Sincerely Yours,

813

February 17, 2000

The Honorable Gordon H. Smith
United States Senator
One World Trade Center
121 SW Salmon Street
Suite 1250
Portland, Oregon 97204

Dear Senator Smith:

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, xxxxx x. x. xxxxxx. The Department recently successfully mediated this matter.

Xx. xxxxxx asked how the United States initiates litigation under title III of the Americans with Disabilities Act. The United States may initiate litigation if there is reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of discrimination or any person or group of persons has been discriminated against and the action raises a matter of public importance. Prior to filing any litigation, it is the practice of the Department of Justice to notify opposing parties, to set forth the basis upon which we believe there is a violation or violations of the ADA, and to encourage resolution without litigation.

The Civil Rights Division is also committed to the active use of mediation in appropriate cases, and we fund an extensive mediation program for new complaints that are not appropriate for litigation or that appear to be relatively uncomplicated and likely to resolve quickly. That program is not used when the Department first becomes involved in a case through a request to intervene in ongoing litigation, as in this case. The matters in dispute in this case were resolved successfully by alternative dispute resolution, as part of the litigation process. In each case, we consider whether the matter is an appropriate one for mediation. Of course, Division practice will at times be controlled by rules of federal appellate and district courts and mediation programs operated by the courts. When a litigant or potential litigant makes a request for mediation, a Division manager reviews the case and determines whether the case should be referred to mediation.

In this case, private counsel to the plaintiffs contacted the Assistant U.S. Attorney and an attorney from the Civil Rights Division about then-ongoing civil litigation. The Assistant U.S. Attorney 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 negotiated and 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.

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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.