The Honorable George J. Mitchell United States Senate Washington, D.C.

20510-1902 MAY 10 1993 Dear Senator Mitchell: This letter is in response to your inquiry on behalf of your constituent, Dr. John W. Wickenden of Rockland, Maine, regarding the cost of providing auxiliary aids or services for persons with disabilities. The Americans with Disabilities Act (ADA) authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist your constituent in understanding the ADA's requirements. It does not, however, constitute a legal interpretation, and it is not binding on the Department. The ADA requires physicians to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. A physician may not impose a surcharge on any particular individual with a disability to cover the costs of measures, such as providing auxiliary aids, that are required by the ADA. These provisions appear in sections 36.301(c) and 36.303 of the enclosed ADA title III regulation, at pages 35596 and 35597, respectively. Also enclosed is the Department's Title III Technical Assistance Manual, which may provide further assistance to your constituent. Pertinent discussion may be found at pages 22 (surcharges) and 25-28 (auxiliary aids). What constitutes an effective auxiliary aid or service will depend on the unique facts of each situation, including the length and complexity of the communication involved. A doctor may satisfy the auxiliary aid or service requirement by using a note pad and written materials where a deaf patient is making a routine office visit. By contrast, a discussion of whether to undergo major surgery may require the provision of a sign language interpreter. Further discussion of this point may be found on page 35567 of the enclosed regulation. cc: Records, Chrono, Wodatch, McDowney, Magagna, Mobley, FOIA udd\Mobley\Congress\Mitchell

-2Under section 36.301(c) of the regulation, the cost of an interpreter must be absorbed by the doctor in the limited circumstances when an interpreter is necessary. However, as provided in section 36.303(f), a doctor is not required to provide any auxiliary aid that would result in an undue burden. The flexibility of the auxiliary aids requirement, the undue burden limitation, and the ability to spread costs over all patients should minimize any burden on the medical profession. Dr. Wickenden's letter raises a specific question involving the use of interpreters. On one occasion, the family of a deaf patient made its own arrangements for a sign language interpreter, without giving the doctor the opportunity to make his own contractual arrangements for a qualified interpreter. Dr. Wickenden reports that the Maine Department of Human Services told him that he had no alternative but to accept, and pay for, the interpreter for whom the family had arranged. Of course, if that is a requirement of state law, the constraints experienced by Dr. Wickenden would have emanated from state and not federal law and, thus, should be taken up with appropriate state officials. However, if the Maine Department of Human Services was purporting to describe the requirements of federal law, it did so incorrectly. The title III regulation does not contemplate that patients who are deaf may unilaterally decide on the appropriate type of auxiliary aid, make arrangements for a particular deaf services provider to furnish the aid, and then bill the public accommodation for the services. Instead, doctors may determine how best to provide effective communication to their patients, and may themselves arrange for the necessary auxiliary aids or services. Of course, the needs and wishes of the patients should be taken into account in determining what kind of auxiliary aid is necessary to provide effective communication. Please refer to the enclosed January 1993 Supplement to the Department's Title III Technical Assistance Manual at page 5 for further discussion. I hope this information will be helpful to you in responding to your constituent. We will also provide the Maine Department

of Human Services this information regarding the ADA. Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosures (2) ------------------------------MAY 10 1993 Maine Department of Human Services 360 Old Country Road Rockland, Maine 04102 Dear Sir or Madam: We received an inquiry from The Honorable George J. Mitchell on behalf of his constituent, Dr. John W. Wickenden of Rockland, Maine, regarding the cost of providing auxiliary aids or services for persons with disabilities. The Americans with Disabilities Act (ADA) authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA's requirements. It does not, however, constitute a legal interpretation, and it is not binding on the Department. Dr. Wickenden had informed Senator Mitchell that your office had advised him that where the family of a deaf patient made its own arrangements for a sign language interpreter, without giving the doctor the opportunity to make his own contractual arrangements for a qualified interpreter, he had no alternative but to accept, and pay for, the interpreter for whom the family had arranged. Of course, that advice may comport with state law. However, it is an incorrect interpretation of the ADA. The ADA requires physicians to furnish appropriate auxiliary aids and services where necessary to ensure effective

communication with individuals with disabilities. A physician may not impose a surcharge on any particular individual with a disability to cover the costs of measures, such as providing auxiliary aids, that are required by the ADA. These provisions appear in sections 36.301(c) and 36.303 of the enclosed ADA title III regulation, at pages 35596 and 35597, respectively. Also enclosed is the Department's Title III Technical Assistance Manual, which may provide you with further assistance. Pertinent discussion may be found at pages 22 (surcharges) and 25-28 (auxiliary aids). What constitutes an effective auxiliary aid or service will cc: Records, Chrono, Wodatch, McDowney, Magagna, Mobley, FOIA udd\Mobley\Congress\Mitchell ---------------------------------2depend on the unique facts of each situation, including the length and complexity of the communication involved. A doctor may satisfy the auxiliary aid or service requirement by using a note pad and written materials where a deaf patient is making a routine office visit. By contrast, a discussion of whether to undergo major surgery may require the provision of a sign language interpreter. Further discussion of this point may be found on page 35567 of the enclosed regulation. Under section 36.301(c) of the regulation, the cost of an interpreter must be absorbed by the doctor in the limited circumstances when an interpreter is necessary. However, as provided in section 36.303(f), a doctor is not required to provide any auxiliary aid that would result in an undue burden. The flexibility of the auxiliary aids requirement, the undue burden limitation, and the ability to spread costs over all patients should minimize any burden on the medical profession. The title III regulation does not contemplate that patients who are deaf may unilaterally decide on the appropriate type of auxiliary aid, make arrangements for a particular deaf services provider to furnish the aid, and then bill the public accommodation for the services. Instead, doctors may determine how best to provide effective communication to their patients, and may themselves arrange for the necessary auxiliary aids or

services. Of course, the needs and wishes of the patients should be taken into account in determining what kind of auxiliary aid is necessary to provide effective communication. Please refer to the enclosed January 1993 Supplement to the Department's Title III Technical Assistance Manual at page 5 for further discussion. I hope this information has helped you to achieve a fuller understanding of the law. Sincerely, John L. Wodatch Chief, Public Access Section Civil Rights Division Enclosures (2)