TRANSCRIPT:
The National Association of the Deaf (NAD) seeks to ensure that all healthcare providers, including doctor’s offices and hospitals, understand their legal obligations with respect to serving deaf and hard of hearing patients. The Americans with Disabilities Act (ADA) has clear mandates requiring healthcare providers to provide effective communication to patients who are deaf and hard of hearing. Healthcare providers who run afoul of such provisions are subject to legal action and have been the focus of litigation by the U.S. Department of Justice (DOJ), as was the case in Heisley and United States v. Inova Health System.
ON-SCREEN TEXT: Consent Decree, Heisley v. Inova Health Sys. (E.D. Va. 2011), No. 1:10-cv-714-LMB/IDD.
Errors from ineffective communication increase a patient’s health risks, decrease patient satisfaction, and drive up medical costs to the provider. As such, the NAD believes that providing on-site interpreters should be the primary method by which health care providers and their sign-language-using patients communicate. Only when qualified on-site interpreters are unavailable in urgent matters should providers use Video Remote Interpreting (VRI) services to “fill the gap.”
VRI is a computer-based service, often accessed via a laptop or iPad, to access a remotely located interpreter. This letter contains all the information necessary for healthcare providers to understand the requirements for ADA compliance regarding serving deaf and hard of hearing patients, particularly with respect to the use of VRI services.
ON-SCREEN TEXT: See Americans with Disabilities Act tit. 3, 42 U.S.C. §§ 12181-12189 (2020); 28 C.F.R. §§ 36.101-36.607 (2016).
These provisions show that:
- Title III of the ADA applies to the offices of all private health care providers.
ON-SCREEN TEXT: See 42 U.S.C. § 12181(7)(F).
- The number of employees associated with the healthcare provider, its size or status as a non-profit, and the nature of the care or treatment, is irrelevant as to whether the provider must follow Title III of the ADA.
- Medical offices that do not accept Medicaid or Medicare must abide by Title III.
- State-run healthcare providers or providers that receive federal financial assistance may have additional obligations under federal and state law.
- Medical offices subject to the Affordable Care Act (“ACA”) have additional obligations.
ON-SCREEN TEXT: See 45 C.F.R. § 92.202 (2016).
Healthcare providers’ offices must furnish (that is, obtain and pay for) any auxiliary aid or service that is necessary to achieve effective communication with the deaf or hard of hearing individual.
ON-SCREEN TEXT: See 42 U.S.C. § 12182(b)(A).
a. Whether a particular auxiliary aid or service such as a sign language interpreter is necessary depends on a variety of factors, including the length and complexity of the interaction, and the effectiveness of any alternative used.
b. To be effective, an auxiliary aid or service must ensure that the deaf or hard of hearing individual can both understand and participate in discussions or other interactions.
c. The deaf population varies greatly in its ability to read lips and/or to communicate in written English. Therefore, a short or simple interaction may still require an interpreter if the deaf or hard of hearing individual communicates successfully only through sign language.
d. Ultimately, the key inquiry is whether the communication was effective, that is, could the health care provider communicate with the patient (or other relevant party) as thoroughly and effectively as they could with a hearing person.
3) Auxiliary aids and services include qualified sign language interpreters, both on-site and remote.
ON-SCREEN TEXT: See 28 C.F.R. § 36.303(b).
The provision of a qualified sign language interpreter through VRI services does not automatically ensure effective communication.
- Auxiliary aids and services can also include Video Remote Interpreters (“VRIs”), oral interpreters, cued speech transliterators, tactile interpreters, Certified Deaf Interpreters (“CDIs”), captioning of audio-visual materials, and text-based services such as Communication Access Realtime Transcription (“CART”).
ON-SCREEN TEXT: See 28 C.F.R. § 35.104.
4) Any interpreter provided, either on-site or through VRI services, must also be qualified.
a. To be “qualified”, an interpreter must be able to “interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.”
