Presentation To The Medical Accessibility Task Force

Selected excerpts of Bob Mather Presentation to Medical Accessibility Task Force
Robert Mather, Attorney for the US Department of Justice, Civil Rights Division, Disability Rights Section

January 27, 2006
Winter Park, Florida

** DISCLAIMER: The following represents unedited excerpts of C.A.R.T., Communication Access Realtime Translation, which is used in order to facilitate communication accessibility. The text should not be relied upon for complete accuracy, nor used as a verbatim transcript.  Because this document has not been edited, there may be additions, deletions, and/or words that did not translate correctly. **

The concept behind the ADA is that you must recognize Americans as equal, not that someone has special needs or has special services that needs to be provided.  Who is protected by the ADA?  Patients, of course.  What about family members or companions or spouses of patients who are protected?  Yes, they are all covered.  In other words, suppose if you have an adult son who goes into an emergency room situation, and the mother of this adult son is deaf and uses sign language to communicate.  The deaf mother comes into the ER to ask questions about her hearing adult son.  And the hospital says, sorry, we can only provide interpreters for patients.  That is wrong.  Interpreters are to be provided for whomever requires interpreting services to communicate effectively.  We have a New York case where a husband and wife had gone to the hospital.  The wife had a heart problem and diabetes, and so they went to the hospital.  Both were deaf, and I believe the wife stayed for about three weeks.  And the hospital refused to provide interpreters.  They wanted to write notes back and forth.  So the hospital would communicate with the husband, and the husband didn't understand what was being written, so had to fax his notes that he got from the hospital to his hearing children so that his hearing adult children could explain what the notes meant.

(On hospital-sponsored programs)
The ADA applies to all, and I mean all programs, services, whatever the hospital provides, whether it's free or not.  They have to make sure that their programs are accessible to individuals with disabilities as well.

People asked HHS, well, does a qualified interpreter have to be certified?HHS said no.  A qualified interpreter does not need to have certification.  So what about interpreter skills?  How do you measure that?  How do you measure whether an interpreter is qualified?  So when the ADA was passed and we established the regulations, we received comments from the public on the definition of a qualified interpreter, and we had a large percent of the comments that we received under the Title II and III regulations that dealt with interpreting services.  Many, many, many complaints that people did not know how to determine if someone was qualified.  So they asked for us to clarify that in our regulation and so we did that, in the Title II and III regulations.What we said is that an interpreter must be able to interpret both receptively and expressively, accurately, effectively and impartially and use specialized vocabulary as necessary.

So the comment arose whether family members or friends could be used as interpreters.  And the hospitals and other agencies would often allow people who spoke foreign languages to use their parents or family members which is really a conflict with what we said in the ADA.  So hospitals were confused.  So we made it clear that the ADA has a different requirement as opposed to LEP programs.  And I don't want to get into the LEP programs, but it is important that hospitals and doctors understand that the requirements for LEP is different than they are under the ADA.  We wanted to make it clear that hospitals cannot ask family members to interpret.  That is forbidden.   It's very awkward for a family member or even the patient -- for example, we had a case in New York, Parkway hospital case where when the adult children entered the hospital and were concerned about their mother who was the patient and father, the hospital told the adult children to interpret for their deaf father.  And the children said that they could not do that.  And the hospital, of course, accused the children of being uncooperative.  That case was the one that just settled for actually 125,000 dollars to the adult children for forcing them to be included or to be involved in providing interpreting services.  So that is really a clear statement, that children or family members cannot be asked by the hospital to interpret.

(On accommodation preference)
Under Title II of the ADA, cities and state and local governments and hospitals are required to ask the person for their preference.  And that's whether it's for the proper auxiliary aid, and they must honor that person's request unless the state or local government agency can show that another equally effective method will achieve effective communication.

But the difference between Title II and III is that the private hospitals are not required to ask the person for their preference.  And they're not required to honor their preference.  But they are strongly encouraged to consult with the patient or individual with the disability as far as what the appropriate auxiliary aid would be.  And it makes sense for the hospital to ask them because not all auxiliary aids work for every individual.  It's not one size shoe fits all.  So you have to ask each individual, and you have to ask the doctors, please work with everyone to ensure effective communication.

The difference between writing notes and interpreters, there's really a criterion of four points:  What is the purpose of the communication?  That's number one.  What is the length of the communication?  That's number two.  How many people are involved?  That's number three.  And the exchange of information and the depth or complexity of it.  So those are the four steps.  So that's how you determine whether an interpreter or writing notes, let's say, would be appropriate.

