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Obligations of Hospitals and Nursing Homes to Provide
Interpreters and Auxiliary Aids for Deaf and Hard of Hearing
Patients
Inpatient health care
facilities have important responsibilities under federal law
to be accessible to deaf and hard of hearing individuals.
Failing to provide interpreters and adapted equipment may be
discrimination on the basis of disability. In addition,
failure to establish effective communication with a deaf
patient may expose a health care provider to liability for
medical malpractice.
This memorandum
addresses the obligations of a hospital to provide qualified
interpreters to its deaf and hard of hearing patients. This
right is established under two federal laws.
Section 504 of the
Rehabilitation Act of 1973
Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. Š 794, requires
federal financial recipients' programs to be equally
accessible to handicapped persons. The U.S. Department of
Health and Human Services (HHS) regulations to Section 504
require pro vision of necessary auxiliary aids, such as sign
language interpreters, to ensure equal access to federal
financial recipients' programs. These regulations specify
that:
A recipient to which this
subpart applies that employs fifteen or more persons shall
provide appropriate auxiliary aids to persons with impaired
sensory, manual, or speaking skills, where necessary to
afford such persons an equal opportunity to benefit from the
service in question.
* * *
For the purpose of this
paragraph, auxiliary aids may include brailled and taped
material, interpreters, and other aids for persons with
impaired hearing or vision.
45 C.F.R. Š 84.52(d)
Provision of qualified sign
language interpreters is critical to ensure that deaf
persons are able to benefit from and participate equally in
the program. The Office for Civil Rights of HHS has
consistently required hospitals to provide qualified
interpreters and TDDs to deaf clients, and has stated:
. . . it would be extremely
difficult for the health care provider to demonstrate in
certain service settings, that effective communication is
being provided in the absence of . . . interpreters.
Section 504, Effective
Communications, and Health Care Providers,
U.S. Department of Health and Human Services, Region III,
Regional Technical Assistance Staff (January, 1982), page 5.
The Department of Health
and Human Services, Office for Civil Rights (OCR) has
determined that effective communication must be provided at
"critical points" during hospitalization. OCR has defined
"critical points" as follows:
These would include those
points during which critical medical information is
communicated, such as at admission, when explaining medical
procedures, when an informed consent is required for
treatment and at discharge.
U.S. Department of Health
and Human Services, Office for Civil Rights, Region III,
Letter of Findings, Ref. No. 03913037 (December 12, 1991),
at 5.
Moreover, HHS has
repeatedly stated that the deaf patient's assessment of his
or her communication needs must be given great deference:
In most circumstances, we
believe that the hearing impaired person is in the best
position to determine what means of communication is
necessary to insure an equal opportunity to benefit from
health care services. Therefore, the patient's judgment
regarding what means of communication is necessary to insure
effective communication must be accorded great weight.
* * *
The presumption favoring
the hearing impaired patient's self assessed need is not
overcome merely by a showing that the hearing impaired
patient suffered no harm. Rather, the recipient must
demonstrate that the hearing impaired patient actually
understood what was being communicated through the
alternative communication option.
Stewart, Roma, (Director,
HEW Office for Civil Rights), "Memorandum: OCR's Position on
the Provision of Auxiliary Aids for Hearing Impaired
Patients in Inpatient, Outpatient and Emergency Treatment
Settings", (April 21, 1980), page two.
Many physicians wonder why
the exchange of written notes will not suffice with a deaf
patient. The Department of Health and Human Services
recognizes that there is a distinction between English and
American Sign Language, and that written communications , or
interpreters not skilled in American Sign Language (ASL),
will not suffice as effective communication for deaf persons
who utilize ASL:
. . . American Sign
Language (ASL) [is] a manually communicated language
distinct from English and whose idioms and concepts are not
directly translatable into English. It uses different
sentence structure, grammar and syntax than English, and is
as much a foreign language to English speaking persons as is
French or German. Conversely, English is equally foreign to
most deaf persons who rely on ASL for communication. It is a
common misconception that "sign language" is merely a
pantomime of the English language and is therefore easily
understandable in print if not auditorily. ASL sentences do
not follow English sequential patterns. As a result, direct
translation of English, as with written notes, into ASL will
not necessarily convey the intended message. Similarly, much
of English idiomatic speech would be lost on the ASL user
whose frame of reference for idiom is significantly
different from the hearing person.
