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Just Ask Barney - Effective Communication and Medical Offices
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July 2010 Newsletter Main Page
Just Ask Barney
Effective Communication and Medical Offices
For individuals who are deaf or hard of hearing, and for the small dental and medical offices that serve them, effective communication can be problematic. Should an interpreter be hired for routine procedures? What if the patient doesn't show as scheduled, twice in a row, without calling? Read what Barney has to say...
The problem
Imagine making an appointment to deal with a vexing medical problem at your local clinic and finding that the doctor and everyone else in the clinic only spoke Greek. Even if the physician offered the very finest medical services and treatment, would the lack of communication be concerning? For individuals who are deaf or hard of hearing, part of being an informed patient and making good health choices depends on understanding complex issues.
On the other side, imagine running a small business and being legally required to hire a temporary employee to assist your regular staff to serve a customer whose purchases will not cover the cost of the temp. And the legal requirement is not altered if the customer decides he doesn’t like your offerings, or forgets to cancel the appointment and doesn’t show up. The effort required to provide the accommodation can seem disproportionate to the business generated, and the legal requirement may seem especially onerous.
The rights, obligations, and responsibilities for effective communication under Title III of the ADA generate a lot of questions and not a little anger among the callers for technical assistance at NW ADA Center. What exactly are the options?
The question
A representative from a physician’s office called with a question about paying the cost of an interpreter for a patient who is deaf. This new patient made an appointment for a routine physical exam. In addition to the normal communication required as part of a physical exam, this is a new patient, so it would be necessary to gather a substantial amount of medical history during this first visit. The physician’s office made arrangement for an interpreter. The patient did not show up for the appointment and a fee was paid by the physician for the interpreter. The patient called a week later wishing to reschedule their appointment. Can a physician require that the patient agree to pay a cancellation fee to cover interpreter services if they do not show up for their appointment or if they cancel after the physician becomes financially liable for the service?
Our answer
The requirement: On the face of it, the obligation under Title III of the ADA is straightforward. Businesses like doctors’ and dentists’ offices fall under one of the 12 categories of public accommodations covered by the title, specifically:
6) Service establishments (e.g. , laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals)
These public accommodations are required to provide what the ADA terms “auxiliary aids and services” which are necessary to ensure equal access to services by individuals with a disability. Auxiliary aids and services address the needs of individuals whose disability impacts their communication, such as those who are blind, deaf, or have speech impairments. The obligation to provide auxiliary services is a requirement unless it poses an “undue burden” on the business or a “fundamental alteration” would result. We’ll get back to those terms a little later. Still, the requirement is broad and not closely defined. What are the options?
Does the requirement for auxiliary aids and services mean that an ASL interpreter must always be hired, or is it more complicated than that?
No, and yes. It’s important to remember that all people with disabilities are not peas in a pod, that is, they have different needs in the area of communication. Solutions need to be tailored to the individual, and it’s not a good idea to make too many assumptions. In fact, for a doctor’s office the first step might well be having a discussion via email with the prospective patient to clarify what works and what doesn’t. Just as important as tailoring the means of communication to the user, we must remember that the type of auxiliary aid or service necessary needed to ensure effective communication will also vary in accordance with the length and complexity of the communication involved. This factor is critically important in medical settings where the length, complexity, and importance of the communication can vary markedly for an individual patient depending on the clinical situation in which they are involved. For example, for a patient who is deaf, written notes may suffice in some simple situations like a routine visit for a blood pressure reading or a vaccination. However, many clinical situations are more complex and an interpreter is more likely to be required for effectiveness and accuracy of doctor-patient communication. For example, discussion of a patient’s options for treatment of a serious medical condition would almost certainly call for use of an interpreter.
Who decides what type of auxiliary aid should be provided?
If possible, the health care provider should consult with the patient with hearing loss to determine what type of auxiliary aid is needed. In many cases, more than one type of auxiliary aid or service may make effective communication possible. While consultation is desirable, the ultimate decision as to what measures to take to ensure effective communication rests in the hands of the health care provider. The method chosen must result in effective communication. Let’s say that a patient who is deaf brings their own sign language interpreter for an office visit without prior consultation and bills the physician for the cost of the interpreter. The physician is not obligated to comply with the unilateral determination by the patient that an interpreter is necessary. The physician must be given an opportunity to consult with the patient and make an independent assessment of what type of auxiliary aid, if any, is necessary. If the patient believes that the physician's decision would not result in effective communication, then the patient may challenge that decision by initiating litigation or filing a complaint with the Department of Justice.
