Bennett and Katz – ADA Obligations to Deaf Patients

 By Sherri R. Katz and Robert S. Bennett 

Katz-bob-bennett-houston-attorneyWhat are the responsibilities of a health care provider regarding providing a sign language interpreter for a deaf patient, and can a doctor refuse to treat this deaf patient without being subjected to an allegation of discrimination?

The short answer is that health care providers should carefully consider an established and/or a new patient’s request for a sign language interpreter to ensure effective communication with the patient in compliance with the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

Hypothetical Facts

 ADA-bennett-houston-bobA doctor’s office is contacted by a new patient to schedule an appointment with the doctor.  Patient is deaf, and is in contact with a communication access group that supports the efforts of hearing impaired individuals.  Patient, via the access group representative, informs the doctor that he has an obligation to provide a sign language interpreter for patient.  This information is also provided in writing, with various documents attached, such as materials from the National Association of the Deaf.

These materials include a public two-page letter to U.S. Rep. Howard L. Berman dated 8/28/1992 from Acting Assistant Attorney General; a two-page public letter to a doctor dated 6/29/1992 from Deputy Director of the ADA Civil Rights Division; and a two page American Medical Association memo prepared by the AMA Office of the General Counsel.

The patient requests that the doctor provide a qualified interpreter to ensure effective communication, due to the possible complexity of the communication involved.

Discussion

Compliance with americans with disabilities act and the Rehabilitation act

 

Healthcare providers are prohibited from discriminating against deaf individuals by both the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973.  The Rehabilitation Act has long prohibited programs receiving federal funds from discriminating against individuals on the basis of disability.

Section 504 of the Rehabilitation Act guarantees that person with disabilities will receive “meaningful access” to programs and activities receiving federal financial assistance.  Several courts, including the 5th Circuit, have held that the receipt of Medicare and Medicaid funds constitutes “federal financial assistance” and thus subjects health care providers to the mandates of section 504.[1]

Title III of the Americans with Disabilities Act (ADA) followed the reasoning of the Rehabilitation Act and extends protection to disabled individuals in the private sector by prohibiting discrimination against individuals with disabilities by places of public accommodation.  Private health care providers are considered places of public accommodation.  Title III of the ADA applies to all private health care providers, regardless of the size of the office or the number of employees.  It applies to providers of both physical and mental health care, and includes offices of private physicians and dentists.

The protections of disabled persons under Title III of the ADA are not as broad as those provided by section 504, since section 504 encompasses any program or activity that receives federal funds.  However, the rights and responsibilities established by the ADA and the Rehabilitation Act are nearly identical and the two statutes are, for the most part, distinguished by the fact that section 504 applies only to entities receiving public funding.  A claim brought under the Rehabilitation Act is interpreted in the same manner as a claim brought under the ADA

Under Title III of the ADA, health care providers have a duty to provide effective communication, using auxiliary aids and services that ensure that communication with people who have a hearing loss is as effective as communication with others.  This duty is to ensure that that an individual with a disability, such as hearing loss, is not excluded, denied services, segregated, or otherwise treated differently than other individuals.  The duty to provide effective communication applies to customers, clients, and other individuals with hearing loss who are seeking or receiving services from the health care provider.

According to Title III, appropriate auxiliary aids and services can include equipment or services a person needs to understand aural communication.  This includes qualified interpreters, assistive listening devices, notetakers, written materials, television decoders and telecommunications devices for the deaf (sometimes called TTY’s or TTD’s).

However, Title III of the ADA does not require the use of any auxiliary aid or service that would result in an undue burden on the health care provider, or in a fundamental alteration in the nature of the goods or services provided by a health care provider.  However, the health care provider still has the duty to furnish an alternative auxiliary aid or service that would not result in a fundamental alteration or undue burden.

An individual doctor’s liability under both Title III of the ADA and section 504 of the Rehabilitation Act depends upon the degree of control he exercises over the practices and policies that led to the alleged discrimination of a disabled individual.  It is clear that doctors practicing in their own offices are subject to both Title III and section 504 because they exercise ownership and operation of their own offices’ policies and practices.[2]

There is, however, limited relief for patients claiming a denial of auxiliary aids under Title III of the ADA.  Because a private plaintiff suing under Title III can obtain only injunctive relief, and not compensatory relief, the plaintiff has to satisfy standing requirements, which has evolved into the theory used by a number of courts which have dismissed plaintiff’s claims on lack of standing because of inability to show that the injury complained of would likely occur again in the future.[3]

By contrast, a plaintiff suing under Section 504 of the Rehabilitation Act can recover compensatory damages.  But section 504 does not provide a federal medical malpractice tort remedy.[4]  And, there have evolved provisions whereby the auxiliary aids provisions of Title III of the ADA have proven particularly well suited to public enforcement actions brought by the Department of Justice or the United States Attorney’s Office for that particular jurisdiction.

