Many physicians are unaware of their legal obligations with regard to communicating with deaf and hearing-impaired patients. Under Title III of the Americans with Disabilities Act (ADA), private health care practices are required to provide reasonable accommodations to ensure effective communication with patients who have communication disabilities, including those who are deaf or hearing impaired. Because a practice’s failure to comply with the ADA can result in significant penalties, it is imperative that private health care providers understand ADA Title III requirements.
In addition to being subject to civil monetary fines imposed by federal regulatory agencies, medical practices that participate in federal health programs such as Medicare or Medicaid can be sued in private lawsuits for failure to comply with ADA requirements. Because a successful plaintiff can recover attorney’s fees under the ADA, attorneys have an added incentive to take on such cases. As a result, ADA lawsuits against physicians and hospitals have become more common in recent years.
Simply put, the ADA requires medical practices to provide appropriate auxiliary aids and services to ensure that communication with patients who are deaf or hearing impaired is as effective as communication with others. This duty extends not only to the patient, but also to family members, friends and companions of the patient. Auxiliary aids and services include qualified interpreters, assistive listening devices, note takers, written materials, computer-aided transcription devices, and telecommunication devices. A “qualified” interpreter means someone who is “able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.”
The ADA does not require the provider to honor the patient’s choice of auxiliary aid. The provider may make the ultimate decision as to which auxiliary aid or service is to be used in a particular situation, as long as the result is effective communication with the deaf or hearing-impaired individual. According to the Department of Justice (DOJ), the agency charged with enforcing the ADA, “the key to deciding what aid or service is needed to communicate effectively is to consider the nature, length, complexity, and context of the communication as well as the person’s normal method(s) of communication.” Reasoning that the hearing-impaired individual knows best which auxiliary aid or service will achieve effective communication with the health care provider, the DOJ recommends that the provider consult with the individual prior to determining which aid or service will be used.
Although not required to honor a patient’s request for an interpreter, a health care provider should carefully consider any decision to refuse such a request. Courts have found that the determination of whether an interpreter is necessary for effective communication depends heavily on the specific circumstances of the encounter. The DOJ suggests that an interpreter will generally be needed where the information being communicated is extensive or complex, such as when taking the medical history of a patient who uses sign language, discussing a serious diagnosis and its treatment options, or obtaining informed consent and permission for treatment.
Many medical practices regularly rely on written notes or interpreting by companions when communicating with hearing-impaired patients. Exchanging notes may be an acceptable method of communication regarding simple matters, but other aids will likely be needed for more complex subjects. In addition, if the individual has limited ability to read or understand English, written notes would not be an appropriate choice. Use of accompanying adults as interpreters is not advisable, as these persons often lack the impartiality and specialized vocabulary needed to interpret effectively and accurately in a health care setting. In addition, using family members or friends as interpreters may raise patient confidentiality issues. The DOJ warns that minor children accompanying a person who uses sign language may only be used to interpret in an emergency situation in which no qualified interpreter is available.
The DOJ suggests that an interpreter will generally be needed where the information being communicated is extensive or complex, such as when taking the medical history of a patient who uses sign language, discussing a serious diagnosis and its treatment options, or obtaining informed consent and permission for treatment.
The responsibility to provide auxiliary aids and services falls on the health care provider. The provider may not require a patient to bring an interpreter with them. In addition, the provider must pay for the interpreting services, or any other auxiliary aid or service, regardless of whether that cost exceeds the amount that the provider will receive for the services rendered. Although there is an exception if use of a particular auxiliary aid will result in an “undue burden” on the practice, this burden is determined based on the practice’s overall resources, rather than a comparison between the cost of the interpreter or other aid and the medical fees paid by the patient. In addition, the DOJ advises that the entity is still expected to provide another effective aid or service, if possible, which will not result in an undue burden. Health care practices may require reasonable advance notice from people requesting aids or services, but may not impose excessive advance notice requirements and must honor “walk-in” requests for aids and services to the extent possible.
The ADA does not require that a medical practice maintain written policies and procedures regarding accommodations for disabled individuals, but it is highly recommended that such policies be developed and implemented before a problem arises. Such policies can provide strong evidence of a provider’s compliance with the ADA when a plaintiff brings a claim alleging failure to ensure effective communication. Policies should address: procedures for evaluating a patient’s communication needs and determining what auxiliary aid or service is appropriate in a particular circumstance; procedures for securing auxiliary aids and services; notification to patients regarding the availability of auxiliary aids and any advance notice requirements; and proper documentation of the practice’s accommodation efforts in the patient’s medical record. Finally, proper training of office staff is essential to the ongoing implementation of these policies.