FEB 1 1995 The Honorable Thomas Daschle United States Senate 317 Hart Senate Office Building Washington

, DC 20510-4103 Dear Senator Daschle: This is in response to your inquiry on behalf of your constituents, Senator Jim Lawler and Ms. Karen Shea, regarding the obligation of health care providers, under title III of the Americans with Disabilities Act (ADA), to provide auxiliary aids or services, including sign language interpreters, to persons with hearing impairments. The Department of Justice is committed to ensuring 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. In 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 cc: Records; Chrono; Wodatch; McDowney; Hill; MAF; FOIA n:\udd\hille\policylt\daschle.ltr

01-03601

-2complex, 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. 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. Nor does the ADA permit assessment of a surcharge to cover the cost of pre-arranged auxiliary aids on a patient with a disability for a cancelled appointment. However, the ADA does not prohibit a health care provider from imposing a deadline for cancellations or from charging a fee for missed appointments if the deadline is not met, as long as the deadline and fee are applied and enforced uniformly against all patients, without singling out patients with disabilities. Health care professionals cannot use a 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. 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. 01-03602 -3I hope this information will be helpful to you in responding to your constituents. Sincerely, Deval L. Patrick Assistant Attorney General Civil Rights Division

01-03603

United States Senate Washington, DC 20510-4103 December 12, 1994 The Honorable Janet Reno Attorney General United States Department of Justice Constitution Ave. and 10th St., NW Washington, DC 20530 Dear Attorney General Reno: Recently, I have been contacted by several constituents regarding their concerns with the Americans with Disabilities Act (ADA) requirement for interpreter services. Enclosed for your review are copies of some of the

correspondence. As you will note, some specific questions have been posed regarding interpreter services. Judging from the constituent letters, an overriding concern appears to be that when patients insist on having an interpreter, such a professional must be provided regardless of whether a need for the services is demonstrated. Furthermore, according to my constituents, an interpreter often appears for an appointment, but, without notification, the patient does not show up. In those instances, the service provider is obligated to pay the interpreter. As you might imagine, there is great concern over the costs being incurred by the providers in such instances. According to my constituents, many providers had used alternative methods, such as lip reading or writing instructions, which reportedly were acceptable to the clients, but now must provide an interpreter on demand. It is mentioned in the correspondence that requiring an interpreter may be viewed as an unfunded mandate and prompt providers to try and avoid treating the disabled. I would urge your careful consideration of these concerns and comments. In addition, I would greatly appreciate your input and suggestions regarding any possible solutions. I look forward to hearing from you. With best wishes, I am Sincerely, Tom Daschle United States Senate TAD/abg Enclosure 01-03604 ​November 26, 1994 PRINTED ON RECYCLED PAPER Senator Jim Lawler

Senator Thomas A. Daschle 317 Hart Senate Office Building Washington, DC 20510-4103 Dear Senator Daschle: This letter seeks information regarding the Americans with

Disabilities Act and specifically if it has placed an undue burden on certain providers where there are clusters of consumers because of availability to schools or other services. I am enclosing a copy of a letter I received from Ms. Karen Shea, Central Plains Clinic in Sioux Falls, South Dakota. I also serve on the Mayor's Committee for People with Disabilities in Aberdeen. There has been discussion about this matter at these committee meetings as well. Specifically, I would like to propose some questions about interpreter services for your consideration. Perhaps, there should be some fine tuning to this Act so it is more acceptable to the providers and still assure safety for the consumers. 1) Is it fair that providers must pay for two hours of interpreter service with no way to expense it off or to bill for recovery? 2) Many providers had a system in place such as lip-reading or writing instructions which reportedly was acceptable to many clients. Although this was working, they must now pay for an interpreter whether needed or not. 3) Is there any concern that the clients are being coached by the interpreters to request an interpreter, thus assuring full time employment for the interpreter? There are instances reported that the interpreter shows up for an appointment and the client does not and the provider still must pay for the minimum two hours of interpreter time. 4) If there are abuses, it could create a climate where the providers will be reluctant to serve the clients because they feel they are being made to pay for services that may not always be indicated. I understand they can take a write-off from their Federal Income Tax return once a minimum level of charges is reached. 01-03605​ I believe one must assure disadvantaged people are fully protected and that medical instructions are understood, but I also believe the providers should not be expected to absorb expenses, especially unnecessary expenses, when they cannot recover. This is another unfunded mandate on private vendors and could provide the

incentive for finding ways to avoid treating the disabled. I would appreciate if you would correspond directly with Ms. Shea and send copies to me of any information or transmittals. It just seems the Act could use some amendments and make it a better law. Thanks for taking time to read and to respond.

Sincerely,

Senator Jim Lawler District #3

01-03606

CENTRAL PLAINS CLINIC LTD. CPC# August 23, 1994 Senator Jim Lawler 2704 NW 30th Aberdeen, SD 57401 Dear Senator Lawler: On April 22, 1994 in Aberdeen at the South Dakota Clinic Managers State Meeting I visited with you regarding a problem Physician's offices have with "interpreters for the deaf." You asked that I send you some information regarding this and that you would look in to this for us. We are told that we must have an interpreter for our deaf patients whether we feel that one is needed or not if the patient wants it. Many of our deaf patients do not need one, but a lot of our deaf patients insist on having an interpreter. In one week in June we had four patients not show up for their appointments. None of them notified us before the appointment and the interpreter was already here. Each time we had to pay the interpreter $30 for coming to our office. Many times the office visit is not much more than the price of the interpreter. I would appreciate it very much if you could tell me what you found out about the situation. Sincerely,

Karen Shea

1100 East 21st Street Accredited by Sioux Falls, South Dakota 57105 Accreditation Association (605) 335-2727 for Ambulatory Health Care, Inc. 01-03607