Sincerely,

812

January 21, 2000

The Honorable Ron Wyden
United States Senator
700 NE Multnomah Street
Suite 450
Portland, Oregon 97232

Dear Senator Wyden:

This letter is in response to your inquiry regarding the case, Drew, et. al. v. Merrill and Perinatal Associates, P.C., CA No. 99-810, on behalf of your constituent, Dr. Patrick A. Merrill. The Department recently successfully mediated this matter.

Questions raised by Dr. Merrill are: 1) whether the Americans with Disabilities Act (ADA) specifically encourages the use of alternative dispute resolution (ADR); 2) how the Department of Justice determines whether a case is appropriate for ADR; 3) whether the monetary relief agreed to in the consent decree made sense in light of previous settlement agreements; and 4) whether a physician should be given an opportunity to determine if "effective communication" can occur.

When Congress enacted the Americans with Disabilities Act, it specifically encouraged the use of alternative dispute resolution (ADR). Section 513 of the ADA provides:

Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration is encouraged to resolve disputes arising under . . . [the ADA]. 42 U.S.C. ァ 12212. The Department of Justice restated this provision in section 36.506 of the enclosed title III regulation.

The Division is committed to the active use of mediation and other ADR techniques in appropriate cases. In each case we consider whether the case is an appropriate one for ADR. Of course, Division practice will at times be controlled by rules of federal appellate and district courts. When a litigant or potential litigant makes a request for ADR, a Division manager will review the case and determine whether the case should or should not be subject to ADR.

Before the Department initiates litigation under title III of the ADA, it is our practice to notify opposing parties to set forth the basis upon which we believe there is a violation of the ADA and to encourage resolution. In this case, the Assistant U.S. Attorney and an attorney from the Civil Rights Division spoke to Dr. Merrill's counsel, and exchanged correspondence explaining the ADA requirements for effective communication and our intent to participate in the ongoing litigation. In fact, the Department delayed the filing of a Complaint in this matter because the parties continued to work toward settlement through the attorneys. As a result of those conversations, we were able to resolve a number of issues including agreement on a policy on sign language interpreters and staff training. We were not able to resolve all the issues in this case. When it appeared that the parties had gone as far as possible without an outside mediator, the defendants' attorneys recommended formal mediation. We readily agreed. The parties agreed upon a mediator and went to mediation to resolve the remaining issues in the case.

The monetary relief of $25,000 was agreed to by both the private plaintiffs and defendants in this case. The proper amount of damages is a very fact specific determination and in this case the Department concurred in the final amount. This amount was not excessive given the circumstances of the case. Prior to the negotiations, we had provided Dr. Merrill's counsel with examples of recent damage awards in other cases handled by the Department. For example, in a consent decree with 14 hospitals in the State of Connecticut concerning the provision of sign language interpreters, the hospitals paid $333,000 in compensatory damages to 49 persons with individual amounts ranging from $1,000 to $25,000.

Finally, regarding how a physician can determine how to ensure effective communication, title III requires physicians to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. The purpose of the requirement is to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.

In determining what constitutes an effective auxiliary aid or service, a physician must consider, among other things, the length and complexity of the communication involved. During some doctor's visits a note pad and written materials may be sufficient to permit effective communication, for instance, when a physician is explaining possible side effects resulting from a flu shot. During other visits, however, the use of handwritten notes may be extremely slow or cumbersome (e.g., where information to be conveyed is important, lengthy, or complex). In these situations, the use of an interpreter may be the only effective form of communication. The title III regulation requires the doctor to decide what type of auxiliary aid to provide, but the doctor is first required to consult with the client or patient and determine what auxiliary aids will actually provide effective communication.

While the nature of medical services is considered one factor in determining the effective means of communication, the focus should be not only on the nature of the services, but also on the type of communication among the physician, patient, and companion. The fact that an office visit is characterized as routine does not necessarily negate the need for interpreting services. For instance, an interpreter may be required if a note pad does not facilitate effective communication among the physician, patient and others.

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

Bill Lann Lee
Acting Assistant Attorney General
Civil Rights Division


Enclosure

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Updated August 6, 2015

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