Please note that this is only a small extraction and interpretation of information from the ADA Act. Please consult a qualified legal representative when making decisions that may affect your business and your compliance with current laws. Please read our Terms of Use.

The Americans with Disabilities Act

Communication Accommodations Project

A Resource for Voluntary Compliance with the ADA

A JOINT PROGRAM OF

The American Foundation for the Blind

Governmental Relations Department
1615 M. Street N.W., Suite 250
Washington, D.C. 20036
(202) 223-0101

National Center for Law and Deafness

Gallaudet University
800 Florida Avenue, N.E.
Washington, D.C. 20002
(202) 651-5343

MEMORANDUM ON THE OBLIGATIONS OF LAWYERS TO PROVIDE SIGN LANGUAGE INTERPRETERS TO DEAF CLIENTS UNDER THE AMERICANS WITH DISABILITIES ACT

Thank you for your inquiry regarding your obligation, pursuant to the Americans with Disabilities Act, to provide sign language interpreting services to deaf clients in your law office.

The Americans with Disabilities Act (ADA) went into effect on January 26, 1991. Title III of the ADA, 42 U.S.C. ¤¤12181 – 12183, provides people with disabilities the right to equal access to public accommodations. Both Title III of the ADA, and the U.S. Department of Justice regulation pursuant to Title III, 28 C.F.R. Part 36, specifically include the offices of lawyers in the definition of public accommodations. 42 U.S.C. ¤12181; 28 C.F.R. ¤36.104.

Under Title III, public accommodations are required to provide auxiliary aids and services, at no charge to the deaf or hard-of-hearing client, to ensure effective communication with deaf and hard-of-hearing people:

A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.

28 C.F.R. V36.303 (c).

A comprehensive list of auxiliary aids and services required by the ADA is set forth in this regulation, and includes for deaf and hard-of-hearing individuals:

…qualified interpreters, note takers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning,telecommunication devices for deaf persons (TDDs), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments.

28 C.F.R. 36.303 (b) (1).

The term qualified interpreter is defined in the regulation to mean:

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

28 C.F.R. 36.104.

The Analysis to this regulation makes it clear that Congress, as well as the Department of Justice, “expects that public accommodation(s) will consult with the individual with a disability before providing a particular auxiliary aid or service.” 56 Fed. Reg. at 35567, quoting H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 107 (1990). The Department of Justice further states in its Analysis:

It is not difficult to imagine a wide range of communications involving areas such as health, legal matters, and finances that would be sufficiently lengthy or complex to require an interpreter for effective communication.

56 Fed. Reg. at 35567 (emphasis added).

The Department of justice has also noted in its Analysis:

The Department wishes to emphasize that public accommodations must take steps necessary to ensure that an individual with a disability will not be excluded, denied services, segregated or otherwise treated differently from other individuals because of the use of inappropriate or ineffective auxiliary aids. In those situations requiring an interpreter, the public accommodations must secure the services of a qualified interpreter, unless an undue burden would result.

56 Fed. Reg. at 35567 (emphasis added).

It is clear from the Act, the Regulation and is Analysis, that important communications, such as those with an attorney, will require the provision of a qualified sign language interpreter to ensure effective communication with the deaf client. We hope that this information will be of assistance. Please let us know if there are any questions.

Please note that this is only a small extraction and interpretation of information from the ADA Act. Please consult a qualified legal representative when making decisions that may affect your business and your compliance with current laws. Please read our Terms of Use.

The Americans with Disabilities Act

Communication Accommodations Project

A Resource for Voluntary Compliance with the ADA

A JOINT PROGRAM OF

The American Foundation for the Blind

Governmental Relations Department
1615 M. Street N.W., Suite 250
Washington, D.C. 20036
(202) 223-0101

National Center for Law and Deafness

Gallaudet University
800 Florida Avenue, N.E.
Washington, D.C. 20002
(202) 651-5343

MEMORANDUM ON THE OBLIGATIONS OF DOCTORS AND OTHER HEALTH CARE PROVIDERS UNDER THE AMERICANS WITH DISABILITIES ACT

Title III of the Americans with disabilities Act (ADA) prohibits discrimination against deaf and hard-of-hearing people in places of public accommodation. Included within the definition of places of public accommodation is any “professional office of a health care provider,” regardless of the size of the office or the number of employees. 28 C.F.R. ¤36.104. The ADA therefore applies to doctors, dentists, psychiatrists and psychologists, hospitals, nursing homes, and health clinics, and all other providers of mental and physical health care.

Places of public accommodation must be accessible to individuals with disabilities. For deaf and hard-of-hearing people, the means that they must remove barriers to communication. Doctors and health care providers must make sure that they can communicate effectively with their deaf patients and clients by providing “auxiliary aids and services” for these individuals:

(c) Effective communication. A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.

28 C.F.R. 36.303.

“Auxiliary aids and services” expressly include qualified interpreters, transcription services, and written materials, as well as the provision of telecommunications devices for the deaf (known as TDDs or text telephones), telephone handset amplifiers, television decoders and telephones compatible with hearing aids.

28 C.F.R. 36.303 (b) (1).

For individuals who use sign language, interpreters are often needed to provide safe and effective medical treatment. Unless a doctor can communicate effectively and accurately with a patient, there is a grave risk of not understanding the patient’s symptoms, misdiagnosing the patient’s problem, and prescribing inadequate or even harmful treatment. Similarly, patients may not understand medical instructions and warnings or prescription guidelines without the provision of an interpreter.

