THE OBLIGATIONS OF NURSING HOMES TO DEAF AND HARD OF HEARING PATIENTS

You contacted us recently for information concerning the responsibilities of nursing homes to be accessible to deaf individuals. We are in the process of preparing a detailed "question and answer" brochure directed to the health care industry. You may want to contact us later this winter for a copy of this brochure. In the interim, we are happy to provide the following information.

Nursing homes must be accessible to individuals with disabilities, pursuant to two federal laws. Section 504 of the Rehabilitation Act, 29 U.S.C. Section 794, applies to all nursing homes which receive any federal financial assistance, such as Medicare or Medicaid, and requires the provision of auxiliary aids to ensure nondiscrimination on the basis of disability. 45 C.F.R. Part 85. Obligations under Section 504 have been in place since 1973. The mandates of Section 504 have recently been extended to all nursing homes through the new Americans with Disabilities Act. I will discuss these obligations in detail below.

Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., applies to all places of public accommodation. The U.S. Department of Justice has written regulations to implement Title III, 28 C.F.R. Part 36, and has developed an Analysis thereto, 56 Fed. Reg. 35544 (July 26, 1991). The U.S. Department of Justice Regulation and Analysis define "places of public accommodation" to include residential facilities providing social or medical services, such as nursing homes. 28 C.F.R. Section 36.104; 56 Fed. Reg. 35552.

Places of public accommodation have a duty to provide auxiliary aids and services to individuals with hearing impairments where necessary to ensure effective communication with individuals with disabilities. 28 C.F.R. Section 36.303(c).

"Auxiliary aids and services" are defined to include:

Qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDDs), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments. 28 C.F.R. Section 36.303(b)(1).

For nursing homes, one obvious accommodation for deaf individuals is access to telephone and television service. The regulation specifies the following services:

(d) Telecommunication devices for the deaf (TDDs). (1) A public accommodation that offers a . . . patient . . . the opportunity to make outgoing telephone calls on more than an incidental convenience basis shall make available, upon request, a TDD for the use of an individual who has impaired hearing or a communication disorder.

(e) Closed caption decoders. Places of lodging that provide televisions in five or more guest rooms and hospitals that provide television for patient use shall provide, upon request, a means for decoding captions for use by an individual with impaired hearing.

28 C.F.R. Section 36.303.

The Justice Department analysis specifies the telephone and television access which is required of establishments such as nursing homes:

. . . hotels, hospitals and other similar establishments that offer nondisabled individuals the opportunity to make outgoing telephone calls on more than an incidental convenience basis must provide a TDD on request. Section 36.303(e) requires places of lodging that provide televisions in five or more guest rooms and hospitals to provide, upon request, a means for decoding closed captions for use by an individual with impaired hearing. Hotels should also provide a TDD or similar device at the front desk in order to take calls from guests who use TDDs in their rooms. In this way guests with hearing impairments can avail themselves of such hotel services as making inquiries of the front desk and ordering room service.

56 Fed. Reg. 35567 (July 26, 1991).

Assistive listening systems and devices are included among the listed auxiliary aids and services, and should be provided by the nursing home in areas of general assembly. Interpreters, telephone handset amplifiers, and other auxiliary aids will also be required, where needed. One example of auxiliary aids not specified by the regulation, but undoubtedly required, would be visual notification devices for doorbells and telephones in patient rooms.

In addition to the requirement to provide auxiliary aids, nursing homes must also remove architectural barriers, including communications barriers that are "structural in nature." Even existing structures must remove such barriers, where removal is "readily achievable". 28 C.F.R. Section 36.304. The Justice Department regulation gives the example of installing flashing alarm lights, so that deaf individuals will be alerted to fires and other emergencies, as a readily achievable barrier removal required by the regulation. 28 C.F.R. Section 36.304(b)(7). In most cases, portable alarm units can be installed in a room without unduly expensive wiring and other structural changes. Additionally, installation of assistive listening systems which are structural in nature will generally be readily achievable and required by the regulation.

New and newly renovated nursing homes must be built or renovated to comply with very explicit requirements set forth in a document titled "Americans with Disabilities Act Architectural Guidelines" (ADAAG). 28 C.F.R. Part 36, Appendix. New and newly renovated nursing homes must comply with the following regulation:

(3) Long term care facilities, nursing homes - At least 50 percent of patient bedrooms and toilets, and all public use and common use areas are required to be designed and constructed to be accessible.

ADAAG, at 6.1(3).

For deaf and hard of hearing residents, the structural modifications necessary for accessibility will include visual alarm systems. ADAAG, at 4.1.3(14); 4.28.3.

There are other "structural" requirements addressed by ADAAG, including the obligation to install pay TDDs and other accessible telephones where public telephones are available. ADAAG, at 4.1.3(17); 4.31.5 - 4.31.9. ADAAG also addresses the obligation to make meeting rooms, assembly areas and conference rooms accessible by means of assistive listening systems. ADAAG, at 4.1.3(19)(b); 4.33.6 - 4.33.7.

You can get a copy of ADAAG (and the full Title III regulations) by contacting:

Office on the Americans with Disabilities Act Civil Rights Division US Department of Justice PO Box 66118 Washington DC 20S30 (202) 514-0301 (202) 514-0383 (TDD)

We hope that this information will be helpful to you. Please let us know if you have further questions.

Funded by a Grant from the U.S. Department of Justice