SEP 2(illegible) 1994

The Honorable Bob Graham United States Senator Post Office Box 3050 Tallahassee, Florida 32315 Dear Senator Graham: This is in response to your inquiry on behalf of your constituent, Ms. Silvia Garcia, Program Coordinator of the Deaf Service Center of Palm Beach County, Inc. Ms. Garcia is concerned that health care providers are not meeting their obligation under title III of the Americans with Disabilities Act (ADA) to provide auxiliary aids or services to persons with hearing impairments. The Department of Justice is committed to ensure the effective implementation of the auxiliary aids requirements of title III by health care providers. We are concerned, however, that there are some significant misperceptions of the scope of these requirements that may be deterring compliance. One of the most common misconceptions about the ADA is that health care providers are required to provide interpreters whenever they are requested. In fact, title III of the ADA requires public accommodations, including health care providers, to furnish appropriate auxiliary aids and services, including sign language interpreters, where necessary to ensure effective communication with individuals with disabilities. Health care providers should consult with their patients to determine what type of auxiliary aid or service is appropriate for particular circumstances. However, health care providers are not required to provide sign language interpreters for deaf patients upon demand. Title III of the ADA does not require a provider to accede to a patient's specific choice of auxiliary aid or service as long as the provider satisfies his or her obligation to ensure effective communication.

cc: Records, Chrono, Wodatch, Blizard, McDowney, FOIA, Friedlander

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-2In determining what constitutes an effective auxiliary aid or service, health care providers must consider, among other things, the length and complexity of the communication involved. For instance, a note pad and written materials may be sufficient means of communication in some routine appointments or when discussing uncomplicated symptoms resulting from minor injuries. Where, however, the information to be conveyed is lengthy or complex, the use of handwritten notes may be inadequate 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. Health care professionals cannot use an unsubstantiated fear of economic loss as a basis on which to refuse to provide auxiliary aids or to refuse treatment for a person with a disability. A health care provider may not impose a surcharge on any particular individual with a disability to cover the costs of providing auxiliary aids and services. Instead, the costs should be treated like other overhead expenses that are passed on to all patients. However, the obligation to provide auxiliary aids and services is not unlimited and a health care provider is not required to provide auxiliary aids and services if doing so would result in an undue burden, that is, a significant difficulty or expense. The factors to be considered in determining whether there is an undue burden include the nature and cost of the action, the type of entity involved, and the overall financial resources of the entity. Finally, as amended in 1990, the Internal Revenue Code permits small businesses to receive a tax credit for certain costs of compliance with the ADA. An eligible small business is one whose gross receipts do not exceed $1,000,000 or whose work force does not consist of more than 30 full-time workers. Qualifying businesses may claim a credit of up to 50 percent of eligible access expenditures that exceed $250 but do not exceed $10,250. Eligible access expenditures may include the costs of providing auxiliary aids and services to persons with disabilities.

The flexibility of the auxiliary aids requirement, the undue burden limitation, the ability to spread costs over all patients, and the small business tax credit should minimize any burden on health care professionals. 01-03433

-3I hope this information will be helpful to you in responding to your constituent. Sincerely,

Deval L. Patrick Assistant Attorney General Civil Rights Division 01-03434

BOB GRAHAM FLORIDA United States Senate WASHINGTON, DC 20510-0903

July 27, 1994

United States Department of Justice Division of Civil Rights Office On the Americans with Disabilities Act Post Office Box 66738 Washington, D.C. 20035-9998 Dear Director: Enclosed is a letter from Ms. Silvia R. Garcia. I would appreciate your reviewing her inquiry and providing me with your comments. Please address your reply to my state office: Post Office Box 3050, Tallahassee, Florida 32315, Attention: Xalina LaBarge. Your cooperation and assistance are greatly appreciated. I look forward to hearing from you soon. With kind regards, Sincerely,