Who pays for the interpreter, or other appropriate auxiliary aid or service?
The ADA explicitly states that the health care provider cannot charge a patient for the costs of providing an auxiliary aid or service. In most cases, the cost of the interpreter would exceed the charge for a routine office visit. The health care provider must treat this type of expense as another type of overhead expense required for operating a practice. One form of monetary relief is the Disabled Access Credit which provides a federal tax credit for eligible small businesses that incur expenditures for the purpose of providing access to persons with disabilities. This includes the removal of communication barriers, and may be used to cover the costs of providing auxiliary aids and services such as interpreters.
What if the patient does not show up for their appointment and does not call to cancel it?
In situations when the patient is a “no show” and arrangements were made for an interpreter, the health care provider is still obligated to pay for the interpreter. Events may arise that are beyond any patient’s control, such as an illness or business emergencies. Imposing the costs of interpreter services in the event of cancellation under such circumstances places a patient who needs an interpreter at a distinct disadvantage. However, the ADA would not prohibit the health care provider from charging a standard cancellation fee for missed appointments provided that the policy of charging cancellation fees is applied uniformly to all their patients. Often times, a medical office may place a “reminder” phone call a day or two prior to an appointment. Although patients who are deaf can request that relay operators retrieve messages from their voice answering machines or voicemail, this is an optional service so it would be best to transmit the appointment reminder via email or by postcard.
Under what circumstances can a health care provider refuse to pay for an interpreter, or other auxiliary aid or service?
A health care provider is not required to provide an auxiliary aid or service that would result in an undue burden. The term "undue burden" means "significant difficulty or expense". Undue burden is determined on a case-by-case basis in light of factors such as the nature and cost of the aid or service, and the overall financial resources of the practice. In determining whether the provision of an interpreter would result in an undue burden, the health care provider should consider not only the fees paid for providing the medical service or procedure, but also the overall financial resources of the practice. Again, the health care provider should consider other factors that would minimize the degree of burden on the practice, such as the ability to spread costs throughout the general patient population and the provision of tax credits for costs of providing auxiliary aids and services.
What are some of the new options now available for providing interpreter services?
A new option for providing in-office interpreter services is “video remote interpreting (VRI)”. With VRI the interpreter is not physically present in the office but provides interpreting services using video conferencing technology. This equipment can be a computer with a web camera and microphone/headset or possibly a videophone. The interpreter listens to the health care provider via a headset and the patient and interpreter can see each other on the screen. Advantages of VRI are that it can often be accessed immediately eliminating last-minute fees, minimum time fees can be lower than for regular interpreting, and there may not be a fee for travel.
What should I do in my practice to ensure that we comply with the ADA?
Health care providers and their patients would both benefit from a clear “Effective Communication Policy” for the practice. This policy would notify patients who are deaf or hard of hearing that the practice will, free-of-charge, arrange for appropriate auxiliary aids and services, including interpreters, needed for effective communication at all appointments or when requested by the patient. The policy would also state that the determination of which appropriate auxiliary aids and services are necessary will be made by the practice in consultation with the patient where possible. The assessment will take into account all relevant facts and circumstances, including the nature, length and importance of the communication at issue and the patient’s communication skills and knowledge. The policy may also state that the request be made at the time an appointment is scheduled. A “Communication Assessment Form” could be developed to facilitate the provision of the needed auxiliary aids and services.
The take home message
Effective communication between the health care provider and the patient is crucial to the delivery of safe and effective health care, and, for patients with hearing loss, this may require that the health care professional provide appropriate aids and services, including interpreters. These auxiliary aids and services must be provided to ensure that communication with patients with hearing loss is as effective as communication with others.
Resources
Video Remote Interpreting Services (examples)
Sign On - http://signonasl.com/home.html
Pine Tree - http://www.pinetreesociety.org/interpreting_vri.asp
Example DOJ settlement with a dental office - http://www.ada.gov/moddentpro.htm
Legal review of effective communication obligations - http://www.gpmlaw.com/uploadedFiles/Resources/Articles/Providing-for-the-deaf-hard-of-hearing-under-the-ADA.pdf
Contractors providing ASL Service in Washington State- http://www.dshs.wa.gov/hrsa/odhh/interpcon.shtml
July 2010 Newsletter Main Page