Probably the biggest problem that we've faced is the attitude of doctors and hospitals towards the cost of interpreting services or the cost of CART or what have you.  If a patient comes in for a visit, and let's say the service for that visit is 50 dollars for a health assessment or whatever the meeting may be.  And then they look at the cost of an interpreter.  I don't know Florida state -- let's say 55 dollars, because it's a minimum of two hours.  And I don't know what it is, but let's just throw that out there.  So the doctor says, well, where's my profit?  That's an undue burden for me.  Well, remember at the beginning I had talked about the fact that all businesses must see interpreting services and auxiliary aids to be not a special thing, but just part of their overall services?  So what the doctor or hospital should have done is to plan within their budget on their annual budget, same way as what is the cost for certain space, what is the cost benefit for other things, bonuses for staff, costs for interpreting services and foresee over the next two years what their cost would be, and split that cost among all the patients.  That's really how the doctors or the hospital should view the cost of interpreting services.  Not on a per-patient basis.  The second point is also that they have a tax break for hospitals or small doctor's offices.  There is a tax credit for the smaller businesses.  Or they can include it in business expenses.

As far as video interpreting services, it's a wonderful development.  We have several cases where hospitals used video interpreting services, and this is separate, of course, from VRS, video relay services.  What the video interpreting services would require is that they have a dedicated line, and that line cannot be shared with other computer use.  Otherwise, the picture will not have the quality and the motion of the signing will not be clear.  A lot of hospitals didn't understand that, if they use a shared line, that they wouldn't have good results.  They also used what they called a TV CART, some places use them.  They don't have a fixed location where the TV monitor would be placed.  For example, there might be some places that would set it up in one particular room.  Then they'd have to force a family member or a companion or patient to move to a specific room because that's the room that has the video interpreting services, and that is not generally effective.  Another issue is that the monitor itself must have a clear picture.  It has a good quality -- it needs to have a good quality picture so that the signs will be clear.  Some hospitals provide a so-so level of TV monitor.  And so that is a problem.  The staff need to be trained on how to properly use the equipment, and a lot of the staff just don't have the training, and they just don't know how to use it, even when they call to learn about it.  So when the hospital has VIS, they really need to understand all the standards that must be required.  They have to know how the equipment is used.  They have to be trained, for example, like in the ER room, the ER staff shouldn't need to search for the book, how to use it, because that would be a violation of the ADA because they are not providing an effective method to communicate.  That is probably going to be seen over the next several years.  And if the hospital does want to use VIS, then there will be standards that will be established for that.  Now, VIS may work in some situations and may not in others.  For example, many of the monitors cannot be adapted for patients that are lying prone on their back.  They can't see the TV or the TV monitor.  So you would need to have a contract interpreter come in that case.  A lot of times VIS can't be used in certain circumstances like in the x-ray room.  In that case you would need to have a contract with an interpreter to come in.  Unfortunately, many hospitals rely on video interpreting as their default mode for communication.  It can work, but it doesn't always work.

CART, like Chris had been talking about this morning, many people don't understand how CART works.  And yes, CART is one of those services that a hospital may need to provide or the doctor may need to provide depending on the circumstances.  It's good for using on a one-to-one basis.  You can even have a laptop wherepeople could type back and forth to each other or perhaps a TV monitor, a laptop, let's say, in this situation wouldn't work because it's four or five people, or maybe in a conference room having CART like this on a large screen where everyone could see, that would work.  There's all different types or levels of CART for people to consider.  And that is for people who do not use sign language, to communicate.

(On captioning)
It's very important that the hospital look at any produced programs, any programs coming out that they have made, whether it has open or closed captioning.  If they have a written script, that may not be effective.  It's difficult to read while you're trying to watch the television.  So if a hospital purchases new videos or DVDs or things like that, they must make sure it includes captions.  They must also make sure that, if they own a program, like if they -- if they have their own produced television program like Sibley hospital welcomes you to blah, blah, blah, where they have this large monitor in the lobby, they need to make sure that has captioning as well.

The obligation begins when the hospital or the staff become aware or they should have known that a person has a disability.  Then the hospital must inform them that they have the right to have auxiliary aids and services or other services.  We have court cases that have developed what they call a communications assessment form as part of an intake process so that you have a form that you can actually check off for in a hospital situation, both the patient and perhaps the family member or companion.  If they check interpreting services or oral interpreting services, whatever is checked, whether they want a TTY or assistive listening device, what have you, the staff should fill out that type of form as soon as the person with the disability arrives.  At any time if the staff sees a person who is deaf, they must let them know that the auxiliary aid services are provided or point them to the sign to be able to read about it.  We do encourage hospitals, if they have a web site, to also include information about the provision of auxiliary aids and services as part of their compliance program.