# 139 III-4.

3200 JUNE 30, 1994

The Honorable Jesse Helms United States Senate 403 Dirksen Senate Office Building Washington, D.C. 20510-3301 Dear Senator Helms: This letter is in response to your inquiry on behalf of your constituent, Katherine P. Hux, MPH, Executive Director of the North Carolina Psychiatric Association. Ms. Hux requested clarification of the term "reasonable accommodation" as it is applied in title III of the Americans with Disabilities Act (ADA). She further sought to clarify whether patients or physicians make the determination of what constitutes a "reasonable accommodation." Based upon the content and context of Ms. Hux' query, it would appear that her concerns relate most directly to the auxiliary aids and services provisions of title III. Such aids and services are measures that are undertaken to ensure effective communication for individuals with impaired speech, hearing, and/or vision, as well as those who are profoundly deaf. The auxiliary aids requirement is intended to be flexible, reflecting the variable nature of what constitutes "effectiveness." In addition to the specific nature of the disability involved, factors used to determine communication effectiveness in any given circumstance are most generally related to the length, complexity, and significance of the information being exchanged. Appointments for psychotherapy sessions, due to the sensitive nature of the information being exchanged, their length, complexity, and potential long-term impact on the

patient's well-being would appear to require the highest level of communication effectiveness possible. Further discussion of this point may be found on page 35567 of the enclosed title III regulation. The psychiatrist should weigh other factors that would minimize the degree of burden on the practice, such as the ability to spread costs throughout the general client population and the provision of tax credits for small businesses for costs incurred to provide auxiliary aids. Eligibility criteria for this credit is found in publication 907, available from the Internal Revenue Service. This document will be a useful resource for the Psychiatric Association's membership. Under section 36.301(c) of the regulation, when an interpreter or other auxiliary aid or service is required to ensure effective communication, the physician or therapist must absorb the cost for this aid or service. The auxiliary aid requirement does not require a physician or therapist to take any action that would result in an undue burden. The term "undue burden" means "significant difficulty or expense." In determining whether the provision of an interpreter or other aids or services would result in an undue burden, the therapist should consider the overall financial resources of the practice, not just the fees paid for a particular procedure or treatment session. Ms. Hux also addressed the issue of a patient who demanded that the physician pay for the interpreter of his or her choice. The auxiliary aids provisions of the ADA do not compel the physician to comply with the unilateral determination of the patient that a particular interpreter, or any auxiliary aid is essential to effective communication. Ideally, the psychiatrist and patient would arrive at a mutually acceptable choice through the consultation process. This specific point is illustrated in the Department's Title III Technical Assistance Manual, Supplement - January 1993 at page 5. Additional relevant information may be found in the preamble discussion of section 36.303 on pages 35567-35568 of the title III regulation. These documents are enclosed. I trust that this information will be helpful in your response to your constituent. Sincerely,

Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosures