ADA Rights in Health Care

For Individuals Who Are Deaf or Hard of Hearing

ADA RIGHTS IN HEALTH CARE The federal Americans

With Disabilities Act (ADA), provides for equal access to health care providers’ programs and services. Title III of the ADA applies to places of public accommodation, including most medical offices.

Highlights of the ADA for Persons who are Deaf or Hard of Hearing The ADA requires effective

communication, and the provision of appropriate auxiliary aids and services, (including qualified interpreters) when necessary to ensure effective communication for persons with disabilities. (42 U.S.C.§12182(b)(2)(A)(iii), and key administrative regulations implementing Title III of the ADA at 28 C.F.R. §36.303)

Section 504 of the Rehabilitation Act of 1973 (the “Rehab Act”)

A federal law that prohibits discrimination on the basis of disability by entities that receive federal financial assistance, such as Medicare/Medicaid funds.

The Arizonans With Disabilities Act (AzDA)

The Arizonans With Disabilities Act (AzDA) is a state law which also prohibits discrimination on the basis of disability.

Questions and Answers….

What are my rights and obligations?

Must an interpreter be provided for every appointment? No. The requirement is effective

communication. Interpreters must be provided when the information exchanged is sufficiently lengthy and complex, and other auxiliary aids do not ensure effective communication. For example, an interpreter is likely not necessary for a doctor’s visit for a simple vaccination shot or blood pressure check.

Who Decides if an Interpreter Will be Provided? The health care professional. We suggest

that the patient make a written request for an interpreter. The medical provider should consult with the person with a disability to determine the most effective means of communication, and the auxiliary aids and services necessary for that person. However, the final decision lies with the medical office.

Must a “Certified Interpreter” be Provided? No. A “qualified interpreter” must be

provided. A qualified interpreter is an interpreter that can “communicate effectively, accurately and impartially, using any necessary specialized vocabulary.” A member of the medical staff who knows finger spelling or some signs is not a “qualified interpreter.”

Who Pays for the Interpreter? The place of public accommodation (ie:

the health care professional). The medical professional is expected to treat the cost of providing an interpreter as a general business expense. The person with a disability CANNOT be charged for the provision of auxiliary aids and services.

Do Written Notes Equal Effective Communication? Sometimes, depending on the reading

ability and English proficiency of the person with a disability, and the length and complexity of the communication. However, for many individuals who are deaf, ASL is their “first” or “primary” language, not English, and therefore, ASL may be the only means of effective communication.

Are There Limitations on the ADA’s Requirements? Yes. The ADA does not require the

provision of auxiliary aids and services, including interpreters, if doing so would result in an “undue burden” on the provider, or a “fundamental alteration” of the program or service offered. (See 28 C.F.R. §36.104)

Can a Family Member or Friend Be Asked to be My Interpreter? No. Even if a friend or family member is

fluent in ASL, they may leave out key information, not understand or be able to relay the medical information discussed, or be too emotionally involved to interpret “effectively, accurately and impartially.” In other words, they may not be a “qualified interpreter.”

Are There Any Incentives to Persuade the Doctor to Provide an Interpreter? Yes. The IRS allows a tax credit for

business that provide access and accommodations – including interpreters -- to the disabled. (See IRS form 8826). For more information, visit: http://www.usdoj.gov/crt/ada/publicat.htm#Anchor-14210 and choose “ADA Tax Incentives Packet for Businesses.”

What Can I Do if I Feel Discrimination Has Occurred? 1. File a complaint with the

Arizona Attorney General’s Office under the AzDA, by calling: (602) 542-5263 (Voice/relay) or 542-5002 (TDD) in Phoenix or (520) 628- 628-6500 (Voice/relay) or (520) 628-6872 (TDD) in Tucson. Your complaint must be filed within 180 days from the date of discrimination.

2. File a complaint with the U.S. Department of Justice under Title III of the ADA. (See enclosed form in your packets.) There is no deadline in statute in which to file this complaint, but we urge you to do so as soon as possible to preserve your rights.

3. File a complaint with the U.S. Department of Health and Human Services under Section 504 of the Rehab Act. (Form enclosed in your packets). This complaint must be filed within 180 days of the date of discrimination.

4. File a lawsuit against the healthcare professional.

The deadline for filing a lawsuit alleging violations of the ADA and the Rehabilitation Act may be as short as 1 year from the date of discrimination, or perhaps two years; the law is unsettled on this point. The deadline for filing a lawsuit alleging violations of the AzDA is “not later than two years after the occurrence or the termination of” the discrimination. You should consult an attorney regarding your claim.

How to Contact the Arizona Center for Disability Law for AssistancePlease call our Short Term Assistance

Team (STAT) during our hours of

operation: Monday, Tuesday, Thursday

and Friday 9:00 a.m. – 1:00 p.m.

Please call (800) 927-2260 or

(602) 274-6287 (Voice, Relay or TTY)

Don’t Get “Stuck” Without Effective Communication…. Advocate for Your Rights!