AUG 9 1993

The Honorable Thomas Andrews Member, U. S. House of Representatives 136 Commercial Street Portland, Maine 04101 Dear Congressman Andrews: 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 upon the unique facts of each situation, including the length and complexity of the communication involved. For example, in some instances 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.

cc: Records, Chrono, Wodatch, Magagna, Yang, McDowney, MAF, FOIA udd\yang\congress\andrews

01-02489

-2By contrast, a discussion of whether to undergo major surgery will generally require the provision of an interpreter. Other situations may also require the use of interpreters to ensure effective communication, depending on the facts of the particular case. 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. 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.

01-02490

I hope this information will be helpful to you in responding to your constituent. Sincerely,

James P. Turner Acting Assistant Attorney General Civil Rights Division

Enclosures 01-02491 THOMAS H. ANDREWS MEMBER OF CONGRESS

FIRST DISTRICT MAINE WASHINGTON OFFICE 1530 Longworth Building Washington, DC 20515-1901 (202) 225-6116 CONGRESS OF THE UNITED STATES HOUSE OF REPRESENTATIVES DISTRICT OFFICE 136 COMMERCIAL STREET PORTLAND, ME 04101 (207)772-8240 TDD (207)772-8240 1-800-445-4092 April 12,1993 Toni Davenport Director Congressional Affairs Division Health Care Financing Administration 1555 Parklawn Building 5600 Fishers Lane Rockville, MD 20857 Dear Ms. Davenport: Enclosed is a copy of a letter I recently received from Dr. John Wickenden concerning the implementation of provisions of the Americans With Disabilities Act with respect to reimbursement for interpreters. According to Dr. Wickenden, the Maine Department of Human Services has interpreted the ADA to require that physicians accept and pay for interpreters contracted for by the patient Dr. Wickenden is concerned that this will indirectly reduce access to health services for disabled individuals because of the high, direct costs to physicians. In his particular case, he estimates that the cost of an interpreter for one patient could exceed $1,000, for which Dr. Wickenden will not be reimbursed. I would appreciate your review of this situation. As you may know, Congressman Andrews was a strong supporter of the ADA, and this office is committed to seeing it work. We would be concerned if provisions of the law had the unintended effect of actually reducing access to health services. Please direct your response to me at the Portland address listed above, and don't hesitate to let me know if you require additional information.

Sincerely,

Laurie Lemley Special Assistant to Representative Thomas H. Andrews Enclosure 01-02492 PENOBSCOT BAY ORTHOPAEDIC ASSOCIATES PENOBSCOT BAY PHYSICIANS' BUILDING GLEN COVE, ROCKLAND, MAINE 04841 JOHN W. WICKENDEN, M.D. Telephone 596-6653 Diplomate American Board Orthopaedic Surgery 1-800-640-0707 Fellow American Academy of Orthopaedic Surgeons 1 February 1993 Congressman Thomas H. Andrews U.S. House of Representatives Washington, DC 20510-1901 Dear Congressman Andrews: Your commitment to the disabled is well known to me. I support it. I believe that my commitment is similar to yours. I am a "liberal Democrat." I have worked for you and I have lobbied for the Americans with Disabilities Act. In the context of that background, please weigh my comments. An experience last week has convinced me that the regulations with which the ADA is implemented need fine tuning. A deaf man made an appointment in my orthopedic surgery office. His family notified me that they had retained a deaf services interpreter from Portland. They did not give me the opportunity to

provide a qualified interpreter. The Maine Department of Human Services told me that I had no alternative but to accept, and pay for, the interpreter for whom they had arranged. Thereby, the man had an orthopedic consultation (#99202) for which my fee is $57.00. Medicare will approve a payment of $34.75. The interpreter will bill me at $28.00 an hour. With travel to and from Portland, my cost for the interpreter will be $140.00 (for which I can seek no other remuneration). Therefore, I will be paid $34.75. In return for that payment I will have a direct cost of $140.00 and an indirect cost of another $22.25. If this man comes to surgery (as may well happen) it could cost me well over $1,000. for interpreter services. Moreover, Medicare will not, even reimburse me an amount which would pay the overhead costs for a patient who did not pose this additional burden. Even without the ADA, I don't collect any take-home money for caring for Medicare and Medicaid patients. I can't live with the many mandates of the government. I can't shift enough charges to my "paying patients."

01-02493