Americans with Disabilities Act Technical Assistance Letters

801

September 8, 1999

The Honorable Joseph I. Lieberman

United States Senate

Washington, D.C. 20510-0703

Dear Senator Lieberman:

This is in response to your inquiry on behalf of your constituent, Dr. xxxx xx xxxx of West Hartford, Connecticut.

Dr. xxxx is a physician who is concerned that the Americans with Disabilities Act of 1990 (ADA) requires him to provide a sign language interpreter for patients needing the service and further expects him to absorb the costs associated with the interpreter services.

We understand Dr. xxxxxx concern, but we believe that he may not be aware of the flexibility provided to him under the ADA. Title III of the ADA was enacted to ensure that people with disabilities are not excluded from receiving the benefits and services provided by covered entities, including physicians. However, in enacting title III, Congress carefully struck a balance between the rights of people with disabilities to participate fully in activities of daily life and the legitimate economic needs of the service providers.

The ADA does require physicians to ensure effective communication with patients (and, for pediatric patients, with their parents or guardians.) When one of these individuals has a disability that affects communication (e.g., a hearing impairment), the ADA may require a physician to provide a sign language interpreter or other appropriate auxiliary aid to ensure effective communication, unless the physician can prove that providing the auxiliary aid will fundamentally alter the service or benefit that the physician is providing or result in an undue burden.

Ensuring effective communication does not necessarily require a physician to provide a sign language interpreter each time that a patient requests one. The physician has the right to select the auxiliary aid that will be provided and also the obligation to ensure that the selected method of communication is effective. In making this determination, the physician should consult with the patient to learn what auxiliary aids may be effective in the specific circumstances. For example, if a patient can communicate effectively in writing, then written communication through the exchange of notes or using a computer to facilitate conversation may be effective when a physician is explaining a simple procedure. However, if the information to be conveyed is lengthy or complex, or the patient has difficulty communicating in writing, then the use of written notes may be ineffective. The use of an interpreter may be the only effective form of communication. Thus, Dr. xxxx may not need to provide an interpreter for a routine office visit where paper-and-pen communication is sufficient to provide effective communication between him and his patient.

If an interpreter is necessary to provide effective communication, a physician must provide the interpreter without charge to the person with a disability unless it is an undue burden. The term "undue burden" means "significant difficulty or expense." Dr. xxxx states he was billed for two hours of interpreting services (apparently the "minimum" charges billed by the interpreter service) at a total fee of $60 even though the patient appointment lasted only 15 minutes. Thus, Dr. xxxx might be able to argue that these charges are within the "undue burden" standard as a "significant expense." Such an evaluation, however, is not based solely on a comparison of the interpreter costs to the revenue generated by the office visit at which the interpreter is present. Instead, the interpreting costs are considered in relationship to the overall financial resources of the practice and other mitigating factors such as the ability to spread costs throughout the general clientele and the availability of tax credits.

The Internal Revenue Code permits eligible small businesses to receive a tax credit for certain costs of ADA compliance. 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. Further information on the tax credit can be obtained from a local Internal Revenue Service office, or by contacting the Office of Chief Counsel, Internal Revenue Service. The enclosed booklet also provides general information about the tax credit.

I hope this information will be helpful to you. Please do not hesitate to contact the Department if we can be of assistance in other matters.

Sincerely,

Bill Lann Lee

Acting Assistant

Attorney General

Civil Rights Division

Enclosure