ON-SCREEN TEXT: 28 C.F.R. § 36.104.
b. The following individuals are not “qualified” interpreters: (1) an employee or staff member who knows basic sign language; (2) family members, adult companions, and minor children of the patient or service recipient, except in certain cases of emergency; (3) any interpreter who does not communicate proficiently with the deaf or hard of hearing individual.
c. It is important to ensure that the interpreter provided is properly licensed as many states require sign language interpreters to obtain state licenses.
d. Healthcare providers may be required to furnish an additional interpreter with expertise in the deaf individual’s particular communication style in order to achieve effective communication.
i. For some deaf and hard of hearing individuals, effective communication can only be achieved with the use of a CDI. CDIs are deaf specialists who interpret the message in a way that is customized to fit the communication needs of the deaf individual. CDIs work in tandem with a hearing ASL interpreter, CDIs may also be useful in emotional situations, such as those involving mental health, abuse, or trauma; for children with developing language skills; and for deaf individuals who use sign languages other than ASL, use a mixture of gesture or home signs, or may have other challenges preventing them from using a hearing ASL interpreter.
5) The ACA requires healthcare providers to give “primary consideration” to requests for a particular auxiliary aid or service. If a patient requests an on-site interpreter, providers must honor this request unless they can show that VRI is equally effective.
ON-SCREEN TEXT: See 45 C.F.R. § 92.202.
6) According to the DOJ, healthcare providers must provide the following technology support for VRI to have the potential to be effective:
a. “Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication.”
ON-SCREEN TEXT: 28 C.F.R. § 36.303(f)(1).
b. “A sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position.”
ON-SCREEN TEXT: 28 C.F.R. § 36.303(f)(2).
c. “A clear, audible transmission of voices.”
ON-SCREEN TEXT: 28 C.F.R. § 36.303(f)(3).
d. In addition, the healthcare provider must ensure that:
i. Personnel receive adequate training “so that they may quickly and efficiently set up and operate the VRI.”
ON-SCREEN TEXT: 28 C.F.R. § 36.303(f)(4).
ii. The patient is a suitable match for VRI services. For example, (1) the patient is alert, oriented and not heavily medicated; (2) the patient has no injuries or conditions that interfere with their ability to view the VRI screen; (3) the patient has the cognitive ability to understand the nature and purpose of VRI services.
ON-SCREEN TEXT: See Settlement Agreement, United States v. St. Joseph Hosp. of Nashua, N.H. (2010), No. 202-47-49.
e. When VRI services are not effective, healthcare providers must furnish an on-site interpreter promptly (within 2 hours).
ON-SCREEN TEXT: See Settlement Agreement, United States v. Franciscan St. James Health (2014), No. 202-23-247; Settlement Agreement, United States v. Swedish Edmonds Hosp. (2014); Settlement Agreement, United States v. Associated Foot & Ankle Ctrs. of N. Va., PC (2014), No. 202-79-281.
7) Healthcare providers may not charge the individual requesting the auxiliary aid or service (e.g., the deaf or hard of hearing patient) for the provision of these services.
ON-SCREEN TEXT: See 28 C.F.R. § 36.301(c).
a. Healthcare providers may not require the deaf or hard of hearing patient or companion to bring an interpreter or other auxiliary aid or service to the appointment.
b. Fees or surcharges associated with providing interpreting services may not be passed on to a deaf or hard of hearing patient or companion.
c. Healthcare providers may not require that the deaf or hard of hearing patient or companion pay for interpreting services in case of a cancellation of the appointment.
d. Healthcare providers may charge a “missed appointment” or “no-show” fee to all patients as long as the fee is charged to all patients equally. The deaf or hard of hearing patient or companion may not be required to pay a higher cancellation fee and may not be penalized for missed appointments in ways not imposed on all patients equally.
e. Healthcare providers may not impose additional requirements on deaf or hard of hearing patients that are not imposed on all patients equally (i.e. requiring only deaf or hard of hearing patients to arrive well in advance of their scheduled appointment).
f. A lack of advance notice of the need for an auxiliary aid or service does not excuse the healthcare provider from making best efforts to secure the aid or service.
g. To ensure that certain auxiliary aids and services (e.g., sign language interpreters) can be secured, healthcare providers must procure the service as soon as the deaf or hard of hearing patient or companion makes their request.
h. Healthcare providers should view the cost of providing interpreters as part of its overhead. Thus, the healthcare provider may increase charges for all patients to cover the cost of the interpreter but may not bill the deaf or hard of hearing patient or companion exclusively.