United States Senator BG/xal Enclosure 01-03435

June 16, 1994 Senator Bob Graham 44 W. Flagler St. Suite 1715 Miami, FL 33130 Dear Senator Graham: On behalf of our deaf population, I am writing to you with a concern about enforcement of the Americans with Disabilities Act of 1990 (ADA) as it applies to the use of sign language interpreters as an accommodation at a private physician's office. As a private, non-profit agency advocating for the rights of hearing impaired individuals, the Deaf Service Center of Palm Beach County, Inc. has been contacted by many deaf individuals with the above concern. We have also been contacted by medical doctors seeking information about their compliance obligations for deaf individuals under the ADA. Fifty per cent of the calls we receive daily in reference to ADA and communications needs for deaf individuals are related to medical situations. Our efforts to educate the general population about the ADA include the provision of telephone numbers and addresses where they can seek more specific information. One of those referral sources is the U.S. Civil Rights Office in Washington. We continuously provide information to medical doctors in the county in reference to their obligation to deaf patients under the ADA. Nevertheless,

the requests for interpreters from deaf patients have received strong resistance from the medical doctors, resulting in cancellation of appointments, cancellations of scheduled surgeries, and even some physicians dismissing their deaf patients of many years. The ADA states that covered entities shall give primary consideration to the request of the individual with the disability. The fact is that many physicians are deciding themselves that their deaf patients do not need interpreting services, disregarding the deaf patient's request. The real issue for the physicians seems to be avoiding the cost of providing this accommodation, rather than assuring accurate communication. Many physicians claim that they cannot afford the cost of an interpreter because sometimes this cost is higher than the fee or reimbursement they will receive for the deaf patient on the one individual appointment. The ADA states that the overall revenue of the business and several other factors must be taken into consideration when determining undue burden. In addition, the tax credits and deductions available for improving accessibility should be considered. A United Way Agency 01-03436

SEP 20 1994

Ms. Silvia R. Garcia Program Coordinator Deaf Service Center of Palm Beach County, Inc. 5730 Corporate Way #230 West Palm Beach, Florida 33407 Dear Ms. Garcia: This letter is in response to the concerns raised in your recent letter about the requirements of the Americans with Disabilities Act (ADA) as they relate to the provision of qualified interpreters. Both title II and title III of the ADA have specific language relating to the provision of auxiliary aids. Under section 36.303(c) of the title III regulation, public accommodations are required to provide appropriate auxiliary aids and services to ensure effective communications with individuals with disabilities. The language of the title II regulation is similar and has the additional requirement of giving primary

consideration to the requests of individuals with disabilities as to the particular kind of auxiliary aid or service to be provided. The auxiliary aids requirements are intended to be flexible, reflecting the variable nature of what constitutes "effective communication." In addition to the specific nature of the disability involved, factors used to determine communication effectiveness in any given circumstance include the length, complexity and significance of the information exchanged. The definition of "qualified interpreter" contained in both the title II and title III regulations requires the ability to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. The ADA does not require the use of a certified interpreter as long as the interpreter is "qualified." As your letter correctly points out, certification ensures that consumers and covered entities are utilizing the services of FOIA 01-03437

-2a highly trained and skilled professional. However, interpreter services are increasingly required in settings demanding a highly specialized vocabulary. For example, course work in a computeraided design curriculum requires facility in technological, construction and design vocabularies. Certification alone would not necessarily ensure that the standard for interpreter effectiveness would be met. There are other situations where a certified interpreter might not be qualified. For example, a family member or friend who is a certified interpreter might be available and willing to interpret, but would not be able to satisfy the impartiality requirements that are so critical in medical and legal settings. Additional discussion of this issue may be found in the enclosed Department of Justice Technical Assistance Manuals for title II (II-7.1200) and title III (III4.3200).

I thank you for your letter and trust that this information will be useful to you and to Deaf Service Center consumers. Sincerely,

Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosures 01-03438