THE ADA AND ACCESS TO HEALTH CARE

Physical Access to Health Care Services

The essential starting point for understanding the significance of the ADA in a health care context is the common law, the basic set of judicially fashioned legal principles that form the foundation of the American legal system.38 As part of common law, health care professionals and institutions were considered to have no legal duty of care. As private enterprises, they were not considered places of public accommodation in the nature of inns and common carriers; as a result, and regardless of the threat posed, they had no legal obligation either to undertake care39 or to refrain from discriminatory practices in the selection of their customers.40

During the latter half of the 20th century, the “no-duty” principle was legislatively abrogated (i.e., set aside or modified) in certain respects, most notably in state laws related to hospital emergency care and, ultimately, in the case of federal law governing the conduct of hospitals, specifically, the Hospital Survey and Construction Act of 1946 (the Hill Burton Act) and the Emergency Treatment and Labor Act.41 Earlier, Title VI the Civil Rights Act of 1964 had established a nondiscrimination principle in the case of health care services furnished by private providers receiving federal funds, with a non-statutory exception in the case of private physicians receiving payments under Medicare Part B only.42 At the same time, Title II of the 1964 Act, which prohibited discrimination by public accommodations, used a definition of public accommodation that did not reach health care

38

Oliver Wendell Holmes, Jr., The Common Law, 1881. Available online at http://www.law.harvard.edu/library/collections/special/online-collections/common_law/Contents.php (accessed January 4, 2007).

39

Many people confuse the concept of a “Good Samaritan” with the no-duty principle. A Good Samaritan is one who undertakes care and who then is held to a lesser duty of care in consideration of his or her good act. The undertaking itself is totally voluntary, however.

40

Rand Rosenblatt, Sylvia Law, and Sara Rosenbaum, Law and the American Health Care System (New York: Foundation Press, 1997; 2001-2002 Supplement), Ch. 1, The impact of U.S. law on medicine as a profession; Sara Rosenbaum, “The impact of United States law on medicine as a profession,” JAMA 289:1546–1556 (2003).

41

Rand Rosenblatt, Sylvia Law, and Sara Rosenbaum, Law and the American Health Care System (New York: Foundation Press, 1997), Ch. 1, The impact of U.S. law on medicine as a profession.

42

For a history of how Medicare-participating physicians gained a (nonstatutory) exception from Title VI, see David Barton Smith, Health Care Divided (Ann Arbor: University of Michigan Press, 1999). Current legal interpretation of physicians’ Part B exemption limits the exemption to physicians participating in “traditional” Medicare, that is, Medicare Part B direct fee-for-service payments only. See, e.g., U.S. Department of Health and Human Services, Office of Civil Rights, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons. Available at http://www.hhs.gov/ocr/lep/revisedlep.html (accessed November 23, 2006).



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