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Health Care Providers, Deaf Patients:
When Interpreters Are Required
 
 
(Source: Anonymous Attorney)
 

The offices of physicians and other health care providers are expressly listed as places of public accommodation subject to Title III of the ADA. ( 42 U.S.C 12181 (7) (f)) Title III requires owners and operators of all places of public accommodation to furnish appropriate aids and services-including interpreter- for hearing-impaired persons when that is necessary to ensure "effective" communication. (See, 28 C.F.R 36.303(b); DOJ’s Title ​III Technical Assistance Manual, pg. 25) That requirement is subject to the " undue hardship" and "fundamental alteration" defenses. (42 U.S.C. 12182(b) (2) (A) (ii) and (iii)) Thus, when provision of an interpreter is necessary to ensure effective communication between a health care provider must provide the interpreter unless either the undue hardship or fundamental alteration defense is satisfied. The "fundamental alteration defense will probably never be satisfied-it is hard to imagine a situation in which the presence of an interpreter would fundamentally alter the nature of a health practitioner’s program. And, the undue hardship test will only rarely be satisfied, since under that test the cost of the interpreters services is not compared to the fee paid by the individual deaf client for the particular service provided, but to the health care practitioner’s overall financial budget and operations. (See 28 C.F.R 36.104) In a few situations, however, that test may be satisfied. For example, a health care practitioner who has a very large number of deaf patients, and whose patients primarily include people whose health care is paid for entirely by Medicare at minimum rates, might suffer an undue hardship if required to hire an interpreter at 25-30 an hour for that very large of patients. Even them, however, alternative accommodations that would not constitute an undue hardship might be feasible. One possibility may be for the health care practitioner to hire someone who uses sigh language as a full-time employee to serve in dual capacities (such as receptionist/ Interpreters, ect) But these types of situations will be relatively rare. For in most cases the undue hardship test will simply not be satisfied. The big issue in most cases. Therefore, will involve considerations of whether an interpreter is necessary for effective communication.
 
In the view of this author, in the majority of medical situations interpreters will be required to ensure effective communication between deaf patients and health care practitioners. Many deaf people in the United States communicate via the use of American Sign Language(ASL) ASL is a distinct language of its own having unique morphological and syntactic principles. It bears no structural resemblance to English and is not English breed-thus if does not resemble to English. For example, while in English one might ask "What are your hobbies?" the same question in ASL would be signed as "time off do do do" accompanied by facial expression and gestures indicating that a question is being asked. For ASL users to understand what their health care practitioners are saying, communications must be via ASL. For a doctor, dentist, physical therapist, or the like to write to an ASL user in English, would be of little, if any, value in most situations. Just as it would be of no value for a health care practitioner to write English notes to a Spanish speaking person. Medical care generally involves discussion of complex issues that will need to be interpreted for an ASL user from English to ASL.
 
Even when deaf patients used signed English rather than ASL; interpreters may be required in many medical situations. The complex nature of most medical situations, and the ability of the deaf patient to discuss medical issues fully with the health care practitioner, will in most cases be beyond the scope of written notes. Further, in some situations deaf patients who communicate orally rather than via sign language, will require oral interpreters. These are interpreters who silently mouth the words of a health care practitioner for the benefit of the oral deaf patient. In other situations, the health care practitioner may not understand the speech of an oral deaf person; thus an oral interpreter would need to repeat the deaf patients words for the benefit of the practitioner.
 
The Department of Justice has recognized that if a deaf person becomes "serious" about buying a car " the services of a qualified interpreter may be necessary because of the complicated nature of the communication involved in a buying a car (DOJ’s Title III Technical Assistance manual, page 25). Discussing medical issues with a health care practitioner usually involves communication at least as complicated as that involved when buying a car. The number of instances in which a deaf person has come away from a visit with a medical practitioner (without an interpreter) not understanding a) the nature of his medical condition; (b) what treatment he should follow for his medical condition, and (c) necessary follow-up treatment for his condition, are legion.
 
Many deaf people simply cannot receive appropriate medical care if an interpreter is not available to ensure effective communication. It is not only the deaf patient who benefits from an interpreter, the health care practitioner also benefits. Frequently health care practitioners are required to obtain inform consent from patients before performing diagnostic and therapeutic procedures. Absent the use of interpreters it is unlikely that the informed consent of many deaf people can be obtained. Further, a health care practitioner may be found liable for malpractice if, due to the lack of effective communication between practitioner and patient, a deaf patient suffers medical injury. It is to everyone’s benefit, patient and health care practitioner alike to ensure effective communication without an interpreter and a deaf patient, and interpreter an interpreter should be provided-to protect both practitioner and patient.