DOJ Sues Ophthalmology Practice for ADA Discriminating Against Individuals Using Wheelchairs
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On December 20, 2021, the United States Justice Department (DOJ) filed a lawsuit against Barnet Dulaney Perkins Eye Center, PC (BDP), an optometry and ophthalmology provider with 24 facilities, for violating the Americans with Disabilities Act (ADA) by refusing to transfer certain patients using wheelchairs onto surgical and exam tables and instead requiring these patients to hire third-party medical support personnel to transport them to and from BDP facilities and to provide transfer assistance at the facilities.
The practice of forcing disabled patients to hire third-party assistance at the patient’s expense amounts to a surcharge, which is a violation of 28 C.F.R. § 36.301(c), Eligibility Criteria, Surcharges, which states, “Charges. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids, barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices, or procedures, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.”
In other words, Title III of the ADA prohibits medical providers from imposing additional fees or surcharges to cover the costs of measures that are necessary to provide individuals with disabilities with the nondiscriminatory treatment required by the ADA.
The DOJ conducted testing to evaluate the Defendant’s compliance with the ADA in October 2019. “Testing” refers to the use of individuals who, without any intent to partake in a given service, inquire for the purpose of gathering information. This information may indicate whether a private entity is complying with the ADA.
PRAYER FOR RELIEF
The lawsuit demands included the following:
Defendant must modify its policies, practices, and procedures to comply with the requirements of Title III of the ADA, 42 U.S.C. §§ 12181-89, and its implementing regulation, 28 C.F.R. Part 36;
Defendant must take such affirmative steps as may be necessary to restore, as nearly as practicable, Complainant and other aggrieved persons to the position that they would have been in but for Defendant’s conduct;
Court awarded monetary damages, including compensatory damages for emotional distress and other injuries, to aggrieved persons, for injuries suffered as the result of Defendant’s violation of Title III of the ADA, and its implementing regulation, 28 C.F.R. Part 36;
Court assessed civil penalty against the Defendant in the maximum amount authorized by 42 U.S.C. § 12188(b)(2)(C), to vindicate the public interest.