AUG 28 1997 The Honorable Joseph I. Lieberman United States Senate Washington, D.C.

20510 Dear Senator Lieberman: I am responding to your inquiry on behalf of your constituent, Dr. Jeffrey I. Gorelick, regarding a physician's obligation to provide auxiliary aids or services for persons with disabilities, and the burden of the costs associated with this requirement. Please excuse our delay in responding. The Americans with Disabilities Act (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 a simple procedure. It may also be possible to provide effective communication by using a computer at which the doctor and patient can type out their communication. However, if the information to be conveyed is lengthy or complex, the use of written notes may be extremely slow or cumbersome and the use of an interpreter may be the only effective form of communication. Dr. Gorelick's letter specifically raises issues associated with treatment provided to a deaf patient who, following an office visit, had an interpreter submit fees that exceeded the reimbursement that the doctor's practice received in Medicare payments for treating the patient. He thus incurred a net loss in treating the Medicare eligible patient. (handwritten) FOIA -2Under 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 on pages 607-610 of the enclosed regulation. 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. As amended in 1990, the Internal Revenue Code permits eligible 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. Information about the tax credit and the tax deduction, including the appropriate form to file for a tax deduction, are enclosed. Another consideration related to costs associated with the provision of auxiliary aids involves the fact that it is the physician who decides ultimately what the appropriate auxiliary should be. The auxiliary aid provisions of the ADA do not contemplate that a patient with a disability can unilaterally decide on the appropriate type of auxiliary aid. If a patient who is deaf brings a sign language interpreter for an office visit without prior consultation and bills the physician for the cost of the interpreter, the physician is not obligated to comply with the unilateral determination by the patient that an interpreter is necessary. The physician must be given an opportunity to consult with the patient and make an independent assessment of what type of auxiliary aid, if any, is necessary to ensure effective communication. If the patient believes that the physician's decision will not provide effective communication,

then the patient may challenge that decision under title III by -3initiating litigation or filing a complaint with the Department of Justice. I hope this information will be helpful to you in responding to your constituent. Sincerely, Isabelle Katz Pinzler Acting Assistant Attorney General Civil Rights Division Enclosures UROLOGY ASSOCIATES OF DANBURY, P.C. ADULT & PEDIATRIC UROLOGY WILLIAM T. HENNESSY, M.D., F.A.C.S. JEFFREY I. GORELICK, M.D., F.A.C.S. EDWARD M. BECK, M.D., F.A.C.S. 01 MAY 15 AM 9:03 JOHN K. LUDLOW, M.D. DANBURY OFFICE RIDGEFIELD OFFICE PATTERSON PARK OFFICE 73 SAND PIT ROAD, SUITE 204 30 PROSPECT STREET, SUITE 300 OLD ROUTE 22, SUITE102 DANBURY, CT. 06810-4041 RIDGEFIELD, CT 06877 BREWSTER, NEW YORK 10509203-748-0330 203-748-0330 914-278-4200 FAX: 203-797-0255 FAX: 203-797-0255 FAX: 914-278-4194 May 9, 1997 Danbury News Times Letters to the Editor 333 Main Street Danbury, CT 06810 Re: Impact of Aspects of the American Disabilities Act (ADA) on Small Group Medical Practices I am sure the intent of special interest groups and legislators when passing legislation such as the American Disabilities Act, is good natured and looking out

for the well being of those citizens that are afflicted with disabilities, but as with many other aspects of our bureaucracy, they fail to recognize the practical, every day impact of such legislation and how what may be a benefit or entitlement to one, may impose unfairness to another. Case in point has occurred on multiple occasions in our medical practice, specifically regarding patients who are hearing and speech impaired. We see patients who are on state welfare and those who have absolutely no insurance at either minimal or no compensation whatsoever, as our moral and professional obligation to serve the needs of those less fortunate in our community. We recently saw a deaf patient who is on state welfare for a problem who brought with them a sign language interpreter for the office visit. Soon after that visit, we received an itemized bill from that sign language interpreter for her hourly fee, which not only was for her time spent in our office but actually began from the time that she left her home or facility, until she returned there. This fee was almost double the fee that we receive from the state for providing medical service to the patient. We, therefore, incurred a financial loss by seeing this patient. It seemed amazing to me as citizen and small business owner that there could be such a law Danbury News Times Page 2

that required us to pay for the interpreter for this disabled patient, but when we checked with advocates for thehearing impaired as well as independent sources, we were shocked to find that that is, indeed, part of the American Disabilities Act. It is one thing for us to take time out of our schedules to see patients free of charge, which I said earlier, that we do on a daily basis, but to actually incur a financial loss and have to pay to see patients is an absurdity. Though we are first physicians, we also have a business and as businessmen, we have salaries to pay and overhead to maintain. We would not be able to provide service to the community for very long if we had to take a financial loss and pay to see many patients. If our government and our society feels that the disabled, such as the hearing impaired, are entitled to this service, then I think that that is laudable, but it is incumbent upon the government and society to, therefore, pay for that entitlement. Why should the private sector, like our practice, be legislated to pay for those social benefits for this or any other patient. Once again, I must emphasize that I am not against this patient or any like him receiving sign language interpreter services, but what I am against is that I am being asked to personally pay for that service as opposed to the state or federal

government. We provide voluntary, uncompensated services to the community far beyond that of any profession and this is just one example of how we get taken advantage of by this system. I, for one, am becoming increasingly discouraged by such unfair bureaucratic practices and legislation. Sincerely yours, Jeffrey I. Gorelick, M.D., F.A.C.S. JIG:ku cc: Fairfield County Medical Association, 2285 Reservoir Ave., Trumbull CT 06611 Senator Mark Nielson, District Office, P.O. Box 421, Danbury, CT 06813 Rep. Christopher Scalzo, Legislative Office Building, Room 4200, Hartford, CT 06106-1591 Congressman James Maloney, Federal Building, 135 Grand St., Room 211, Waterbury, CT 06702 Senator Joseph Lieberman, 316 Hart Senate Office Building, Washington, DC 20510 Senator Dodd, 444 Russell Building Washington, DC 20510 Rep. David Capiello, Legislative Building, House of Rep., Room 4200, Capital Ave., Hartford, CT 06106 Rep. Julia B. Wasserman, 113 Walnut Tree Hill Rd., Sandy Hook, CT 06482 Rep. Norma Gyle, 6 Milltown Rd., New Fairfield, CT 06812 Rep. Judith Freedman, Crawford Road, Westport, CT 06880