 

Practical Considerations

 

Although “effective communication” is mandated by section 504 and Title III of the ADA, the term is not defined specifically by the regulations of either statute.  Likewise, case law has not provided a precise meaning of the term either.  By looking at general dictionary definitions, “effective communication” appears to encompass the idea that knowledge is shared in a manner that is capable of bringing about a desired result.  This would refer to the communication between the patient and the medical staff which successfully conveys knowledge, thoughts, and opinions successfully between doctor and patient.

Although healthcare providers have a duty to ensure effective communication with deaf patients, they do have some choice as to the aids and services they will provide. The auxiliary aid requirement is flexible, and the health care provider can choose among various alternatives as long as the result is effective communication for the deaf patient.  The effectiveness of an auxiliary aid or service is measured by a flexible standard that takes into account the nature of the communication and the length and complexity of the communication involved.

There is some argument that a health care provider, as a recipient of federal funding under section 504, is required to give primary consideration to a deaf patient’s request for an interpreter.  In a policy letter released by the Office of Civil Rights, which is still in effect today, it was stated that health care providers should give a level of deference to a patient’s choice of auxiliary aid or service because, in most circumstances, the deaf person is in the best position to judge which means of communication will give him or her equal opportunity in health service.  This deference means that the patient’s judgment in choosing effective communication must be considered of utmost importance.

In addition, the Department of Justice expects that the health care provider will consult with the deaf patient and “consider carefully” his or her self-assessed communication needs before acquiring a particular aid or service.[5]

Sometimes, a healthcare provider might be tempted to use family members or friends of the deaf patient to interpret, in an attempt to comply with the effective communication requirement.  If a health care provider is considering this alternative, they should proceed with caution.  The use of family members as interpreters has been recognized as failing to meet the proper standards for confidentiality and privacy for the deaf patient.  In addition, a family member or friend will likely lack specialized training in signing medical terminology.

Moreover, regulations to the ADA expressly recognize that family members and friends are generally not consider “qualified” interpreters, by stating that the family member or friend may not be qualified because of personal involvement, or considerations of confidentiality that may adversely affect the ability to interpret effectively, accurately, and impartially.[6]

Although it may be the situation that the cost of providing an auxiliary aid or service, such as a sign language interpreter, may exceed the charge to the patient for that very same service, it is widely believed that the health care provider is expected to treat the costs of providing the auxiliary aid as part of the annual overhead costs of operating a business.  It must also be remembered that the health care provider cannot charge a patient for the costs of providing auxiliary aids, either directly or through the patient’s insurance carrier.[7]

If the health care provider does provide a sign language interpreter or other auxiliary aid or service, the business may claim a tax credit of up to 50 percent of eligible access expenditures that are over $250 but less than $10,250.  Eligible access expenditures include the costs of interpreters or TTY’s, or providing other auxiliary aids and services.[8]

Conclusion

There is a need for accurate, immediate, and effective communication in medical settings.  By using a sign language interpreter, a health care provider would avoid any problems in the failure of a deaf patient (or family member) to communicate vital information to his health care staff, such as the patient’s health history and current symptoms.  Further, without the aid of a sign language interpreter, a health care provider might not be able to explain medical procedures and options, including obtaining informed consent from a deaf patient to perform an indicated and necessary medical procedure.

Any lack of effective communication between a deaf patient and a health care provider could possibly lead to misdiagnoses and/or problems in treatment.  This, in turn, could potentially lead to a standard malpractice claim against the health care provider, in addition to potential claims under Title III of the ADA or section 504 of the Rehabilitation Act.

It is usually the conclusion that the nature of the possible repercussions of failing to provide a sign language interpreter, measured against the relative expense of retaining such an auxiliary aid for the deaf patient might lean toward providing the sign language interpreter that the patient has requested.

Communication with the patient might result in an agreement to utilize a different auxiliary aid or service rather than a sign language interpreter to meet the ADA’s requirement of effective communication, but caution might suggest giving deference to a patient’s analysis of her situation and her request for a sign language interpreter.

The cost of this auxiliary aid must be absorbed as office overhead, and cannot be billed directly to the patient or her insurance carrier.  However, consultation with the health care provider’s tax advisor is recommended to discuss the options available to claim the cost of auxiliary aid or services as a tax credit.

Bennett and Katz practice in Houston, Texas.

 

 


[1] See Frazier v. Board of Trustees of NW Miss. Regional Med. Center, 765 F.2d 1278 (5th Cir. 1985).

[2] See Mayberry v. Von Valtier, 843 F. Supp 1160 (E.D. Mich. 1994)(court applied both Title III and section 504 to an individual doctor who allegedly failed to provide a sign language interpreter to a profoundly deaf patient during office visits).

[3] See Aikens v. St. Helena Hospital, 843 F. Supp. 1329 (N.D. Cal. 1994)(dismissing ADA claims for lack of standing).

[4] See Grazn v. Charter Hosp. of NW Indiana, 104 F.3d 116 (7th Cir. 1997).

[5] See 56 Fed. Reg. at 35566-67.

[6] 28 Code of Federal Regulation, section 36.104 app. B (1995).

[7] 28 Code of Federal Regulation, section 36.301 (c).

[8] You should consult your tax adviser for the most current federal tax regulations regarding claiming a tax credit for auxiliary aids and services.