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The articles in The Legal Doctor do not constitute legal advice and are presented for educational purposes only. The information contained in The Legal Doctor should not be taken as a substitute for legal advice, which should be obtained from personal legal counsel. The information presented in these articles is based upon current Florida and federal law and is subject to change based on changes in Florida and federal law. The FMA hopes that the information provided here and in its other publications continues to assist physicians in answering many of their most common legal questions allowing them to treat patients, instead of addressing legal concerns. ACCOMMODATING HEARING-IMPAIRED PATIENTS According to the Americans with Disabilities Act, which became law in 1990, a physician’s office is considered a “public accommodation”, and therefore must modify its policies and practices which discriminate or exclude disabled persons. 42 U.S.C. §12181(7); 28 CFR §36.104. Specifically, the ADA prohibits physicians from refusing to treat a hearing impaired person because of the handicap, and requires the physician to provide such auxiliary aids and services necessary “to communicate effectively with its customers, clients, patients or participants who have disabilities affecting hearing, vision, or speech.” 56 Fed. Reg. 35553 (July 26, 1991). In addition, a physician may not charge the patient for the cost of providing such necessary aids and services. 28 CFR §36.301(c). The law does not, however, absolutely require physicians to provide an interpreter for every hearing impaired person. The regulations adopted pursuant to the ADA require that a physician’s office “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 CFR §36.303(c). The communication must be as effective as communication with persons without a hearing impairment. The regulations define “auxiliary aids and services” to include qualified interpreters, note takers, written materials or “other effective methods of making aurally delivered materials available to individuals with hearing impairments.” 28 CFR §36.303(b)(1).comments to the ADA regulations make it clear that the auxiliary aid requirement is a flexible one. A physician is not required to hire a qualified interpreter in every case. A physician can choose among various alternatives “as long as the result is effective communication.” The physician does not have to give primary consideration to the request of the person with the hearing impairment. The physician, however, should consult with the person before providing a specific auxiliary aid or service. This will allow the physician to make an independent determination as to what type of auxiliary aid is necessary. 56 FR 35544, 35567 (July 26, 1991). situations (for example, lengthy or complex health matters, including major surgery) require the use of a qualified interpreter to ensure “effective communication.” In addition, if the hearing impaired patient does not understand English or cannot read and write, the use of an interpreter will be necessary to ensure “effective communication.” Although the regulations do not define what constitutes lengthy or complex health matters, the ADA Title III Technical Assistance Manual provides several illustrations of situations where an interpreter may be required. For example: ILLUSTRATION 1: H goes to his doctor for a bi-weekly check-up, during which the nurse records blood pressure and weight. Exchanging notes and using gestures are likely to provide an means of communication at this type of check-up. BUT: Upon experiencing symptoms of a mild stroke, H returns to his doctor for a thorough effective examination and battery of tests and requests that an interpreter be provided. H's doctor should
arrange for the services of a qualified interpreter, as an interpreter is likely to be necessary for effective communication with H, given the length and complexity of the communication involved. ILLUSTRATION 2: A patient who is deaf brings his own sign language interpreter for an office visit without prior consultation and bills the physician for the cost of the interpreter. The physician is not obligated to comply with the unilateral determination by the patient that an interpreter is necessary. The physician must be given an opportunity to consult with the patient and make an independent assessment of what type of auxiliary aid, if any, is necessary to ensure effective communication. If the patient believes that the physician's decision will not lead to effective communication, then the patient may challenge that decision under title III by initiating litigation or filing a complaint with the Department of Justice (see III-8.0000). In those situations where an interpreter may be required, the physician must provide a qualified interpreter unless the physician can demonstrate that it would result in an “undue burden” on his or her practice. In other instances, depending on the facts of the particular case, the physician may use a notepad or a computer terminal to communicate with the person with the hearing impairment. The regulations define “undue burden” to mean “significant difficulty or expense.” 28 CFR §36.303(a). It is generally accepted that the cost of accommodating one or two hearing impaired patients does not constitute an undue burden of the physician, although a significant number of hearing impaired patients could place such a burden on the physician’s practice. If the physician reasonably believes that the current volume of hearing impaired patients requiring interpreters significantly and negatively affects the practice, the physician may refuse further hearing impaired patients. If an interpreter is required, the physician must ensure that the interpreter is qualified. An interpreter is “qualified” if the interpreter is one “who is able to interpret effectively, accurately and impartially, both receptively and expressly, using any necessary specialized vocabulary.” 28 CFR§36.104. As a result, the physician may choose to use a nurse who is fluent in sign language instead of hiring an interpreter. In that case, however, the physician must ensure that the nurse is fluent in the same sign language used by the person with a hearing impairment. If not, the use of the nurse may not be considered to be “effective communication.” The ADA provides various means of enforcing the law. First, the law provides for private causes of action, including injunctive relief, by any person who is subjected to discrimination in violation of the ADA. 42 U.S.C. §12188(a)(1). The ADA also provides that the attorney general may investigate any potential violation of the ADA, and, if it has reasonable cause to believe that a violation has occurred, may bring a civil action in federal court. 42 U.S.C. §12188(b)(1). If the court finds that a violation of the ADA has occurred, it may grant injunctive relief, award monetary relief, and award a civil penalty in an amount not exceeding $50,000 for a first violation, and $100,000 for any subsequent violation. 42 U.S.C. §12188(b)(2). Finally, the ADA provides that the court may award the prevailing party attorney’s fees and costs. 42 U.S.C. §12205. To assist businesses with complying with the ADA, Section 44 of the IRS Code allows a tax credit for small businesses and Section 190 of the IRS Code allows a tax deduction for all businesses. The tax credit is available to businesses that have total revenues of $1,000,000.00 or less in the previous tax year or 30 or fewer full time employees. This credit can cover 50% of the eligible access expenditures in a year up to $10,250.00 (maximum credit of $5,000.00). The tax credit can be used to offset the cost of undertaking barrier removal and alterations to improve accessibility; providing accessible formats such as braille, large print or audiotape; making available a sign language interpreter or a reader for customers or employees, and for purchasing