Hospitals, nursing homes, and other residential treatment facilities must keep patients and staff safe from the Coronavirus. The CDC has recommended limiting visitors to healthcare facilities like hospitals, nursing homes, and assisted living residences. Safety is important. But safety is more than stopping germs.
No-visitor policies can go too far. It is harmful—and illegal—to isolate people with disabilities from those who help them communicate or provide other disability-related support. The CDC acknowledges the need for “essential visitors,” but what does that mean?
Legal Challenge to Hospital No-Visitor Policy
In May 2020, disability advocates filed a civil rights complaint with the federal government, challenging an excessively restrictive Connecticut hospital “no visitor” policy. The policy allowed visitors only for end-of-life, pediatric or labor/delivery patients, and outpatients. Eventually, people with intellectual or developmental disabilities in a specific governmental service program could apply for special dispensation for support staff.
The Connecticut policy left out patients like “G.S.” a 73-year-old woman with a brain injury that caused aphasia (difficulty with words).[1] Her family learned to communicate with her over the years, but rotating hospital staff could not understand the signs of pain or communicate with her. She was understandably terrified and agitated. The hospital responded by sedating and putting her in restraints.
The ADA Requires Essential Visitors
Advocates for G.S. argued that the ADA and similar laws require medical providers to make reasonable modifications to policies to avoid discrimination against people with disabilities.[2] Thus, essential visitors include people needed for patients or residents to communicate effectively with their doctors or for other disability-related support. Examples could include:
- Family who understand a person’s non-verbal communication
- Sign-language interpreters (video interpreting doesn’t work for many deaf people)
- Visitors needed for emotional support, to avoid physical or chemical restraint (drugs)
There is a similar law for housing,[3] where legally required no-visitor exceptions could also include:
- Home health aids
- Paid housekeeping staff required because of a disability
- Friends taking care of essential needs
- Emotional support animals
Successful Outcome – Policy Change
By early June, the legal points had carried the day in the Connecticut case. The federal government negotiated a new state policy requiring hospitals to allow a designated support person for a patient with a disability–a family member, service-provider, or someone else knowledgeable about person’s needs.
The best way to craft a nondiscriminatory policy is to include people with disabilities at the outset. Many hospitals and other places are already doing the right thing. We can come together to provide a safe environment for everyone, even in these times.
[1] “Aphasia is an impairment of language, affecting the production or comprehension of speech and the ability to read or write. Aphasia is always due to injury to the brain-most commonly from a stroke, particularly in older individuals.” National Aphasia Association, Aphasia Definitions, at https://www.aphasia.org/aphasia-definitions/ (visited Jun. 10, 2020).
[2] At the federal level, these laws include Title II of the ADA, 42 U.S.C. §§ 12131-34 and its implementing regulations, 28 C.F.R. § 35.130.(b)(1)-(3), 35.130(b)(7)-(8); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and the Affordable Care Act, 42 U.S.C. §§ 118116; 45 C.F.R. §§ 92.101(a), 92.101(b)(2)(i), 92.205.
[3] The Fair Housing Act prohibits “refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford [a] person [with disabilities] equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).
ADA Update 