What ODs Need To Know About The Americans with Disabilities Act (ADA) And Effective Communication

ADA and optometrists

I will place the treatment of those who seek my care above personal gain and strive to see that none shall lack for proper care

About 70 percent of our daily routine during normal waking hours is spent communicating in some way. That is a large part of our day dealing with communication whether it’s reading, writing, talking or listening. What if you had a disability that affected how you received communication? What if you didn’t understand what was being presented to you?

There are approximately 48 million deaf and hard of hearing (HH) people in the United States and they are protected under the Americans with Disabilities Act. On social media, we have seen several physicians question whether an interpreter is needed, or worse, feel it’s not their obligation to provide an interpreter for deaf and HH patients.

The Americans with Disabilities Act (ADA) was passed in 1990 and established a series of measures to prohibit instances of discrimination on the basis of disability. The part of the ADA that we will focus on in this article is “Effective Communication.” What is effective communication by definition and what measures need to be taken to make sure you are in compliance with the law?

Effective communication through the eyes of the ADA

Effective communication is about getting your message across. You must get and keep your audience’s attention and make sure that they understand the idea you are trying to convey. Effective communication is focused on the audience or, in the medical setting, the patient.

The ADA requires that Title II entities (state and local governments) and Title III entities (businesses, non-profits and places of public accommodation such as medical offices) communicate effectively with people who have communication disabilities. Knowing this, what is the ADA’s definition of effective communication?

In short, the patient needs to understand the message you are trying to deliver. The goal is to ensure that communication with people with disabilities is EQUALLY as effective as communication with people without disabilities (1). For people who are deaf or HH, how is this achieved? In most cases, this is usually achieved in the medical setting by providing a sign language interpreter, using pen and paper or a printed script.

Unfortunately, most physicians fall short of providing effective communication to their deaf/HH patients.

When it comes to effective communication, the physician needs to consider the nature, length, complexity and context of the communication and the person’s normal method of communication (1). How does the patient communicate normally? This is important to know and understand. Do they communicate using sign language? Do they lip read and speak for themselves? Do they use hearing aids or use cochlear implants?

A lot of physicians believe they can just use pen and paper to satisfy the law, but this is only true if that is how the patient normally communicates. I will caution you that most deaf patients DO NOT communicate via this method.

In short, if a deaf patient normally communicates using sign language, especially in a clinical setting, then it is best to provide a sign language interpreter. This will ensure that you have met the ADA’s definition of effective communication.

Hiring a sign language interpreter

Let’s assume that the patient requests an interpreter for his/her eye examination. Where do you begin? First and foremost, search for one before you need one. The ADA requires a QUALIFIED interpreter. Search for and hire a nationally certified sign language interpreter and you will meet those standards.

You can find this information at the Registry of Interpreters for the Deaf, Inc (RID’s) website. From this site, you can find an interpreter that has his/her national certification. Holders of this certification have demonstrated general knowledge in the field of interpreting, ethical decision making and interpreting skills. They are also required to maintain their skills by completing 20 hours of continuing education (CE) each year.

One thing to note is the patient IS NOT responsible for finding, providing or even paying for an interpreter. The patient, however, may request or suggest an interpreter and if they are qualified, you can contact them, but you would need to vet them yourself. Ultimately, you are the person responsible for paying for the interpreter, so the interpreter should be of your choosing.

Another option to find a qualified or certified interpreter is to do an internet search for interpreting agencies in your area. The advantage to this is that the agency has already vetted the interpreter. Having a list of multiple interpreters or agencies on hand is advantageous in case there may be scheduling issues. Ultimately, they are responsible for sending you a qualified interpreter.

One thing to note is that if you do not hire a qualified interpreter, information may be misinterpreted which may lead to a professional liability case as well. Protect yourself and your practice legally.

Frequently Asked Questions

Q. Instead of providing a sign language interpreter, can the physician ask a family member to interpret for the patient?

A. No. The reason for this is three-fold. First, family members often do not possess sufficient sign language skills to effectively interpret in a medical setting. Second, family members and friends are very often too emotionally or personally involved to interpret “effectively, accurately and impartially” (2). It may also cause issues with patient confidentiality. Professional interpreters adhere to a strict standard of confidentiality and have an in-depth knowledge of medical terminology and meaning.

Q. Can the patient just read lips as an effective form of communication with the doctor?

A. No. A common misconception is that deaf people are good lip readers. Lip reading is a difficult skill to acquire. Even the best lip readers can only catch about 25-30% of what is being said which means your patients are only receiving about a quarter of the information you are providing. With that in mind, lip reading is not a very effective form of communication for most deaf or HH patients.

