 C.F.R. §36.302(c)(9).) Other species of animals, whether wild or domestic, trained or untrained, are not service animals according to the ADA. The tasks performed by a service animal must be directly related to the individual’s disability. A few

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examples of tasks provided by the DOJ include, but are not limited to, assisting individuals who are blind with navigation, pulling a wheelchair, aiding an individual during a seizure, getting items for the individual such as medicine, and assisting individuals with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. Providing emotional support, comfort or companionship to an individual does not constitute tasks of a service animal according to the ADA. You may ask your client who utilizes a service animal to remove the service animal from your office or agency only if 1) the animal is out of control and the individual does not take effective action to control it; or 2) the animal is not housebroken. (28 C.F.R. §36.302(c)(2).) If a service animal is properly excluded, you must still allow the client to enter your office or agency without the service animal. When it is not readily apparent that an animal is a service animal, you may ask the client only two questions: 1) whether the animal is required because of a disability; and 2) the work or task the animal has been trained to perform. You cannot require proof of certification or medical documentation as a condition for entry. (28 C.F.R. §36.302(c)(6).) Auxiliary Aids and Services

A public accommodation must also take steps to ensure that no individual with a disability is excluded, denied services, or treated differently than other individuals because of the absence of auxiliary aids and services. (28 C.F.R. §36.302.) The term “auxiliary aids” includes “qualified interpreters on-site or through video remote interpreting (VRI) services2; note takers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing; qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision; acquisition or modification of equipment or devices; and other similar services and actions.” (28 C.F.R. §36.303(b).) The list of “auxiliary aids” is not an all-inclusive list of auxiliary aids and services. According to the DOJ, the type of auxiliary aid or service necessary to ensure effective communication varies according to the length and complexity of the communication involved. Effective Communication

The DOJ, in one of its Business Briefs, entitled Communicating with People Who Are Deaf or Hard of Hearing in Hospital Settings, states that “Effective communication is particularly critical in health care settings where miscommunication may lead to misdiagnosis and improper or delayed medical treatment.” Although the Brief specifically addresses hospital settings, it is a useful guide for offices of health care providers and counseling agencies, including professional therapy offices. The DOJ explains that it may be necessary to provide a qualified sign language interpreter or some other interpreter (such as an oral interpreter or a cued speech interpreter) in more complicated and interactive communications, which includes mental health services like conducting psychotherapy, or counseling. Assess the client’s needs and preferences, which should include asking the client what he or she needs to determine whether communication would be effective with the auxiliary aid or service offered. For instance, not all clients who have a hearing or speech impairment will need or even prefer an interpreter. Some may favor one type of interpreter over another, and some may prefer writing back and forth (on paper or computer). Keep in mind that effective communication is the key. If you and the client are communicating less or if you are providing less information in writing than you would provide when speaking to a client, this may be an indication of ineffective communication. According to the DOJ, a health care provider must be given an opportunity to consult with the patient and make an independent assessment of the type of auxiliary aid, if any, that is necessary to ensure effective communication. An example provided by the DOJ is where a patient who is deaf brings his own sign language interpreter for an office visit without prior consultation with the health care provider. Without prior notice and consultation, the health care provider is not obligated to comply with the unilateral determination by the patient that an interpreter is necessary. However, if the patient believes that the health care provider’s decision will not lead to effective communication, the

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patient may challenge that decision by initiating a lawsuit or filing a complaint with the DOJ. (See ADA Title III Technical Assistance Manual, Covering Public Accommodations and Commercial Facilities.) The DOJ has provided a few examples of methods for communicating with clients who have vision, hearing, or speech impairments. A few methods in communicating with your clients who are blind or visually impaired include: reading printed information such as the Disclosure/Agreement for Services form and the HIPAA Notice of Privacy Practices to the client; providing forms and other information in large print, in Braille, or in audio format for the client to listen to. Methods for communicating with clients who have speech disabilities include: reading notes written by the client, or reading and listening to words communicated by the client’s communication board. Methods for communicating with clients who are deaf or hearing impaired include: utilizing sign language or an oral interpreter, writing notes, or using a real-time captioning service. Sign language interpreters use sign language, a visually interactive language that involves a combination of hand motions, body gestures, and facial expressions to communicate with people who are deaf or hearing impaired. Not all individuals who are deaf or have a hearing impairment are trained in sign language. Some individuals with hearing disabilities are trained in speech reading and can understand spoken words fairly well with assistance from an oral interpreter. Cued speech interpreters use a hand code or cue to represent speech sound. In its analysis of the Regulations, the DOJ has stated that it is generally inappropriate to ask family members and friends to interpret for deaf or hearing impaired clients. According to the DOJ, family members and friends often do not possess sufficient skills to effectively interpret for the client in a medical setting, including therapy sessions. Emotions and conflicting interests may result in the family member or friend unable to interpret “effectively, accurately, and impartially” for the client. Further, utilizing family members or friends as interpreters may raise concerns about client confidentiality. (56 Fed. Reg. at 35553.) Limitations on the ADA Requirements for Providing Aids and Services

