Healthcare Professionals Q&A

adafilledThe Americans with Disabilities Act Federal Law (Q&A)

 

Q. When does a health care professional have to provide a sign language interpreter?

A. A health care professional must provide a qualified interpreter if: (1) an interpreter is necessary to ensure effective communication between the deaf and the health care professional, and (2) the deaf has asked the health care professional to provide an interpreter. However, there are two exceptions to this general rule mentioned later.

Q. When is an interpreter necessary to ensure effective communication?

A. The answer to this question depends upon the length and complexity of the conversation the deaf individual will be having with the health care professional. For example, if there will be a discussion whether to have major surgery, an interpreter would certainly be necessary to ensure effective communication. On the other hand, if the deaf will be visiting the doctor’s office solely for a simple blood test, an interpreter might not be necessary. Instead, you may be able to communicate effectively by, for example, writing notes or taking turns at a computer terminal if written English is clearly understood.

Q. Is an interpreter required only in the most extreme situations, such as when a doctor and patient will be discussing whether the patient should have surgery?

A. No. A wide range of other situations may also require an interpreter to ensure effective communication. For example, during a routine physical, the communication may be sufficiently lengthy and complex to require an interpreter. In a psychotherapy session, the communication is sufficiently lengthy and complex to require an interpreter. The U.S. Department of Justice gives the following example in its technical assistance manual to explain when an interpreter is required:

H goes to his doctor for a bi-weekly check-up, during which the nurse records H’s blood pressure and weight. Exchanging notes and using gestures are likely to provide an effective 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 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.

Q. If the patient is a minor child who can hear, does the health care professional have to provide an interpreter for a parent who is deaf?

A. Yes, if (1) an interpreter is necessary to ensure effective communication between the health care professional and parent, and (2) the parent has asked the health care professional to provide an interpreter. For example, an interpreter would be required if a parent who is deaf will be discussing with a doctor whether the parent’s child should have surgery, discussion of child’s diagnosis and treatment.

Q. What are the two exceptions to the general rule that a health care professional must provide an interpreter when necessary to ensure effective communication?

A. First, a health care professional does not have to provide an interpreter if doing so would result in a “fundamental alteration” of the professional’s services. However, this exception will probably never apply because a sign language interpreter would not result in a fundamental alteration of a health care professional’s services.

Second, a health care professional does not have to provide an interpreter if doing so would result in an “undue burden, i.e., significant difficulty or expense.” However, in determining whether providing an interpreter would result in an “undue burden,” the professional must consider: (1) the cost of the interpreter and (2) the professional’s overall financial resources. The professional may not refuse to provide an interpreter because the cost of the interpreter exceeds the professional’s fee for the office visit.
Providing an interpreter will hardly ever result in an “undue burden” on a doctor because the cost of an interpreter will likely be insignificant when compared to the doctor’s overall financial resources. The office may also use this service as a business tax write off.

Q. Who has to pay for the interpreter?

A. The health care professional. A health care professional may not charge a person who is deaf or the person’s insurance company for the cost of providing an interpreter. The U.S Department of Justice gives the following example in its technical assistance manual:
In order to ensure effective communication with a deaf patient during an office visit, a doctor arranges for the services of a sign language interpreter. The cost of the interpreter’s services must be absorbed by the doctor.

Q. If the cost of an interpreter for an office visit exceeds the fee for that visit, can the health care professional charge the person who is deaf for providing an interpreter?

A. No. The health care professional still must pay for the interpreter. Health care professionals, like lawyers, accountants, and other public accommodations covered by the ADA, are expected to treat the cost of an interpreter as part of the overhead cost of operating a business.

Q. If an interpreter is necessary to ensure effective communication, the health care professional must provide a “qualified interpreter.” Who is a “qualified interpreter”?

A. A qualified interpreter is an interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.

Q. Can a health care professional use a staff member who signs “pretty well” as an interpreter for meetings with individuals who use sign language to communicate?

A. No, unless the person is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary. The Department of Justice explains in the technical assistance manual:
Signing and interpreting are not the same thing. Being able to sign does not mean that a person can process spoken communication into the proper signs, nor does it mean that he or she possesses the proper skills to observe someone signing and change their signed or finger-spelled communication into spoken words. The interpreter must be able to interpret both receptively and expressively.

