Compliance Corner

Interpreting the ADA Know when and how to leverage aids and services to communicate with hard-of-hearing patients

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THIS YEAR MARKS THE 30th anniversary of the Americans With Disabilities Act (ADA). Signed into law on July 26, 1990, by President George H.W. Bush, the ADA has gone through some changes, and amendments have been added over the past three decades. But at its core, it remains a law designed to prohibit discrimination against individuals with disabilities in all areas of life and to ensure that people with disabilities have the same rights and opportunities as everyone else. This issue’s Compliance Corner focuses on one provision of the ADA that continues to cause some confusion among medical professionals: the rules regarding communicating with patients who may have hearing, vision, or speech impairments—or understanding when an interpreter is required.

Protecting Individuals With Disabilities At its core, the ADA is divided into five sections, or titles, designed to address or relate to different

aspects of everyday public life. Title I, Equal Employment Opportunity for Individuals

With Disabilities, addresses employment. This title requires employers to provide reasonable accommodations to qualified applicants and employees. A reasonable accommodation is any modification or adjustment to a job or work environment that will enable an applicant or employee with a disability to participate in the application process or to perform essential job functions.

Title II, Nondiscrimination on the Basis of Disability in State and Local Government Services, prohibits discrimination in all programs, activities, and services of public entities. ADA Equal Employment Opportunity for Individuals With Disabilities Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities Miscellaneous Provisions Telecommunications TITLE I TITLE II TITLE III TITLE IV TITLE V Nondiscrimination on the Basis of Disability in State and Local Government Services

This section also may be viewed as the transportation title, as it applies to public transportation provided by public entities. It establishes detailed standards for the operation of public transit systems, including commuter and intercity rail. This section requires local public transit systems to offer paratransit services or similar options. Title III, Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, prohibits private places of public accommodation—such as hotels, restaurants, or healthcare facilities—from discriminating against individuals with disabilities and sets the building standards for accessibility. This title directs businesses to make reasonable modifications to their normal daily operations when serving people with disabilities, and requires that these businesses take the required and necessary steps to communicate effectively with customers with vision, hearing, and speech disabilities. Title IV, Telecommunications, requires that all telephone and Internet companies provide a system that allows

individuals with hearing and speech disabilities to communicate over the telephone. This section also requires closed captioning of federally funded public service announcements.

Finally, Title V, or the Miscellaneous Provisions, lays out the ADA’s relationship with other existing laws and prohibits any retaliation or coercion. As would be expected, answers to questions about the requirements regarding interpreters are found in Title III. Specifically, Section C, Part 360.303, Auxiliary Aids and Services, covers this topic. This section states that you have a duty to make available or offer appropriate aids or services when they are needed to provide effective communication with people who are deaf or hard of hearing.

Meeting the Needs of the Hard of Hearing So, what are considered appropriate aids and services, and what is effective communication? Several aids and services are considered appropriate, and each one has its own merits, faults, and complexities; the one you choose to use may be based on your situation.

Here are some examples of appropriate aids and services: written materials/exchange of written notes, computeraided transcription services, and video remote interpreting services.

Then there is the option of qualified interpreters. A qualified interpreter is defined as someone “who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.” An individual does not need to be certified in order to meet this definition, unless your state requires the use of certified individuals. In most cases, family members, friends, and companions would not be considered qualified interpreters because they could be emotionally involved or could have interests that conflict with the patient’s—thus, they would not be able to interpret “effectively, accurately, and impartially.” In addition, using family members,

38 APRIL 2020 | O&P ALMANAC friends, or companions as interpreters can cause problems when it comes to maintaining patient confidentiality. However, even though a family member, friend, or companion is not a qualified interpreter, one of these individuals may be acceptable in certain scenarios—for example, in an emergency. So how do you know which method of interpretation to use? That depends on the effectiveness of the communication required. The key to communicating effectively is to consider the nature, length, complexity, and context of the communication and the patient’s normal and preferred methods of communication. For example, if the patient is in the office to set up an appointment, ask some general questions, or meet briefly for a quick follow-up appointment, you may be able to rely on notes, brochures, or a similar method of communication.

However, if the patient is there for a first fitting or the appointment requires a full exam and testing, then notes may not be adequate to explain the situation or allow the patient to ask complex questions. In this case, an interpreter may be required, or you may be asked to use a different method, if requested by the patient. Be sure to consider the patient’s normal means of communication or preferences. Understand that there are different types of sign language, so you would need to determine the method preferred by your patient—if the patient even uses sign language. In addition, the patient may have experiences with all of the auxiliary aids and services you offer but may prefer one method over another. Remember that you are not always required to provide the method of interpretation that the patient chooses or prefers. You should ask the patient’s preference and try to accommodate that choice to ensure lines of effective communication, but the final decision rests with you—as long as the method chosen results in effective communication.

In addition, the ADA states that you are not required to provide a particular auxiliary aid or service if it causes an undue burden to your business. An undue burden can be something that involves significant difficulty, such as hiring an interpreter on short notice, or expense. An undue expense doesn’t solely mean the interpreter is more expensive than the item/ service you are providing; an undue expense considers your overall financial resources and overall expenses. Note that the business is required to pay for whichever interpreter, auxiliary aid, or service you and your patient elect to use, as this is considered part of doing business. If you are a small business and are required to pay for one or more auxiliary aids or services, you may want to consider speaking with an accountant as tax breaks may be available. This Compliance Corner looked at only one component of the ADA, and it did so with a broad lens. If you have specific questions or are looking for an interpretation of the ADA, consider speaking with an attorney or visiting the ADA website, www.ada.gov.

Devon Bernard is AOPA’s assistant director of coding and reimbursement services, education, and programming. Reach him at dbernard@AOPAnet.org.

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