Your therapy office is not expected to provide auxiliary aids and services if you can demonstrate that providing auxiliary aids and services may fundamentally alter the nature of the services or would result in an undue burden. (28 C.F.R. §36.303(a).) Fundamental Alteration

A fundamental alteration is a change that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered. It is probably unlikely that a therapist providing auxiliary aids and services to a client with a disability would fundamentally alter the essential nature of the therapeutic services being offered. Undue Burden

An undue burden is something that involves a significant difficulty or expense. Whether or not providing the auxiliary aid or service would result in an undue burden should be evaluated on a case by case basis. Some factors that should be considered in determining whether providing the auxiliary aids and services would result in an undue burden include, but are not limited to the following: • The nature and cost of the auxiliary aid and service; • The overall financial resources of the agency or therapy practice; • The number of persons employed at the practice; and • The effect on expenses and resources, and legitimate safety requirements necessary for safe operation. It may also be difficult to show that an undue burden exists. But when an undue burden can be shown, the therapist still has a duty to furnish an alternative auxiliary aid or service that would not result in an undue burden and, to the maximum extent possible, would ensure effective communication. If providing the auxiliary aid or service does not impose an undue burden on the provider’s business, the DOJ has made it clear that health care providers may not charge clients for the costs of providing auxiliary aids and services. (28 C.F.R. §36.301(c).) The cost of providing an auxiliary aid or service, in some cases, may exceed the charge to the client for the therapy service. The law expects the therapist to treat the costs of providing the auxiliary aid or service as part of the overhead costs of operating a business (so long as it does not impose an undue burden on the practice). Some insurance carriers may, but are not legally required to, reimburse for the costs of providing auxiliary aids or services. It is recommended that, if applicable, you check with the client’s insurance carrier regarding possible reimbursements.

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Federal Tax Credits

Tax credits (Disabled Access Credits) are available to small businesses with 30 or fewer employees or those businesses with total revenues of $1 million or less. Eligible small businesses may claim a tax credit of up to fifty percent of eligible access expenditures that are over $250, but less than $10,250. The amount credited may be up to $5,000 per tax year. For more information, visit the Internal Revenue Service website at www.irs.gov or call (800) 829-3676. You may want to consult with your accountant on this issue. Enforcement

Any individual who believes that he or she, or a specific class of individuals, has been subjected to discrimination prohibited by the ADA may request the DOJ to institute an investigation. The Attorney General will investigate complaints and may initiate a compliance review. The Attorney General may commence a civil action, engage in a formal written settlement agreement, or resolve the issue through informal settlements. Any individual who believes that he or she has been subjected to discrimination may also institute a civil action. The court has the authority to grant temporary, preliminary, or permanent relief; require the therapist or agency to provide an auxiliary aid or service or modify a policy, practice, or procedure, or alternative method; and require the therapist or agency to make facilities readily accessible to and usable by individuals with disabilities. The court may award other relief as the court considers appropriate, including monetary damages to the aggrieved individual. The court may vindicate the public interest and assess a civil penalty against the therapist or agency in an amount not exceeding $50,000 for a first violation, and not exceeding $100,000 for any subsequent violation. (28 C.F.R. §§36.501-36.504.) Conclusion

As a therapist in private practice or at a counseling agency, you have the obligation to comply with the ADA, unless an exemption from the requirements can be successfully shown. It is also important to bear in mind that as a therapist, you have the legal and ethical obligation to not discriminate against individuals with disabilities. You are expected to make a good faith, reasonable effort to comply with the ADA requirements. An individual who believes he or she has been discriminated against has the right to file a complaint with the DOJ or initiate a private lawsuit. Consequently, it may be more cost-effective for you or your agency to provide the accommodations to clients with disabilities, rather than expend what could be a large sum of money, possibly more than what it would cost to provide the accommodations, to defend against a DOJ compliance review or a civil action. ---------------------------------------------------------------------------------------------------------------------------------------Ann Tran, JD, is a Staff Attorney for CAMFT. She is available to answer member calls regarding business, legal, and ethical issues. Additional Resources: • Information about the Americans with Disabilities Act can be found at www.ada.gov or by calling the ADA Information Line at (800) 5140301. • The American Medical Association (www.ama-assn.org) and the American Psychological Association Practice Central (www.apapracticecentral.org) have both provided written material on this issue. The publications are available on their websites.

(Endnotes) 1. The ADA’s regulations and the ADA Standards for Accessible Design, originally published in 1991, set the standard for what makes a facility accessible. The Standards have been updated, which retain many of the original provisions in the 1991 Standards, but they do contain some significant differences. The deadline for complying with the 2010 Standards for Accessible Design is March 15, 2012. Businesses removing barriers before March 15, 2012, have the choice of using either the 1991 Standards or the 2010 Standards. The business must use only one standard for removing barriers in an entire facility. If the business facility was built or altered in the past 20 years in compliance with the 1991 Standards, it does not have to make further modifications in order to comply with the 2010 Standards. 2. VRI service means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering highspeed, wide-bandwidth video connection that delivers high-quality video images. (28 C.F.R. §§36.104.) 

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