Q. If a family member or friend is able to interpret, is that person a “qualified interpreter”?

The Department of Justice has answered this question by stating the following in Appendix B to its ADA regulations:
In certain circumstances, notwithstanding that the family member or friend is able to interpret or is a certified interpreter, the family member or friend may not be qualified to render the necessary interpretation because of factors such as emotional or personal involvement or considerations of confidentiality that may adversely affect the ability to interpret “effectively, accurately, and impartially.”
Thus, if a health care professional asks a family member or friend of a patient who is deaf to interpret, and the patient does not want that person to interpret, the patient should ask the professional to provide someone else.

Q. What can I do to make sure that a health care professional provides an interpreter?

A. At the time you schedule the appointment, tell the professional’s office that you are deaf and ask that the professional provide an interpreter. Because it may take the professional several days to get an interpreter, make sure to request an interpreter at the time you make the appointment. Also, we suggest that you write a letter to the health care professional requesting an interpreter. Although this is not required under the ADA, it will establish evidence of your request. (Attached to this guide is a sample letter requesting an interpreter.)

Q. What can I do if the health care professional refuses to provide an interpreter?

A. First try to explain to the health care professional why you need an interpreter to ensure that the communication between you and the health care professional will be effective. If the professional says that you can read his or her lips, explain why lipreading is not effective. For example, explain that many sounds, such as T and D, look identical on the lips; and that lipreading may be particularly difficult in the medical setting because of complex medical terminology. If the professional says that you can communicate by writing notes, explain why this method would not be effective. If the health care professional still refuses to provide an interpreter, you may choose to file a complaint with the U.S. Department of Justice and the Office for Civil Rights.

1.) To file a written complaint with the U.S. Department of Justice. Such a complaint should be a letter that contains the following information: (a) your name and address; (b) a statement that you have a hearing impairment and need a sign language interpreter to communicate effectively with others; (c) the name and address of the health care professional; (d) an explanation of what you did to try to get the professional to provide an interpreter; (e) an explanation of what you were going to discuss with the doctor (such as risks of surgery, risks and benefits of medications, etc.); (f) a statement that the professional refused to provide an interpreter; (g) the date on which the professional refused to provide the interpreter; (h) any other information that you believe would be helpful in understanding your complaint; (i) a statement that the professional violated the Americans With Disabilities Act; and (j) a request that the Department of Justice investigate your complaint. Although neither the ADA nor the regulations of the Department of Justice contain a deadline for filing a complaint, you should do so as soon as possible.

The letter should be sent to the following address:
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue NW
Washington, DC. 20530

(2) File a written complaint with the Office for Civil Rights of the U.S. Department of Health and Human Services. This Office enforces a federal law called the Rehabilitation Act. Section 504 of that law prohibits recipients of federal financial assistance from discriminating on the basis of disability. Since many health care professionals receive federal financial assistance in the form of Medicare or Medicaid reimbursement, they are prohibited by Section 504 from discriminating on the basis of disability. There is a deadline for filing a complaint with the Office for Civil Rights of the U.S. Department of Health and Human Services. The complaint must be filed “not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the responsible Department official or his designee.” (Emphasis added.)

To file such a complaint, you can download a “Discrimination Complaint Form“.

(3) File a lawsuit against the health care professional. To file a lawsuit, you should contact an attorney. The deadline for filing a lawsuit claiming violations of the ADA and/or the Rehabilitation Act may be as short as one year or may be two years. Because the law is unclear on the deadline, the safest course of action is to file the lawsuit within one year of the doctor’s refusal to provide an interpreter.

Sample Letter Requesting a Sign Language Interpreter

December 10, 2008

Bonnie Freyer, M.D.
31315 North Country Club Road
Tucson, AZ 85718

Re: Linda Murray

Dear Dr. Freyer:
I have an appointment with you on June 1, 1997 to establish myself as a new patient with your practice and provide you my medical history. Because I am deaf, I will need a sign language interpreter to communicate effectively with you. I therefore request that you provide an interpreter during my appointment. Thank you.

Sincerely,
Linda Murray

Cited Resources:
The Americans with Disability Act
U.S. Department of Health and Human Services
Arizona Center for Disability Law

Jessica Harris Interpreting Services, Inc. provides only Qualified/Certified Interpreters to Florida. When you decide to work with a Professional Interpreter, this shows commitment to quality service. An understanding that writing back and forth or using a signer with no credentials can lead to miscommunication, conflict of interest, serious liability, confidentiality issues, and loss of precious time. We look forward to working with you! Feel free to contact us with any questions and/or concerns at JHarris@JHinterpretingservices.com or 727-271-0160.