What the ACA Got Right on Effective Communication

Ever since it’s passage in 2010, the Affordable Care Act (ACA) has been much maligned, and since the recent attempts to appeal it, much more beloved. It’s hard to imagine such a whiplash effect of emotional change with regards to a piece of federal legislation, yet here we are.

There is an extremely important section of the ACA that now codified into law, corrects a huge mistake in how the original Americans with Disabilities Act (ADA) and the resulting U.S. Department of Justice Office of Civil Rights consent decrees and settlements got wrong.

Before I discuss that section, let’s discuss what was wrong in the ADA. For that, I look to Dr. Michael A. Schwartz’s 2008 article “DEAF PATIENTS, DOCTORS, AND THE LAW: COMPELLING A CONVERSATION ABOUT COMMUNICATION,” published in the Florida State University Law Review in 2008. Dr. Schwartz is a Deaf attorney, Associate Professor of Law and Director of the Disability Rights Clinic at Syracuse University.

Indeed, Dr. Schwartz made a compelling case about effective communication. His 58 page article painstakingly explores how the Americans with Disabilities Act of 1990 (and subsequent revisions in 2010) did not require a healthcare provider to consult with their Deaf patient to determine the patient’s preferred method of communication, that would be most effective. Dr. Schwartz compares this glaring omission in Title III by comparing it to the required expectation under Title II of the ADA which requires state and local governments to do just that: ask Deaf patients their preferred method for effective communication, then follow it by giving it primary consideration.

Schwartz states: “Instead, what the Department’s analysis merely does is to “strongly encourage” a doctor to consult with a Deaf patient as to what he or she needs for effective communication; the Department also refuses to require the doctor to give “primary consideration” to the Deaf patient’s choice.”