A colleague asked the following questions:
Over the last 2 years, I’ve had a couple of situations in which I have had to hire a sign-language interpreter. One that we hired charged us for the time in the office and also for the travel time to and from Portland, Maine, at the same rate. Ridiculous! Total fee was almost $500 for a 50-minute session. The other one we hired was more local, and I did not feel as put upon by her fee. One of the mothers who needed the sign-language interpreter explained to us that she was great with e-mail and she would only occasionally need signing help. Fine. No big deal. The other mother, while she seems quite good at e-mail, now seems to be saying that she wants a sign-language interpreter each time her daughter comes in the office. We are just starting treatment so this will be a 2-year commitment from me. I am wondering what the legal requirements are. Is there any reimbursement available from either the state or federal government for this extra expense? If I hire a signing interpreter each time the mother is in the office, I will pay the interpreter more than my total fee. Any thoughts?
I have several thoughts, but none that I can put in print. However, to answer these questions, I have copied the following from the Web site of the National Association for the Deaf: www.nad.org/issues/health-care/providers . Since our offices are places of public accommodation, we are required to comply with a myriad of federal and state laws covering access to health care by people with certain disabilities. The reasoning behind these statutes is that we must be able to communicate effectively in order to provide appropriate, effective, and quality health care services. The 2 most relevant statutes are Section 504 of the Rehabilitation Act of 1973, which applies to federal health care services and facilities, and health care providers who receive federal financial assistance (Medicaid funds); and Title III of the Americans with Disabilities Act (ADA), which applies to all private health care providers.
Which private health care providers are covered under the ADA?
Title III of the ADA applies to all private health care providers, regardless of the size of the office or the number of employees (28 C.F.R. §36.104). Hospitals, nursing homes, psychiatric and psychological services, offices of private physicians, dentists, health maintenance organizations (HMOs), and health clinics are included among the health care providers covered by the ADA. If you have a home office, the portion of the home used for public purposes, including the entrance, is considered a place of public accommodation (28 C.F.R. § 36.207).
What is the obligation of health care providers under the ADA to those who are deaf or hearing-impaired?
Health care providers have a duty to provide “appropriate auxiliary aids and services” when necessary to ensure that communication with people who are hearing disabled is as effective as communication with non disabled patients (28 C.F.R. § 36.303[c]). A health care provider must communicate effectively with all persons who are seeking or receiving his or her services (56 Fed. Reg. at 35565). Such individuals may not always be “patients” of the health care provider. For example, a deaf parent of a hearing child may require an auxiliary aid or a service to communicate effectively with health care providers, participate in the child’s health care, and give informed consent for the child’s treatment. Classes, support groups, and other activities that are open to the public must be also be accessible to deaf and hard of hearing participants.
What kinds of auxiliary aids and services are required by the ADA to ensure effective communication with deaf or hearing-impaired individuals and how does a health care provider determine which auxiliary aid or service to use?
Auxiliary aids and services include equipment or services that a person would need in order to access and understand aural information and to engage in effective communication. This includes qualified interpreters, written materials, computer-aided transcription services, assistive listening devices, captioning, or other effective methods that make aural information and communication accessible (28 C.F.R. § 303(b)). The auxiliary aid and service requirement is flexible, and the health care provider can choose among various alternatives as long as the result is effective communication with the deaf or hard of hearing individual. The U.S. Department of Justice expects health care providers to consult with the disabled person to evaluate their self-assessed communication needs before acquiring a particular aid or service (56 Fed. Reg. at 35566-67).
Why are auxiliary aids and services so important in medical settings?
Auxiliary aids and services are often needed for safe and effective treatment. Without them, medical staff run the grave risk of not understanding the patient’s symptoms, misdiagnosing the patient’s problem, and prescribing inadequate or even harmful treatment. In addition, hearing disabled patients might not understand treatment instructions, warnings, or prescription guidelines.
Are there any limitations on the ADA’s auxiliary aids and services requirements?
Yes. The ADA does not require the provision of any auxiliary aid or service that would result in an “undue burden or in a fundamental alteration in the nature of the goods or services” provided by a health care provider (28 C.F.R. § 36.303[a]). Making information or communication accessible to hearing disabled persons will not usually result in a fundamental alteration of a health care service, however an individualized assessment is required to determine whether a particular auxiliary aid or service would be an “undue burden.” An undue burden is something that involves a significant difficulty or expense. For example, it might be a significant difficulty to obtain certain auxiliary aids or services on short notice such as an emergency visit. Factors to consider in assessing whether an auxiliary aid or service would constitute a significant expense include the nature and cost of the auxiliary aid or service; the overall financial resources of the health care provider; the number of the provider’s employees; the effect on expenses and resources; legitimate safety requirements; and the impact upon the operation of the provider (28 C.F.R. § 36.104). Showing an undue burden can be difficult for most health care providers. When an undue burden can be shown, the health care provider still has the duty to furnish an alternative auxiliary aid or service that would not result in an undue burden and, to the maximum extent possible, would ensure effective communication (28 C.F.R. § 36.303[f]).
Must a health care provider pay for an auxiliary aid or service for a medical appointment if the cost exceeds the provider’s charge for the appointment?
In some situations, the cost of an auxiliary aid or service (eg, a qualified interpreter) may exceed the charge to the patient for the health care service rendered. A health care provider is expected to treat the costs of providing auxiliary aids and services as part of the overhead costs of operating a business. Accordingly, so long as the provision of the auxiliary aid or service does not impose an undue burden on the provider’s business, the provider is obligated to pay for the auxiliary aid or service. This cost cannot be passed on to the patient (28 C.F.R. § 36.301[c].
