DEC 29 1994 The Honorable Phil Gramm United States Senator 2323 Bryan Street, #1500 Dallas, Texas

75201 Dear Senator Gramm: This is in response to your inquiry on behalf of your constituent, Dick G. Ellis, M.D., about the obligation of a health care provider, under title III of the Americans with Disabilities Act (ADA), to provide auxiliary aids or services to persons with hearing impairments. Dr. Ellis asks if the ADA requires a physician to provide interpreters on demand for patients who have 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. 01-03561​ -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. 01-03562​ -3-

I hope this information will be helpful to you in responding to your constituent. Sincerely, Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosure 01-03563​ September 6, 1994 Senator Phil Gramm 370 Russell Senate Office Bldg. Washington, D.C. 20510 Dear Senator: XX I was very disturbed today to receive the enclosed three pieces of paper from a lady named Chris Sparks at the Goodrich Center for the Deaf, 2500 Lipscomb Street, Fort Worth, Texas 76110-2625. Her phone number is (817) 926-5305. She essentially informs me that I must pay her or someone from her group $60.00 every time that they accompany a patient to my office as a result of this Disabilities Act. In view of the fact that my office charge is never more than 67% of this, how am I expected to meet this cost, even if I were to collect 100% of all office visit fees. Does this mean that I could be sued for not being willing to see non-emergency deaf patients in my office? 01-03564​ It is my understanding that Federal funding for the Goodrich Center for the Deaf and others has been withdrawn and that the Disabilities Act is basically passing this on to the private sector. Is this correct? Is it possible that I could get a copy of the vote when this bill passed. I would be interested in knowing not only the ones in Texas but from elsewhere. XX XX . Therefore, I really would appreciate an answer from you.

Sincerely, Dick G. Ellis, M.D. DGE/jp 01-03565​ The Americans with Disabilities Act-Communication Accommodations Project A Resource for Voluntary Compliance with the ADA A JOINT PROGRAM OF The American Foundation for the Blind National Center for Law and Deafness Governmental Relations Department Gallaudet University 1615 M Street N.W., Suite 250 800 Florida Avenue, N.L. Washington, DC 20036 Washington, DC 20002 (202) 223-0101 (202) 651-5343 MEMORANDUM ON THE OBLIGATIONS OF DOCTORS AND OTHER HEALTH CARE PROVIDERS UNDER THE AMERICANS WITH DISABILITIES ACT Title III of the Americans with Disabilities Act (ADA) prohibits discrimination against deaf and hard of hearing people in places of public accommodation. Included within the definition of places of public accommodation is any "professional office of a health care provider," regardless of the size of the office or the number of employees. 28 C.F.R. § 36.104. The ADA therefore applies to doctors, dentists, psychiatrists and psychologists, hospitals, nursing homes and health clinics, and all other providers of mental and physical health care. Places of public accommodation must be accessible to individuals with disabilities. For deaf and hard of hearing people, this means that they must remove barriers to communication. Doctors and health care providers must make sure that they can communicate effectively with their deaf patients and clients by providing "auxiliary aids and services" for these individuals: (c) Effective communication. A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. 28 C.F.R. 36.303. "Auxiliary aids and services" expressly include qualified

interpreters, transcription services, and written materials, as well as the provision of telecommunications devices for the deaf (known as TDDs or text telephones), telephone handset amplifiers, television decoders and telephones compatible with hearing aids. 28 C.F.R. 36.303 (b) (1). For individuals who use sign language, interpreters are often needed to provide safe and effective medical treatment. Unless a doctor can communicate effectively and accurately with a patient, there is a grave risk of not understanding the patient's Funded by a Grant from the U.S. Department of Justice 01-03566​ 2 symptoms, misdiagnosing the patient's problem, and prescribing inadequate or even harmful treatment. Similarly, patients may not understand medical instructions and warnings or prescription guidelines without the provision of an interpreter. The doctor may not charge the patient for the cost of interpreter service, either directly or by billing the patient's insurance carrier: A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids, barrier removal . . . and reasonable modifications . . . that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part. 28 C.F.R. 36.301(c). The Justice Department regulation defines a "qualified interpreter" as follows: Qualified interpreter means an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary. 28 C.F.R. 36.104. The Justice Department warns that family members and friends may not be able to provide impartial or

confidential interpreting in the medical context, even if they are skilled sign language users: In certain circumstances, notwithstanding that the family member or friend is able to interpret or is a certified interpreter, the family member or friend may not be qualified to render the necessary interpretation because of factors such as emotional or personal involvement or considerations of confidentiality that may adversely affect the ability to interpret 'effectively, accurately, and impartially.' 56 Fed. Reg. 35553 (July 26, 1991). When there is a dispute between the health care provider and the deaf individual as to the appropriate auxiliary aid, the Justice Department strongly urges the doctor to consult with the deaf person about the effectiveness of a proposed auxiliary aid. It also cautions that complex discussions, such as those about health issues, may require interpreter service if that is the 01-03567 3 communication method used by the deaf individual: The Department wishes to emphasize that public accommodations must take steps necessary to ensure that an individual with a disability will not be excluded, denied services, segregated or otherwise treated differently from other individuals because of the use of inappropriate or ineffective auxiliary aids. In those situations requiring an interpreter, the public accommodations must secure the services of a qualified interpreter, unless an undue burden would result. . . . It is not difficult to imagine a wide range of communications involving areas such as health, legal matters, and finances that would be sufficiently lengthy or complex to require an interpreter for effective communication. 56 Fed. Reg. 35566-67 (July 26, 1991). Typical examples of situations in which interpreters should be present are obtaining a medical history, obtaining informed consent and permission for

treatment, explaining diagnoses, treatment and prognosis of an illness, conducting psychotherapy, communicating prior to and after major medical procedures, explaining medication, explaining medical costs and insurance issues, and explaining patient care upon discharge from a medical facility. 01-03568