The Department of Justice, the federal agency charged with enforcing the law under the Americans with Disabilities Act (ADA), created regulations interpreting “effective communications” for hospitals. In the ADA and Section 1557 of the Affordable Care Act, covered entities must provide communication for patients, family members, and visitors who are deaf or hard of hearing using auxiliary aids and services.¹ Auxiliary aids and services include equipment or services such as qualified sign language interpreters, assistive listening devices, note-takers, written materials, television decoders, closed caption decoders, and real-time captioning.² Since people who are deaf or hard of hearing use various ways to communicate, the method provided will vary depending on the abilities of the individual, their preferences for communication, and the complexity and nature of the communications required.³ A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. A patient cannot be charged for the provision of these services.
A previously published “Case of the Month” featured a case involving Mr. Crane, a profoundly deaf individual who communicates using American Sign Language (ASL) and who filed a lawsuit against a hospital for failure to provide a sign language interpreter to effectively communicate during an involuntary commitment evaluation. Mr. Crane suffered from chronic depressive and anxiety disorders. In July 2011, police responded to a call that Mr. Crane was suicidal and transported him to Palmetto General Hospital where he was treated for alcohol intoxication. Mr. Crane reported that while at the hospital, he repeatedly requested a sign language interpreter but was not provided with one. Mr. Crane was evaluated by a psychiatrist for possible involuntary commitment for psychiatric care. The psychiatrist communicated with Mr. Crane through written notes and limited sign language skills. Although the psychiatrist determined that Mr. Crane was not a threat to himself or others, he remained in the hospital for two more days. It was not until his day of discharge that an ASL interpreter was provided to assist the psychiatrist in communication with Mr. Crane.
In the Crane case, it was not a question whether the patient received the correct diagnosis, or medical treatment, but that he was denied the ability to understand the entire treatment and communicate his medical information to the provider. Was Mr. Crane provided the same medically relevant information as a hearing person? For many persons in the deaf population, English is not their primary language; American Sign Language is. The deaf person’s English comprehension may be at the elementary school level.4 Because of the complexity of medical information being provided by caregivers, were handwritten notes the most efficient mode of communication? A qualified ASL interpreter is trained with a specialized “vocabulary” to communicate expressively and receptively. The patient has a right to information about their medical situation, in terms and in a language they can understand, and to be allowed to ask questions for clarification or for more information. Mr. Crane was denied this opportunity and deprived of an equal opportunity to fully participate in his medical care.
A deaf patient schedules an appointment to be seen and informs the office that they will need an interpreter to be part of that visit. What is that physician’s obligation to the patient? Physician offices are considered “public accommodations” under Title III of the ADA and are required to provide auxiliary aids and services for their appointments.
Are written notes an effective communication exchange with patients? In some situations, perhaps with a longstanding patient, physicians may be able to effectively communicate with a patient using a notepad or whiteboard. When considering written exchanges, be cognizant of the nature of the patient’s visit; the complexity of the communication involved; the patient’s ability to read and respond effectively in writing; and whether this is an emergent situation.
The ADA does not require the physician to use and accept the patient’s personal interpreter. If an interpreter is required, and the physician can obtain a qualified interpreter at a lesser cost, the physician may employ the interpreter, despite the patient’s preference for an interpreter with whom the patient has an established relationship.5 Like with other language interpreters, it is not appropriate to ask a family member, or other companion, to interpret for the patient because the situation may be too private, and that person may not have the appropriate skills for that encounter. Do physicians have to provide an in-person ASL interpreter? If the patient insists that the physician provide an ASL interpreter, then it would be best to comply. Physicians and medical groups may be liable to private litigants under the ADA for failing to provide hearing impaired patients with requested sign language interpreters.6
There are some instances where the ADA allows for exceptions to the provision of auxiliary aids and services, such as an interpreter, for physician offices if providing a particular service would result in “an undue burden” on the physician’s overall practice.7 This is most often acceptable to very small practices in a poor financial standing. However, the physician must provide an alternative aid or service that ensures to the maximum extent feasible that the deaf or hard of hearing patient will be able to receive the same services as non-disabled patients.8
The United States Attorney’s Office (USAO) for the Central District of California investigated a physician under Title III of the ADA for a complaint filed alleging that the physician failed to provide auxiliary aids and services to a patient who was deaf, and that the patient was told that it was her insurance provider’s responsibility to provide such services.9 No appropriate auxiliary aids or services were provided for the deaf patient for appointments from 2016 to 2018. The ADA requires providers, not patients, to ensure effective communication for people who are deaf or hard of hearing. The case was settled in February of 2020 with an agreement rendered.
Situations such as these may be few, but physicians need to know their options so not to be caught off guard when a patient calls for an appointment. When asked by a patient, or prospective patient for translation services, inquire with the patient as to what type of auxiliary aid or service will be needed for the visit to ensure effective communication and a more positive physician-patient relationship.
What should you do?
If the patient insists that the physician provide an ASL interpreter, it is best to comply.
Review your contracts with health plans and insurers to ascertain whether the contract addresses the issue of financial responsibility for interpreter services.
Some private insurance companies now provide in-person interpreter services.
Sign language interpreter services are a benefit to facilitate effective communication with deaf or hearing-impaired Medi-Cal recipients. Sign language interpreter services are reimbursable only to providers or provider groups employing fewer than 15 people.10
Consider video remote interpreting (VRI) services** to assist with interpretation office needs. (VRI shall not be used as a substitute for an onsite interpreter, or when it is not providing effective communication.)
**Available through CAP’s Marketplace
Deborah Kichler is a Senior Risk Management and Patient Safety Specialist for CAP. Questions or comments related to this article should be directed to DKichler@CAPphysicians.com.
¹Access to Health Care for People with Disabilities under the ADA and Other Civil Rights Laws. May 1, 2021, p. 7.
https://www.disabilityrightsca.org/publications/access-to-health-care-f…
²45 C.F.R. 92.102(b) for Section 1557. See C.F.R. § 35.104 for Title II. See C.F.R. § 36.303 for Title III.
³Access to Health Care for People with Disabilities under the ADA and Other Civil Rights Laws. May 1, 2021, p. 7.
https://www.disabilityrightsca.org/publications/access-to-health-care-f…
42018 Deaf Rights Update: Are Doctors or Hospitals Required to Provide Interpreters for Deaf Patients and
what are the penalties for not doing so? Matthew Dietz. https://www.justdigit.org/wp-content/uploads/2018/08/Crane-edition.pdf
5California Medical Association Health Law Library. The California Physician’s Legal Handbook, Document #6005,
Sign Language Interpreter, February 2022, p. 2
6California Medical Association Health Law Library. The California Physician’s Legal Handbook, Document #6005,
Sign Language Interpreter, February 2022, p. 4
728 C.F.R. § 36.303.
8California Medical Association Health Law Library. The California Physician’s Legal Handbook, Document #6005,
Sign Language Interpreter, February 2022, p. 4
9Settlement Agreement Under the Americans with Disabilities Act between the United States of America and
Dr. Javier Rios USAO # 2017V02900, DJ # 202-12C-633
10https://files.medi-cal.ca.gov/pubsdoco/publications/masters-mtp/part2/s… Sign Language Interpretation (sign) (ca.gov)