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One area of Americans with Disabilities Act (ADA) compliance that can be confusing for medical practices is the obligation to provide sign language interpreting services to patients who are deaf and hard of hearing. That requirement is more stringent than many realize.
Roy W. Breitenbach, JDOne area of Americans with Disabilities Act (ADA) compliance that can be confusing for medical practices is the obligation to provide sign language interpreting services to patients who are deaf and hard of hearing. That requirement is more stringent than many realize.
The ADA, enacted in 1990, prohibits disability discrimination by “public accommodations.” Healthcare facilities and private medical practices have consistently been found to be places of public accommodations, and thus subject to the requirements of ADA Title III.
ADA requirements for physicians
Specifically, ADA Title III provides that no individual may be discriminated against on the basis of disability in the full and equal enjoyment of the services offered in any place of public accommodation.
Colleen M. Tarpey, JDTo ensure “full and equal enjoyment,” public accommodations must afford persons with disabilities the right to participate in the services provided by the public accommodation. Penalties for non-compliance with ADA Title III are substantial. Federal regulatory agencies are empowered to impose significant fines on public accommodations that violate ADA Title III.
These agencies-or the courts-may require public accommodations to undertake extensive corrective action to come into Title III compliance, and subject themselves to long-term compliance monitoring. Also, because almost all healthcare facilities and private medical practices participate in federal health programs such as Medicare and Medicaid, they can be held liable for damages in private lawsuits brought by persons with disabilities.
Thus, ADA Title III compliance is vitally important for healthcare facilities and private medical practices.
Hearing impairment obligations
ADA Title III obligates physician practices, hospitals, and other healthcare providers to provide-and pay for-qualified sign language interpreters when a patient needs an interpreter to “effectively communicate” with a healthcare provider about the patient’s medical condition, treatment, or prognosis.
A qualified interpreter is one who is “able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.”
When does a deaf patient need a qualified interpreter to effectively communicate with a healthcare provider?
Official policy statements made by the United States Department of Justice (DOJ) and the United States Department of Health and Human Services (HHS) make it clear that a interpreter is required when a deaf patient’s primary means of communication is sign language and the patient must have a substantive discussion with his or her healthcare provider.
HHS has expressly stated that “it would be extremely difficult for the healthcare provider to demonstrate in certain service settings that effective communication is being provided in the absence of ... interpreters.” According to HHS, those service settings include “points during which critical medical information is communicated, such as at admission, when explaining medical procedures, when an informed consent is required for treatment and at discharge.”
Rules for providing interpreting services
These official policy statements also make it clear that a healthcare provider should not rely on family members for interpreting, because of the potential for conflicts of interest and confidentiality breaches.
Reliance on lip reading as a substitute for sign language interpreting services can pose problems, because many deaf persons find lip reading difficult. Written communication is often also insufficient to ensure effective communication.
Healthcare provider must pay
The enforcement agencies make it clear that a healthcare provider cannot charge a patient for providing the interpreting services.
Moreover, it is the healthcare provider’s obligation to pay for interpreters for their deaf patients, regardless of the cost, and even if the cost of interpretation services exceeds the amount the provider will receive for the services rendered.
There are, however, a few exceptions to this rule. For example, as a result of a consent decree entered into between Oxford Health Plans and the New York State Department of Health, Oxford must pay for interpreters for their members.
Further, physician practices that have fewer than 30 full-time employees or less than $1 million in annual gross receipts can take a tax credit equal to one-half of the cost of interpreters and similar measures that exceed $250.
Finally, the law exempts a medical practice from the requirement to provide sign language interpreting services where the provision of those services would be an “undue burden” on the provider. But the DOJ has issued guidance indicating that a provider’s overall resources, rather than a comparison to the fees paid by the customer needing the interpreter, determine what constitutes an undue burden and what does not.
In other words, a provider cannot argue that the provision of sign language interpreting services is an undue burden simply because the one-time cost of an interpreter is higher than the fee the provider earns for that single business.
Moreover, if a specific communications method would be an undue burden, a business must provide an effective alternative if one exists.
Comply or face penalties
Medical practices and facilities must comply with their obligation to provide sign language interpreting services under ADA Title III. Failure to do so subjects the provider to significant penalties. Accordingly, all healthcare practitioners must become familiar with this complex area of federal law.
It is vitally important to consult competent legal counsel whenever these circumstances arise to ensure effective communication in a manner that complies with the law.
Roy W. Breitenbach, JD, is a partner and Colleen M. Tarpey, JD, is an associate at Garfunkel Wild, P.C., Great Neck, New York. Send your practice management questions to firstname.lastname@example.org.