|Obligations Under the Americans with Disabilities Act (ADA)
(Source: NAD Legal Center)
Title III of the Americans with Disabilities Act, 42 U.S.C. §§12182, 12183, (ADA) provides people with disabilities with the rights to equal access to public accommodations. For deaf and hard of hearing people, Title III and its regulation will be of tremendous help in removing communication barriers.
Title III covers a wide range of places of public accommodation, including private health care providers, such as doctors´ offices, private mental health services, dental offices, and other private health care providers. All of these public accommodations are required to provide auxiliary aids and services to ensure effective communication with deaf and hard of hearing people.
The U.S. Department of Justice regulation to Title III of the ADA, 28 C.F.R Part 36, and the Analysis thereto, 56 Fed. Reg. 35544 - 35691 (July 26, 1991), explain in detail the requirements of this title. Public accommodations are required to provide auxiliary aids when such are necessary to enable a person with disabilities to benefit from their services:
A public accommodation should furnish appropriate auxiliary aids and services where necessary to &ensure effective communication with individuals with disabilities. 28 C.F.R. §36.303(c).
A comprehensive list of auxiliary aids and services required by the ADA is set forth in this regulation, and includes, for deaf and hard of hearing individuals, "qualified interpreters." 28 C.F.R. 36.303(b)(1).
The Department of Health and Human Services, Office for Civil Rights (OCR), has determined that effective communication must be provided at "critical points" during provision of health care services. OCR has defined "critical points" to include those points during which critical medical information is communicated, when explaining medical procedures, and when an informed consent is required for treatment. U.S. Department of Health and Human Services, Office for Civil Rights, Region III, Letter of Findings, Ref. No. 03913037 (December 12, 1991), at 5.
The Analysis to the ADA Title III regulation clarifies that use of family members or friends to interpret may not meet the requirements of the law:
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. at 35553.
The problems that may arise with having a family member or friend interpreting in a medical setting are considerable. There may be necessary information that the family member fails to communicate, in a misguided effort to shield the deaf patient. There may be questions the deaf person will not ask in the presence of the family member or friend. The family member or friend may be too emotionally upset by the medical situation to interpret correctly. Finally, the family member or friend will seldom meet the qualification requirements of the law.
The Department of Justice does not permit a public accommodation to charge a person with a disability for the cost of the auxiliary aid provided. The Title m regulation states:
A public accommodation may not impose a surcharge on a particular individual with a disability ... to cover the costs of measures, such as the provision of auxiliary aids... that are required to provide that individual... with the nondiscriminatory treatment required by the Act or this part. 28 C.F.R. 36.301(c).
Physicians should note that there are tax credits available for expenses incurred in the course of accommodating patients with disabilities. The Access Credit, created by Revenue Reconciliation Act of 1990, provides a tax credit of one half of the cost of interpreters and similar measures that exceed $250.00. This credit, available only to businesses which have either thirty of fewer full time employees or gross receipts of under one million dollars annually, will greatly reduce the cost of such accommodations for most physicians.
Many physicians wonder why the exchange of written notes will not suffice with a deaf patient. The Department of Health and Human Services recognizes that there is a distinction between English and American Sign Language, and that written communications, or interpreters not skilled in American Sign Language (ASL), will not suffice as effective communication for deaf persons who utilize ASL:
... American Sign Language (ASL) [is] a manually communicated language distinct from English and whose idioms and concepts are not directly translatable into English. It uses different sentence structure, grammar and syntax than English, and is as much a foreign language to English speaking persons as is French or German. Conversely, English is equally foreign to most deaf persons who rely on ASL for communication. It is a common misconception that "sign language" is merely a pantomime of the English language and is therefore easily understandable in print if not auditorily. ASL sentences do not follow English sequential patterns. As a result, direct translation of English, as with written notes, into ASL will not necessarily convey the intended message. Similarly, much of English idiomatic speech would be lost on the ASL user whose frame of reference for idiom is significantly different from the hearing person.
U.S. Department of Health and Human Services, Office for Civil Rights, Region III, Letter of Findings, Ref. No. 03913037 (December 12, 1991) at 4.