U.S. Department of Health
and Human Services, Office for Civil Rights, Region III,
Letter of Findings, Ref. No. 03913037 (December 12, 1991) at
4.
Please note that there is
no distinction between in-patient and out-patient treatment.
All services provided by health care facilities must be
accessible.
Americans with
Disabilities Act (ADA)
In addition to hospitals'
Section 504 obligations, hospitals, physicians and nursing
homes have an federal obligation to provide auxiliary aids
and services to disabled patients under Title II (public
hospitals) or Title III (private facilities) of the
Americans with Disabilities Act, 42 U.S.C. 12181 et seq. The
ADA covers places of public accommodation and public
entities, regardless of whether that entity receives federal
financial assistance. The U.S. Department of Justice
regulation to Title III of the ADA, 28 C.F.R. Part 36, and
the Analysis thereto, 56 Fed. Reg. 35544 (July 26, 1991),
provide information on the exact nature of what will be
required under the ADA. Public accommodations are required
to provide auxiliary aids when necessary to enable a person
with disabilities to benefit from their services:
A public accommodation
shall furnish appropriate auxiliary aids and services where
necessary to ensure effective communication with individuals
with disabilities.
28 C.F.R. Š36.303(c). The
definition of auxiliary aids and services includes,for deaf
and hard of hearing individuals, "qualified interpreters."
28 C.F.R. 36.303(b)(1). The definition of what constitutes a
qualified interpreter is also set forth in this regulation.
The U.S. Department of Justice has defined "qualified
interpreter" 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; 28 C.F.R.
35.104.
While the Departments of
Health and Human Services, and Justice, have not required
certification for interpreters under these federal laws, due
to the difficulty in some areas of the nation to secure a
certified interpreter, it is doubtful that any individual
who has not been formally trained as an interpreter can
perform the functions of a medical interpreter. Hospitals
are strongly advised to use adequately trained interpreters,
in order to avoid the possibility of misdiagnosis or
improper treatment as a result of inadequate communication.
The Department of Justice
specifically cautions against the use of family members or
friends as interpreters:
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. at 35553.
The problems that may arise
with having a family member or friend interpreting in a
medical setting are considerable. There may be necessary
information that the family member fails to communicate, in
a misguided effort to shield the deaf patient. There may be
questions the deaf person will not ask in the presence of
the family member or friend. The family member or friend may
be too emotionally upset by the medical situation to
interpret correctly. Finally, the family member or friend
will seldom meet the qualification requirements of the law.
The Department of Justice
does not permit a public accommodation to charge a person
with a disability for the cost of the auxiliary aid
provided. The Title III regulation states:
A public accommodation may
not impose a surcharge on a particular individual with a
disability . . . to cover the costs of measures, such as the
provision of auxiliary aids . . that are required to provide
that individual . . . with the nondiscriminatory treatment
required by the Act or this part.
28 C.F.R. 36.301(c).
Inpatient facilities also
have responsibilities under the ADA to assure that their
telephone services, television services, and other services
are accessible and usable by deaf individuals. For
information about the responsibility to provide TTYs,
captioned televisions, flashing light warning systems and
alarms, contact the NAD Law Center.
There are tax credits
available for expenses incurred in the course of
accommodating patients with disabilities. The Access Credit,
created by the Revenue Reconciliation Act of 1990, provides
a tax credit of one half of the cost of interpreters and
similar measures that exceed $250.00. This credit, available
only to businesses which have either thirty of fewer full
time employees or gross receipts of under one million
dollars annually, will greatly reduce the cost of such
accommodations for most physicians.
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