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Medical Society 6405 Metcalf Avenue, Suite 507
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Interpreters For the Deaf
The Americans with Disabilities Act-Communication Accommodations
Project
The American Foundation for the Blind MEMORANDUM ON THE OBLIGATION 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. 7 36.104. The ADA therefore applies to doctors, dentists, psychiatrists and psychologists, hospitals, nursing homes and health clinics, and all other providers in mental and physical health care. Places of public accommodation must be accessible to individuals with disabilities. For deaf and hard of hearing, this 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 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 healthcare 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 discussion, such as those about health issues, may require interpreter service if that is the communication method used by the deaf individual:
The Department wishes to emphasize that public 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, communication 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. Funded by a Grant from the U.S. Department of Justice
Effective communication with the deaf patient under the ADA In the November issue of the Kansas Physician, Lori Callahan, General Counsel for KaMMCO, discussed providing interpreters for the deaf patients under the Americans with Disabilites Act (ADA). Ms. Callahan informed us that the physician holds ultimate responsibility for providing effective communication with the deaf patient. Unfortunately, most hearing people, including hearing physicians, do not really understand how the deaf or hard-of- hearing communicates. The best way to communicate with a profoundly deaf patient is to use an interpreter. Only 12% of deaf people nationwide are fluent in English. Most profoundly deaf people, including 85% of profoundly deaf Kansas use American Sign Language (ASL). ASL does not consist of English words signed in their exact order. ASL is a language distinct from spoken or written English. When an interpreter signs ASL, they are not replacing each word of spoken English with a gesture that stands for that word: instead they are "interpreting" the message for the deaf person. There is no written form of ASL. When I am tempted to use note-writing with a deaf patient I remember this true story. A deaf male in his mid-twenties went to his doctor's office in Johnson COunty for a surgical procedure. The man had been writing notes back and forth with the doctor and his nurse and had signed the permit for surgery. The interpreter arrived and asked the man if he understood the planned procedure was a vasectomy. The man signed no and explained he was to have a hernia fixed. He was planning to marry soon and definately wanted children. This is just one example of miscommunication from note-writing. Deaf patients may contribute to the physician's assumption that note-writing is adequate by nodding their heads (the "deaf nod"). If you must use note-writing, don't assume the deaf patient understands. ask the patient to write back to you what they understand. Remember that it is the physician that is ultimately responsible for assuring effective communication under the ADA. Obviously, as physicians we want our patients to understand our questions and our explanations of treatments.I recommend the following:
If you have any questions about effectively communicating with your deaf or hard-of-hearing patients, you may contact Lori Callahan at KaMMCO. The phone numbers are 913-232-2224 or 800-232-2259. Kansas PhysicianVolume I, Number VII - January 1996
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