Q. I usually just write notes back and forth with the patient. Isn’t this an effective means of communication?

A. Maybe. Many deaf patients consider American Sign Language (ASL) to be their first language, not English. The grammar and syntax/sentence structure of ASL differs considerably from English. Remember, the ADA states that we need to provide “effective communication.” It may not be effective communication if the patient doesn’t understand English. Another thing to consider is that you may not be able to understand their writings in ASL. A deaf patient may be fine with this for short interactions such as scheduling an appointment, picking up glasses and adjustments but comprehensive exams and fittings should have an interpreter.

Q. I have a small optometric practice and this will cause an “undue” burden for my practice. Can I receive an exemption from having to provide an interpreter?

A. In most cases . . . No. An undue burden is something that involves a significant difficulty or expense. Providing an interpreter may cost more than what the patient spends at your office but with the low number of deaf patients your practice may see, it would be difficult to prove an undue burden or hardship. If your area has a large number of deaf/HH patients, for instance, being located near a deaf school, it may be more cost effective to schedule deaf patients one day a week or month and hire a dedicated interpreter.

Q. Will insurances cover the cost of an interpreter?

A. Yes and No. Most government plans like Medicare or Medicaid may cover the cost of the interpreter. As far as commercial insurances, most will probably not cover the cost but you can contact the patient’s insurance carrier and inquire. I have had several doctors state that some commercial plans will cover the cost of the interpreter so it is worth looking at.

Keep in mind that if you do file a claim with the commercial insurance and the claim is denied, you CANNOT pass that cost onto the patient. That could possibly lead to a case being filed under the Americans with Disabilities Act.

Q. Is hiring a Sign Language Interpreter tax deductible?

A. Yes. To assist businesses with complying with the ADA, Section 44 of the IRS Code allows a tax credit for small business and section 190 of the IRS Code allows a tax deduction for all businesses. This credit can cover 50% of the eligible access expenditures in a year (up to $10,250).

One particular legal case pertaining to effective communication

There have been many in the past, and there are current cases being tried under the Americans with Disabilities Act against doctors for not providing sign language interpreters, but this one . . . in particular . . . made a statement. One thing that needs to be stressed is that these are discrimination cases filed under the Americans with Disabilities Act. They ARE NOT malpractice cases.

In October 2008, one patient, Irma Gerena sued her rheumatologist, Dr. Robert Fogari, under the ADA for failing to provide the patient with an interpreter. Following a three-week trial, the New Jersey jury awarded this deaf patient $400,000 (including $200,000 punitive damages). The verdict is believed by some legal experts to be among the largest of its kind. It has created a precedent.

Once again, this is not a malpractice case so it is not covered under the malpractice policy. The practice would have to absorb the cost of the judgement. As a discrimination case under the ADA, all medical professions would be handled the same way under the law.

Last thoughts: the ADA and optometrists

In the end, providing a sign language interpreter is just a part of doing business. Remember, the IRS does allow for tax credits and deductions for this expense, so take advantage of it. It is also the right thing to do. In most cases, you will find that you may only need an interpreter for the initial exam and not for picking up glasses, adjustments or for scheduling appointments.

When doctors graduate from Optometry College, they pledge the Optometric Oath. Within the Oath, the optometrist pledges “that I WILL place the treatment of those who seek my care above personal gain and strive to see that none shall lack for proper care” (13).

When it pertains to the deaf and hard of hearing, it is time that we open our eyes, remove the barriers that limit our patients, and communicate effectively with them.

References

  1. “Effective Communication.” ADA Requirements: Effective Communication, U.S. Dept Of Justice, Jan 2014, www.ada.gov/effective-comm.htm. 14 Oct 2017.
  2. “Questions and Answers for Health Care Providers.”  Nad.org, National Association of the Deaf, 26 Dec 2016.  www.nad.org/resources. 14 Oct 2017

About Michael Hay and Kimberly Duncan

Michael Hay and Kimberly Duncan
Michael Hay has worked in all modes of practice including a military setting, corporate and private practice. Currently, he works at Crystal Clear Eye Associates of Florida, PA., a large commercial group practice in Jacksonville, Florida. Kimberly Duncan is a nationally certified sign language interpreter in the Jacksonville, FL area, and her area of expertise is in medical interpreting. She recently accepted an interpreting position with the Department of Homeland Security, more specifically with FEMA.

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