Did you know that there are approximately 1.4 million deaf and hard of hearing people in Michigan? Many of them use American Sign Language as their primary mode of communication. The MAC often gets calls from member offices with questions regarding exactly what accommodations they are required by law to provide to deaf and hard of hearing patients. This article provides an introduction to the Americans with Disabilities Act (ADA) and its requirements when it comes to providing these accommodations.
About the Americans with Disabilities Act
The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, State and local government services, public accommodations, commercial facilities, and transportation. The ADA is divided into three Titles:
The ADA’s general prohibition against discrimination states:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
The Act then defines discrimination in further detail to include:
[A] failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden…”
According to the U.S. Department of Justice, Civil Rights Division, Disability Rights Section, the ADA requires that Title III entities communicate effectively with people who have communication disabilities. The goal is to ensure that communication with people with these disabilities is equally effective as communication with people without disabilities. Additionally:
“Auxiliary Aids and Services” – Sign Language Interpreters
The ADA uses the term “auxiliary aids and services” to refer to the ways to communicate with people who have communication disabilities. “Auxiliary aids and services” may include such things as qualified Sign Language interpreters, transcription services, written materials, TTY/TDD, telephone handset amplifiers, personal amplifiers, FM units, television decoders and telephones that are compatible with hearing aids.
Lip Reading. According to the Michigan Coalition for Deaf & Hard of Hearing People, lip reading and written communication are often not an option for “effective communication.” When someone is trying to read lips, they are getting at best 30 percent of the information, because the majority of spoken English is made at the back of the throat rather than the lips. Of the 40 percent made on the lips, only 20 percent of the words look exactly the same. Accents, beards, and mustaches can also lead to reduced communication.
Written Communication. Writing back and forth may be unacceptable because most often English is the deaf person’s second language. The average reading level of the deaf population in the United States is fourth grade. American Sign Language (ASL) and English are very different. ASL has its own grammar and syntax and is unlike English.
Family Members. Under federal law, a “qualified” interpreter means someone who is able to interpret effectively, accurately, and impartially, both receptively (i.e., understanding what the person with the disability is saying) and expressively (i.e., having the skill needed to convey information back to that person) using any necessary specialized vocabulary. The Coalition notes that most family members or friends do not have the skill or specialized vocabulary to be able to interpret in a medical setting both accurately and effectively. Family members and friends may not be able to provide impartial or confidential interpreting. There are too many emotions involved. They have no obligation to provide impartiality or confidentiality. And, deaf individuals may not be as honest with family or friends interpreting for them, so all the information needed for appropriate treatment may not be disclosed.
Qualified Sign Language Interpreters. For individuals who use primarily Sign Language, interpreters are often necessary to provide safe and effective medical treatment to a deaf patient. Without a qualified sign language interpreter, a doctor or other health care professional may not be able to communicate effectively and may not understand the patient’s history and symptoms, potentially leading to misdiagnosing the patient’s problem and providing inadequate or even dangerous treatment. Deaf patients may not understand instructions, warnings, or other guidelines without an interpreter.
According to the U.S. Justice Department, some examples of situations where a Sign
Language Interpreter may be necessary are:
Providing an Interpreter. In February 2013, the Michigan Department of Civil Rights, Division on Deaf and Hard of Hearing (“DDHH”), issued new rules regarding certification of qualified interpreters for deaf and hard of hearing individuals. These new rules set forth the certification requirements interpreters must meet before they are able to work in Michigan. Under the new rules, interpreters must be certified either through the national registry of interpreters for the deaf, or through the state, by passing a new state exam.
The Michigan Department of Civil Rights has a directory of qualified Sign Language interpreters that can be accessed online at https://www.michigan.gov/lara/0,4601,7-154-89334_72600_84418---,00.html. The directory lists both referral agencies and qualified interpreters. The Department of Civil Rights advises that a health care provider looking for a qualified interpreter should contact the closest interpreter referral agency, which will identify and send the most qualified interpreter for the assignment, provided they have enough time to schedule the interpreter. If unable to secure a qualified interpreter or if there are further questions, contact the Division on Deaf and Hard of Hearing at (877) 499-6232 toll free or (517) 335-6004.
Costs. The costs associated with using a qualified Sign Language interpreter are considered a “cost of doing business” to the health care provider. Costs cannot be shifted to the deaf or heard of hearing patient.
Penalties. Refusing to provide a qualified Sign Language interpreter for a deaf or hard of hearing patient can lead to penalties. If the patient feels that they could not effectively communicate with the provider, they can file a complaint with the U.S. Department of Justice, the Michigan Department of Civil Rights, and the Michigan Protection and Advocacy Service.
Exceptions. Under federal law, covered entities are required to provide aids and services unless doing so would result in:
In these cases, the public accommodation shall provide an alternative auxiliary aid or service, if one exists, that would not result in an alteration or such burden but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the goods, services, facilities, privileges, advantages, or accommodations offered by the public accommodation.
Undue Burden. According to the DOJ, in determining whether a particular aid or service would result in an undue burden, a title III entity (such as a chiropractic office) should take into consideration the nature and cost of the aid or service relative to their size, overall financial resources, and overall expenses. Determining what constitutes an undue burden will vary from entity to entity and sometimes from one year to the next. The impact of changing economic conditions on the resources available to an entity may also be taken into consideration in making this determination.
Disabled Access Tax Credit. The Disabled Access Credit serves as an incentive for businesses that provide access to individuals with disabilities but incur expenses in the process. The Credit is for small businesses (businesses that earned $1 million or less in gross receipts and employed no more than 30 individuals full-time in the previous year) and is designed to subsidize a variety of expenditures that small business owners may face when being compliant with the ADA. The IRS limits the tax credit to 50 percent of the amount of the eligible expenditures between $250 and $10,250. The Credit could yield a business deduction of as much as $5,000 per current guidelines. This credit can be taken every year in which qualifying expenditures are incurred by using IRS Form 8826.
U.S. Department of Justice
Michigan Department of Civil Rights
Michigan Coalition for Deaf & Hard of Hearing People
Disclaimer: This article is meant to be an information-only introduction to the responsibilities of a physician’s office under the Americans with Disabilities Act and does not constitute legal advice regarding any specific matter or situation. Legal information is not the same as legal advice, which is the application of law to an individual’s specific matter, situation, or circumstances. Legal advice may be given only on the basis of specific facts relayed by a client to an attorney. The MAC goes to great lengths to make sure our information is as accurate, useful, and up-to-date as possible. We recommend, however, that you consult an attorney if you want or need professional assurance that our information, and your interpretation of it, applies to your specific legal situation.