OCT 16 1993 The Honorable Tom Lewis Member, U.S.

House of Representatives 440 PGA Boulevard Suite 406 Palm Beach Gardens, Florida 33410 Dear Congressman Lewis: This letter is in response to your inquiry on behalf of your constituent, Dr. Steven Rosenberg, regarding a physician's obligation to provide 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 public accommodations, including physicians, to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. In determining what constitutes an effective auxiliary aid or service, a physician must consider, among other things, the length and complexity of the communication involved. For instance, a notepad and written materials may be sufficient to permit effective communication when a physician is explaining possible symptoms resulting from a simple laceration. Where, however, the information to be conveyed is lengthy or complex, the use of handwritten notes may be extremely slow or cumbersome and the use of an interpreter may be the only effective form of communication. Use of interpreter services is not necessarily limited to the most extreme situations---for example, a discussion of whether to undergo surgery or to decide on treatment options for cancer. Further discussion of this point may be found on page 35567 of the preamble to the enclosed regulation. While the cc: Records, Chrono, Wodatch, McDowney, Breen, Nakata FOIA, MAF


01-02641​ -2nature of medical services is considered one factor in determining what auxiliary aid is necessary for effective communication, the focus should be not only on the nature of the services, but also on the type of communication between the physician and the patient. Generally, interpreters are not needed for routine office visits. However, the fact that an office visit is characterized as routine does not necessarily negate the need for interpreting services. For instance, an interpreter may be required if a note pad does not facilitate effective communication between the physician and an individual who is undergoing a complete physical examination and related testing procedures. Under section 36.301(c) of the regulation, when an interpreter or other auxiliary aid or service is necessary to ensure effective communication, the physician must absorb the cost for this aid or service. As provided in section 36.303(f), however, the physician is not required to provide any auxiliary aid that would result in an undue burden. The term "undue burden" means "significant difficulty or expense." Undue burden must be determined on a case-by-case basis in light of factors such as the nature and cost of the aid or service, and the overall financial resources of the practice. Further discussion of the meaning and application of the term undue burden may be found in the preamble discussion of section 36.303, on pages 35567-35568. In determining whether the provision of an interpreter would result in an undue burden, the physician should consider not only the fees paid for providing the medical service or procedure, but also the overall financial resources of the practice. The physician should consider other factors that would minimize the degree of burden on the practice, such as the ability to spread costs throughout the general clientele and the provision of tax credits for costs of providing auxiliary aids (which is available for eligible small businesses). The Department's Technical Assistance Manual for title III (copy enclosed) at page 26, and the ADA's legislative history, as

described in the regulations preamble, at pages 35566-35567, strongly encourage consultation with persons with disabilities in order to determine which particular auxiliary aid or service will ensure effective communication. Not only will consultation ensure that equal services are provided to individuals with disabilities, it may also significantly reduce the costs of providing such auxiliary aids or services. Dr. Rosenberg's letter also raises the issue of whether a public accommodation may charge patients requesting an interpreter a cancellation fee when the patient cancels an appointment after the physician becomes financially liable for the interpreter service. A public accommodation is not permitted 01-02642​ -3to impose surcharges for auxiliary aids or services necessary for effective communication, regardless of whether those aids or services are used or not. While we appreciate Dr. Rosenberg's desire to avoid unnecessary expense, events may arise in an individual's life that are beyond his or her control, such as illness or business emergencies. Imposing the costs of interpreter services in the event of cancellation under such circumstances places the person in need of an auxiliary aid or service at a distinct disadvantage relative to others in similar situations. Of course, the ADA would not prohibit Dr. Rosenberg from charging a standard cancellation fee for missed appointments provided that the policy of charging cancellation fees is applied uniformly to all patients. Dr. Rosenberg's letter raises a specific question involving use of interpreters concerning a deaf patient who made an appointment and then demanded that Dr. Rosenberg's office provide an interpreter. Clearly, the auxiliary aid provisions of the ADA (cited above) do not contemplate that a person with a disability can unilaterally decide on the appropriate type of auxiliary aid. Further discussion on this point can be found in the enclosed January 1993 update to the Department's Title III Technical Assistance Manual (copy enclosed) at page 5. 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

01-02643 ​ steven p. rosenberg, m.d., p.a. elaine zoberman-saltiel, m.d. DIPLOMATES OF THE AMERICAN BOARD OF DERMATOLOGY FELLOWS OF THE AMERICAN ACADEMY OF DERMATOLOGY August 2, 1993 Congressman Clay Shaw 1512 East Broward Boulevard Ft. Lauderdale, FL 333Ol Dear Congressman Shaw: I would appreciate your helping to clarify a matter that developed today in reference to our compliance with the Americans with Disabilities Act. I have supported the principles and concepts of the ADA, but as a result of some confusion today I realize that this is a complicated issue. Specifically, a patient was provided an appointment who is hearing impaired and she demanded that we provide an interpreter. The legal advice that I was able to receive from the Florida Medical Association indicates that we are required to "ensure effective communication." I have been practicing for approximately fifteen years and have taken care of numerous patients with various disabilities. In the past we have never had difficulty by communicating with written notes in those individuals who are hearing impaired. The nature of the dermatology practice is such that the majority of issues are relatively straightforward and can be handled efficiently in this fashion. As there appears to be some confusion between the patient's demands and the legal advice that I had received which indicates that such notes should be acceptable unless the physician feels otherwise, I would appreciate clarification.

I would also like to point out that the cost for obtaining an interpreter have minimum charges of between $60.00-$75.00. An initial office visit is $50.00 and, as you are aware, many third party payers including Medicare reimburse office visits in the $22.00 - $40.00 range. This would result in a net loss per patient visit in a situation where our overhead costs are already astronomical. I am curious whether this places an "undue burden" according to the definitions of the act. In addition, I would like to know whether we can bill the patient for the cancellation fee that the interpreter charges should the patient fail to keep their appointment. The interpreter services indicated that if the services are not cancelled with twenty four hour notices that there is a charge and that we would be responsible for the full amount even if the patient does not show. I understand my financial responsibility to provide this service for the hearing impaired but I am also concerned that there may be opportunities where patients cancel at the last minute or do not show and therefore these costs would not be associated with my actually providing an office visit. 470 COLUMBIA DRIVE, SUITE 102A WEST PALM BEACH, FLORIDA 334091968 TELEPHONE (407) 640-4400 01-02644​Page 2 Finally, I would like to know whether third party payers including Medicare will reimburse for interpreter services and if so, more specifically how should we go about obtaining such payment from Medicare. Your prompt help and cooperation would be appreciated. Please do not hesitate to contact me by phone should that be necessary. You may also fax information to me at 407/640-8098. Sincerely,

Steven P. Rosenberg, M.D. SPR/dm

faxed to 305 768 0511