federal programs that are aimed at the achievement of the broad goals of civil rights legislation.66

More Subtle Forms of Discrimination

The fact that physical and hearing access should dominate the U.S. Department of Justice complaint process is not surprising and should not be taken as a sign that perhaps more subtle forms of discrimination aimed at avoiding certain patients does not exist. Overt physical and communication barriers are the most visible forms of discrimination, as are architectural barriers and the failure to promote the accessibility of services through the use of specialized equipment. However, health care entities can engage in other, more subtle forms of discrimination, such as the refusal to serve “disruptive” patients or members of Medicaid managed care plans.67 Neither the U.S. Department of Justice nor the Office for Civil Rights at the U.S. Department of Health and Human Services maintains written interpretive guidelines related to services to qualified persons with mental disabilities by public facilities or places of public accommodation.

The Interaction Between ADA Violations and Medical Malpractice

In the United States, the failure of health care professionals and institutions to adhere to reasonable standards of health care practice constitutes the basis of liability for medical negligence. Because the ADA reaches conduct that denies equality of opportunity, presumably, medical injuries resulting from a health care provider’s failure to make reasonable modifications in accordance with applicable federal requirements could serve as evidence regarding the unreasonableness of the provider’s conduct in relation to the professional standard of care, the legal concept against which liability is measured. Thus, for example, the failure of a provider to adapt a health care setting to the needs of patients with physical or hearing disabilities could constitute evidence not only of an ADA violation but also of a violation of state medical liability law.

Although the potential for this type of legal parallelism is mostly speculative, one recent case illustrates how the failure to make reasonable modifications in health care services can lead to medical injury actionable

66

Sara Rosenbaum and Joel Teitelbaum, “Civil rights enforcement in the modern health care system: reinvigorating the role of the federal government in the aftermath of Alexander v Sandoval,” Yale J. Health Policy Law Ethics 3:215–252 (2003).

67

Sara Rosenbaum, Peter Shin, Marcie Zakheim, et al., Negotiating the New Health System: A Nationwide Study of Medicaid Managed Behavioral Health Care Contracts, Vols. 1-2 (Washington, DC: Center for Health Policy Research, The George Washington University Medical Center, 1997).



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