Who is qualified to be an interpreter in a health care setting, does everyone need the same type of interpreter, and can a family member or friend act as the interpreter?
A qualified interpreter is an interpreter who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary such as interpreting medical jargon (28 C.F.R. § 36.104). As there are various kinds of interpreters, the health care provider should ascertain the particular language needs of the hearing disabled person prior to hiring someone. Some individuals may require interpreters who are fluent in American Sign Language, a language with grammar and syntax that is different from the English language. Others may require interpreters who use Signed English, a form of signing which uses the same word order as does English. Hearing disabled persons who do not know any sign language may need oral interpreters who will articulate words for them, or cued speech interpreters who give visual cues to assist in lip reading (also called speech reading). Finally, as a general rule, family members and friends often do not possess sufficient skills to interpret effectively in a medical setting. Family members and friends are also very often too emotionally or personally involved, may have interests that conflict with the patient’s, may cause role confusion and are unable to interpret “effectively, accurately, and impartially.” Finally, using family members and friends as interpreters can cause problems in maintaining patient confidentiality (56 Fed. Reg. at 35553).
In what types of situations should a health care provider obtain the services of a qualified interpreter?
An interpreter should be present in all situations in which the information exchanged is sufficiently lengthy or complex to require an interpreter for effective communication. Examples may include, but are not limited to, discussing a patient’s medical history, obtaining informed consent, explaining diagnoses, treatment, and prognoses, communicating prior to and after major procedures, providing complex instructions regarding home care instructions or taking medication, and explaining costs, insurance, and scheduling matters.
Is lip reading or using written notes an effective form of communicating with individuals who are deaf or hard of hearing?
The ability of a deaf or hard of hearing individual to speak clearly does not mean that he or she can hear well enough to understand spoken communication or lipread effectively. Forty to 60 percent of English words and sounds look alike when spoken; and on average, the most skilled lipreaders understand only 25 percent of what is said. Lipreading is most often used as a supplement to the use of residual hearing, amplification, or other assistive listening technology. Because lipreading requires some guesswork, very few hearing impaired people rely on lipreading alone for exchanges of important information. Lipreading may be particularly difficult in the private practice setting where unfamiliar terminology is often used.
Exchanging written notes may be effective for brief and simple communication, though written communication can be slow and cumbersome. If a health care provider is communicating less or providing less information in writing than he or she would provide when speaking to a non disabled patient, this is an indication that writing to communicate is not effective in that context. Understanding written material may also depend on the reading level or literacy skills of the patient or parent. The reading level of deaf and hard of hearing individuals is as variable as the reading levels found in the general population. Additionally, for some hearing disabled, American Sign Language (ASL) is their first language. Because the grammar and syntax of ASL differs a lot from English, exchanging written notes may not provide effective communication between you and your patient. For some deaf or hard of hearing individuals, the services of a qualified sign language interpreter offer the only effective method of communication.
Must health care providers make conferences, health education, and training sessions that are open to the general public accessible to deaf and hard of hearing individuals?
Yes. Health care providers that offer training sessions, health education, or conferences to the general public must make these events accessible to deaf and hard of hearing individuals (28 C.F.R. §§ 36.201 & 36.202). Qualified interpreters, computer-assisted transcription services, assistive listening systems/devices, or other auxiliary aids or services may be necessary to ensure equal access to, and an equal opportunity to, participate for hearing disabled attendees.
Can health care providers receive any tax credits for the costs of providing auxiliary aids and services?
Eligible small businesses may claim a tax credit of up to 50 percent of eligible access expenditures that are over $250, but less than $10,250. The amount credited can be up to $5,000 per tax year. Eligible access expenditures include the costs for all of the aids and services described (Omnibus Budget Reconciliation Act of 1990, P.L. 101-508, § 44). You are urged to consult with your financial or tax advisor on this issue.
For all of you who are thinking that this is just 1 more example of big government sticking its nose into the affairs of small business owners, you’re right. Government is leveling the playing field so that those with hearing disabilities will have equal access to health care. Who among you believes that they are not entitled? My guess is that we won’t have many takers. The bottom line is that we must do what we need to do because we want the perks that come with the job. We make a lot of money and have relative autonomy concerning what we do, and there is little downside risk or exposure. In the end, we garner a tremendous amount of public admiration—and some envy, too. Is it really too much to ask to make reasonable accommodations for access to our services?
Fortunately, we don’t engage in brain surgery or deal with life and death issues. Essentially, we jockey teeth from here to there and create pleasing oral appearances. As I read through the aforementioned information, I was struck by its simplicity. It says that your hearing-impaired patients have a right to be able to communicate with you regarding their treatment. Is there anything more basic than that? For the last 15 years, I have been advocating through this column the importance of good doctor-patient communications. Our association, through its risk management courses and newsletter publications, has been doing the same thing. The number 1 risk management tool is establishing good patient rapport, and that is accomplished only with good communications.
From where I sit, if you can’t explain what the patient’s problem is and how you want to correct it using anything other than fourth-grade language, you are not communicating effectively (okay, for those of you practicing in really upscale areas, we can bump it up to the sixth grade). Once you learn to really communicate, mom will almost always be the interpreter for the minor patient. Might you have to get an interpreter for adult patients? My experience has been that they often bring their own. If they don’t, okay, I’ll pay the freight. Like the statute says, it’s merely an overhead factor that should be built into the cost of doing business. Once you consider the tax credits that can be applied, it’s not so bad. For the most part, as an orthodontist, I’m looking at my patients and their parents while I talk to them. We have it good. You can’t say that about proctologists.