by Kim Stanger, Holland & Hart LLP

We are often asked whether healthcare providers must provide interpreters or other auxiliary aids to persons who are hearing or visually impaired.  The Americans with Disability Act (“ADA”) prohibits places of public accommodation (including private physician offices and hospitals) from discriminating against persons with disabilities.  Healthcare providers must provide auxiliary aids to patients or companions of the patient (e.g., parents, spouses, or personal representatives) if doing so is necessary to ensure effective communication unless doing so would cause undue hardship or fundamentally alter the nature of the provider’s services—standards that are very difficult to prove.  The fact that an appropriate auxiliary aid costs more than reimbursement for the provider’s service is not “undue hardship.”  Appropriate auxiliary aids may include interpreters, video remote interpreting (“VRI”), written materials, exchange of written notes, assistive listening devices, etc.  The provider should consult with the patient, but the ultimate decision as to what measures to take rests with the provider so long as the measures ensure effective communication.  For simple communications involving hearing impaired persons, lip reading or using a pen and note pad may be sufficient; for communications involving complex information (e.g., discussions about significant medical issues, treatment options, or instructions), the Department of Justice (“DOJ”) has suggested that ASL interpreters may be required.

ADA regulations confirm that providers may not charge the patient for the cost of the auxiliary aids, nor may providers require the patient to bring their own interpreter or supply other auxiliary aids.  Providers may not rely on adults accompanying the patient to interpret unless it is an emergency and there is no other interpreter available, or the patient requests that the adult interpret and the provider believes reliance on the adult is appropriate.  Providers may not rely on minors to interpret unless it is an emergency and there is no other interpreter available.  Providers may not coerce, threaten, intimidate or retaliate against a patient or their companion for requesting auxiliary aids or exercising their rights.

For more information, see the ADA regulations at 28 CFR part 36; the OCR’s website, www.hhs.gov/ocr/civilrights; or the DOJ’s ADA website, www.ada.gov.  Among other things, the DOJ’s website contains information about its ongoing Barrier-Free Health Care Initiative.

Kim Stanger is the Chairman of Holland & Hart LLP’s Health Law Group.  He can be reached at kcstanger@hollandhart.com or (208) 383-3913.  To subscribe to Holland & Hart’s free e-newsletter or blog concerning health law issues, please e-mail Mr. Stanger.

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