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T. 4/8/92 DJ 202-16-0 Control/202-CON-0001 APR 20 1992 The Honorable Robert S. Walker U. S.

House of Representatives 2369 Rayburn House Office Building Washington, D.C. 20515-3816 Dear Congressman Walker: I am responding to your recent inquiry on behalf of your constituent, XXX, about his obligations under title III of the Americans with Disabilities Act of 1990 (ADA), Pub. L. 101-336, 104 Stat. 327 (July 26, 1990), and this Department's regulation implementing title III, 56 Fed. Reg. 35544 (July 26, 1991). Specifically, XXX is seeking clarification of whether a physician is required to provide a sign language interpreter for a patient who is deaf or hard of hearing if effective communication can be achieved through other means. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that are subject to the Act. This letter provides informal guidance about the obligation of a health care provider to provide auxiliary aids; however, this technical assistance does not constitute a determination by the Department of XXX rights or responsibilities under the ADA and it is not binding on the Department. The ADA requires that a public accommodation, such as the professional office of a health care provider, make available appropriate auxiliary aids when those aids are necessary to ensure effective communication. An individual who has a hearing impairment that substantially limits his or her ability to communicate is entitled to receive auxiliary aids from a health care provider, unless the health care provider can demonstrate that providing the auxiliary aid will fundamentally alter the nature of the service being provided or that it will result in undue burdens. cc: Records; Chrono; Wodatch; Bowen; Blizard; McDowney. :udd:bowen:cong.walker

01-00621 -2Auxiliary aids include a wide range of services and devices that promote effective communication. The type of auxiliary aid or service necessary to ensure effective communication will vary with the length and complexity of the communication involved. Brief exchanges of information would not ordinarily require the use of interpreter, but discussions of complex issues, such as alternative methods of treating a serious illness, may require an interpreter. To determine what type of auxiliary aid should be provided, a health care provider should consult with the patient whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, because it is important to ensure that the auxiliary aid that is used is, in fact, effective for that individual. However, the ultimate decision as to what measures to take to facilitate communication rests in the hands of the health care provider, as long as the method chosen results in effective communication. The Department of Justice recently published a technical assistance manual to assist individuals and entities affected by title III of the ADA to understand their rights and responsibilities under the Act. I am enclosing a copy of that manual for your use. The manual addresses both the obligation to provide auxiliary aids and the limitations on that obligation. It also identifies the factors to consider in determining if providing an auxiliary aid will constitute an undue burden.

I hope that this information is helpful to you in responding to XXX. Sincerely, John R. Dunne Assistant Attorney General Civil Rights Division Enclosure 01-00622

February 20, 1992 Honorable Robert Walker House of Representatives 2441 Rayburn House Office Bldg. Washington, DC 20515 Re: The American Disabilities Act Dear Congressman Walker: I am writing to express my concern about ambiguities in the wording of the

American Disabilities Act, particularly in regard to the provision of services to the deaf. We have received a communication from the Department of Justice referring to Section 36.303 - Auxiliary Aids and Services. This states, "Implicit in this duty to provide auxiliary aids and services is the underlying obligation of a public accommodation to communicate effectively with its customers, clients, patients or participants who have disabilities affecting hearing, vision, or speech." It goes on to mandate that "appropriate auxiliary aids and services be furnished to ensure that communication with persons with disabilities is as effective as commination with others." This is being interpreted by the Deaf Association to mean that we must provide an interpreter provided by the Deaf Association, and pay that interpreter for those services. The charge that they are asking in some cases exceeds our charge for the office visit. It is our interpretation of the law that we simply need to provide adequate communication with the patient, whether through written mechanisms or through lip reading. It is the Deaf Association's interpretation that we must provide an interpreter who can effectively sign as well as speak. Whenever the law is ambiguous, as this is, the interpretation is left to the courts. We have been informed by the Deaf Association that if we do not pay them for an interpreter that they insisted come along to a patient visit, that they will sue us and "shut us down." The publicity of a law suit on discrimination is potentially far more harmful to us than the cost of paying an interpreter. So though legally we have the right to refuse and accept a lawsuit which we may well win, the threat of adverse publicity puts a dampening effect on our ability to fight for our interpretation of the law. The additional costs of an interpreter obviously add to our overhead which ultimately must be passed on to other patients, further increasing the cost of medical care. There is also a clear risk that physicians will be less willing to take on a deaf patient if it means paying more for the deaf patient's care than is received from the visit. For these reasons, I request that you work to ammend the American Disabilities Act inserting language clarifying that this does not require an interpreter to

01-00623 Honorable Robert Walker Re: The American Disabilities Act February 20, 1992 Page Two be present, as long as communication can be carried out through lip reading or through written notes. I thank you for your attention to this matter. Sincerely, XXX XXX/jab 01-00624