OCT 18 1993 The Honorable E. Clay Shaw, Jr. U.S. House of Representatives 2267 Rayburn House Office Building Washington, D.C.

20515 Dear Congressman Shaw: 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 nature of medical services is considered one factor in determining what auxiliary aid is necessary for effective

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01-02661 -2communication, the focus should be not only an 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 regulation's 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 to impose surcharges for auxiliary aids or services necessary for effective communication, regardless of whether those aids or 01-02662 -3services are used or not. While we appreciate Dr. Rosenberg's desire to avoid unnecessary expense, events may arise in an individuals 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