8) Deaf or hard of hearing companions of a patient or recipients of other services that the healthcare facility provides have an identical entitlement to auxiliary aids and services.
ON-SCREEN TEXT: See 28 C.F.R. § 36.303(c).
a. Healthcare providers must provide auxiliary aids and services for family meetings and any other situation where a companion would normally be included.
b. “[C]ompanion” means a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate”.
ON-SCREEN TEXT: 28 C.F.R. § 36.303(c)(1)(i).
c. Deaf parents of hearing children, deaf children of hearing parents, deaf spouses, and other deaf relatives have a right to auxiliary aids and services to communicate effectively with healthcare providers, participate in their loved one’s health care, and give informed consent for the loved one’s medical treatment.
9) Classes, support groups, and other activities that are open to the public must also be accessible to deaf and hard of hearing participants.
10) Although the ADA does not require healthcare providers to furnish auxiliary aids and services where doing so would create an undue burden, such a situation is unlikely to arise in the context of a single appointment or a series of appointments, especially if such appointments are scheduled in advance.
ON-SCREEN TEXT: See 28 C.F.R. § 36.303(a).
a. The nature of the burden is measured in the context of the facility’s overall resources, including the resources of any parent company.
ON-SCREEN TEXT: See 28 C.F.R. § 36.104.
b. That the cost of providing an interpreter exceeds the reimbursement for the patient’s care does not mean that the cost imposes an undue burden.
c. The inability to satisfy all communication needs does not excuse the healthcare provider from providing auxiliary aids and services that “to the maximum extent possible” ensure effective communication without incurring an undue burden.
ON-SCREEN TEXT: See 28 C.F.R. § 36.303(h).
d. Healthcare providers are encouraged to consult a tax advisor regarding available tax credits and other positive tax consequences of providing auxiliary aids and services. (Explore ADA.GOV for more information).
ON-SCREEN TEXT: See IRS Tax Credits and Deductions, ADA.GOV, http://www.ada.gov/taxcred.htm.
11) Healthcare providers must place and accept calls placed through Video Relay Services (“VRS”) or text-based telecommunications relay services (“TRS”) in the same manner that they place and accept direct telephone calls.
ON-SCREEN TEXT: See 28 C.F.R. § 36.303(d)(4).
a. The Federal Communications Commission (“FCC”) has ruled that relay services “can be used to facilitate calls between healthcare professionals and patients without violating the Health Insurance Portability and Accountability Act (HIPAA)’s Privacy Rule.”
ON-SCREEN TEXT: 69 Fed. Reg. 41264 (proposed June 16, 2004).
b. The healthcare provider incurs no additional charge for placing or accepting calls placed through relay services.
c. The FCC prohibits the use of VRS as a substitute for in-person interpreting or VRI services.
ON-SCREEN TEXT: Public Notice, 20 FCC Rcd 1471, DA 05-2417 (2005).
12) Healthcare providers may not refuse to accept a patient because the patient or the patient’s companion may require auxiliary aids and services, nor may healthcare providers dismiss a patient because the patient may require auxiliary aids and services.
ON-SCREEN TEXT: See 42 U.S.C. § 12182(b)(1)(A)(i).
13) More information regarding the use of VRI in healthcare settings can be found online:
a. Position Statement, National Association of the Deaf (NAD) and Deaf Seniors of America (DSA) Minimum Standards for Video Remote Interpreting Services in Medical Settings
ON-SCREEN TEXT: (Feb. 13, 2018)
b. Standard Practice Paper, Registry of Interpreters for the Deaf, Video Remote Interpreting (2010). Please note that healthcare providers may have additional obligations under state and federal law not included in this letter.
c. A healthcare provider may find a local agency that contracts to provide auxiliary aids and services by conducting a basic internet search for the particular aid or service needed. For example, searching for “American Sign Language interpreter Washington, DC” will bring up a list of interpreting agencies in Washington, DC. Thank you for your attention to this important matter.
Sincerely,
The National Association of the Deaf
Law and Advocacy Center