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.

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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
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.

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 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

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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?

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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

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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
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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.

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