OCT 18 1993

The Honorable E. Clay Shaw, Jr.

U.S. House of Representatives
2267 Rayburn House Office Building
Washington, D.C. 20515

Dear Congressman Shaw:

This letter is in response to your inquiry on behalf of your

constituent, Dr. Steven Rosenberg, regarding a physician's
obligation to provide auxiliary aids or services for persons with
disabilities.

The Americans with Disabilities Act (ADA) authorizes the

Department of Justice to provide technical assistance to
individuals and entities having rights or obligations under the
Act. This letter provides informal guidance to assist your
constituent in understanding the ADA's requirements. It does
not, however, constitute a legal interpretation and it is not
binding on the Department.

The ADA requires public accommodations, including

physicians, to furnish appropriate auxiliary aids and services
where necessary to ensure effective communication with
individuals with disabilities. In determining what constitutes
an effective auxiliary aid or service, a physician must consider,
among other things, the length and complexity of the
communication involved. For instance, a notepad and written
materials may be sufficient to permit effective communication
when a physician is explaining possible symptoms resulting from a
simple laceration. Where, however, the information to be
conveyed is lengthy or complex, the use of handwritten notes may
be extremely slow or cumbersome and the use of an interpreter may
be the only effective form of communication.

Use of interpreter services is not necessarily limited to

the most extreme situations--- for example, a discussion of
whether to undergo surgery or to decide on treatment options for
cancer. Further discussion of this point may be found on page
35567 of the preamble to the enclosed regulation. While the
nature of medical services is considered one factor in
determining what auxiliary aid is necessary for effective
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communication, the focus should be not only an the nature of the

services, but also on the type of communication between the
physician and the patient. Generally, interpreters are not
needed for routine office visits. However, the fact that an
office visit is characterized as routine does not necessarily
negate the need for interpreting services. For instance, an
interpreter may be required if a note pad does not facilitate
effective communication between the physician and an individual
who is undergoing a complete physical examination and related
testing procedures.

Under section 36.301(c) of the regulation, when an

interpreter or other auxiliary aid or service is necessary to
ensure effective communication, the physician must absorb the
cost for this aid or service. As provided in section 36.303(f),
however, the physician is not required to provide any auxiliary
aid that would result in an undue burden. The term "undue
burden" means "significant difficulty or expense." Undue burden
must be 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. Further discussion
of the meaning and application of the term undue burden may be
found in the preamble discussion of section 36.303, on pages
35567-35568.

In determining whether the provision of an interpreter would

result in an undue burden, the physician should consider not only
the fees paid for providing the medical service or procedure, but
also the overall financial resources of the practice. The
physician should consider other factors that would minimize the
degree of burden on the practice, such as the ability to spread
costs throughout the general clientele and the provision of tax
credits for costs of providing auxiliary aids (which is available
for eligible small businesses).
 The Department's Technical Assistance Manual for title III
(copy enclosed) at page 26, and the ADA's legislative history, as
described in the regulation's preamble, at pages 35566-35567,
strongly encourage consultation with persons with disabilities in
order to determine which particular auxiliary aid or service will
ensure effective communication. Not only will consultation
ensure that equal services are provided to individuals with
disabilities, it may also significantly reduce the costs of
providing such auxiliary aids or services.

Dr. Rosenberg's letter also raises the issue of whether a

public accommodation may charge patients requesting an
interpreter a cancellation fee when the patient cancels an
appointment after the physician becomes financially liable for
the interpreter service. A public accommodation is not permitted
to impose surcharges for auxiliary aids or services necessary for
effective communication, regardless of whether those aids or
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services are used or not. While we appreciate Dr. Rosenberg's
desire to avoid unnecessary expense, events may arise in an
individuals life that are beyond his or her control, such as
illness or business emergencies. Imposing the costs of
interpreter services in the event of cancellation under such
circumstances places the person in need of an auxiliary aid or
service at a distinct disadvantage relative to others in similar
situations. Of course, the ADA would not prohibit Dr. Rosenberg
from charging a standard cancellation fee for missed appointments
provided that the policy of charging cancellation fees is applied
uniformly to all patients.

Dr. Rosenberg's letter raises a specific question involving

use of interpreters concerning a deaf patient who made an
appointment and then demanded that Dr. Rosenberg's office provide
an interpreter. Clearly, the auxiliary aid provisions of the ADA
(cited above) do not contemplate that a person with a disability
can unilaterally decide on the appropriate type of auxiliary aid.
Further discussion on this point can be found in the enclosed
January 1993 update to the Department's Title III Technical
Assistance Manual (copy enclosed) at page 5.

I hope this information will be helpful to you in responding

to your constituent.

Sincerely,

James P. Turner
Acting Assistant Attorney General
Civil Rights Division

Enclosures

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