The doctor may not charge the patient for the cost of interpreter service, either directly or by billing the patient’s insurance carrier:

A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids, barrier removal…and reasonable modifications… that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.

28 C.F.R. 36.301 (c).

The Justice Department regulation defines a “qualified interpreter” as follows:

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

28 C.F.R. 36.104. The Justice Department warns that family members and friends may not be able to provide impartial or confidential interpreting in the medical context, even if they are skilled sign language users:

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.’

56 Fed. Reg. 35553 (July 26, 1991).

When there is a dispute between the health care provider and the deaf individual as to the appropriate auxiliary aid, the Justice Department strongly urges the doctor to consult with the deaf person about the effectiveness of a proposed auxiliary aid. It also cautions that complex discussions, such as those about health issues, may require interpreter services if that is the communication method used by the deaf individual:

The Department wishes to emphasize that public accommodations must take steps necessary to ensure that an individual with a disability will not be excluded, denied services, segregated or otherwise treated differently from other individuals because of the use of inappropriate or ineffective auxiliary aids. In those situations requiring an interpreter, the public accommodations must secure the services of a qualified interpreter, unless an undue burden would result.

…It is not difficult to imagine a wide range of communications involving areas such as health, legal matters, and finances that would be sufficiently lengthy or complex as to require an interpreter for effective communication.

56 Fed. Reg. 35566-67 (July 26, 1991). Typical examples of situations in which interpreters should be present are: obtaining a medical history, obtaining informed consent and permission for treatment, explaining diagnoses, treatment and prognosis of an illness, conducting psychotherapy, communicating prior to and after major medical procedures, explaining medication, explaining medical costs and insurance issues, and explaining patient care upon discharge from a medical facility.

 

Please note that this is only a small extraction and interpretation of information from the ADA Act. Please consult a qualified legal representative when making decisions that may affect your business and your compliance with current laws. Please read our Terms of Use.

The Americans with Disabilities Act

Requirements for Public Accommodations

Fact Sheet by the U.S. Department of Justice Civil Rights Division Coordination and Review Section

General

Public accommodations such as restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers, may not discrimination the basis of disability. Private clubs and religious organizations are exempt.

Reasonable changes in policies, practices, and procedures must be made to avoid discrimination.

Auxiliary Aids

Auxiliary aids and services must be provided to individuals with vision or hearing impairments or other individuals with disabilities, unless an undue burden would result.

Physical Barriers

Physical barriers in existing facilities must be removed, if removal is readily achievable. If not, alternative methods of providing the services must be offered, if they are readily achievable.

All new construction in public accommodations, as well as in “commercial facilities” such as office buildings, must be accessible. Elevators are generally not required in buildings under three stories or with fewer than 3000 square feet per floor, unless the building is a shopping center, mall or a professional office of a health care provider.

Alterations must be accessible. When alterations to primary function areas are made, an accessible path of travel to the altered area (and the bathrooms, telephones, and drinking fountains serving that area) must be provided to the extent that the added accessibility costs are not disproportionate to the overall cost of the alterations. Elevators are required as described above.

Entities such as hotels that also offer transportation must generally provide equivalent transportation service to individuals with disabilities. New fixed-route vehicles capable of carrying more than 16 passengers must be accessible.

Remedies

Individuals may bring private lawsuits to obtain court orders to stop discrimination, but money damages cannot be awarded.

Individuals can also file complaints with the Attorney General who may file lawsuits to stop discrimination and obtain money damages and penalties.

For more information on the ADA contact:

U.S. Department of Justice
Civil Rights Division
Coordination and Review Section
P.O. Box 66118
Washington, D.C. 20035-6118
(202) 514-0301 Voice
(202) 514-0381 TTY
(202) 514-0383 TTY

A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids, barrier removal…and reasonable modifications…that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.

28 C.F.R. 36.301 (c).

Definition of Qualified Interpreter:

The Justice Department regulation defines a “qualified interpreter” as follows:

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

Definition of Effective Communication:

Places of public accommodation must be accessible to individuals with disabilities. For deaf and hard-of-hearing people, the means that they must remove barriers to communication. Service providers must make sure that they can communicate effectively with their deaf clients by providing “auxiliary aids and services” for these individuals:

(c) Effective communication. A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.

28 C.F.R. 36.303.

Primary Consideration and Expressed Choice:

“A critical determination is what constitutes an effective auxiliary aid or service. The Department’s proposed rule recommended that, in determining what auxiliary aid to use, the public accommodation consult with an individual before providing him or her with a particular auxiliary aid or service. This suggestion sparked a significant volume of public comment. Many persons with disabilities, particularly persons who are deaf or hard-of-hearing, recommended that the rule should require that public accommodations give, “primary consideration” to the “expressed choice” of an individual with a disability. These commenters asserted that the proposed rule was inconsistent with congressional intent of the ADA, with the Department’s proposed rule implementing Title II of the ADA, and with long-standing interpretations of Section 504 of the Rehabilitation Act.”

The definition of place of public accommodation incorporates the 12 categories of facilities represented in the statutory definition of public accommodation in Section 301 (7) of the ADA:

• Places of lodging.
• Establishments serving food or drink.
• Places of exhibition or entertainment.
• Places of public gathering.
• Sales or rental establishments.
• Service establishments.
• Stations used for specified public transportation.
• Places of public display or collection.
• Places or recreation.
• Places of education.
• Social service center establishments.
• Places of exercise or recreation.