AUG 9 1993

The Honorable Thomas Andrews

Member, U. S. House of Representatives
136 Commercial Street
Portland, Maine 04101

Dear Congressman Andrews:

This letter is in response to your inquiry on behalf of

your constituent, Dr. John W. Wickenden of Rockland, Maine,
regarding the cost of providing 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 physicians to furnish appropriate

auxiliary aids and services where necessary to ensure effective
communication with individuals with disabilities. A physician
may not impose a surcharge on any particular individual with a
disability to cover the costs of measures, such as providing
auxiliary aids, that are required by the ADA. These provisions
appear in sections 36.301(c) and 36.303 of the enclosed ADA
title III regulation, at pages 35596 and 35597, respectively. Also
enclosed is the Department's Title III Technical Assistance
Manual, which may provide further assistance to your
constituent. Pertinent discussion may be found at pages 22 (surcharges)
and 25-28 (auxiliary aids).

What constitutes an effective auxiliary aid or service

will depend upon the unique facts of each situation, including the
length and complexity of the communication involved. For
example, in some instances a doctor may satisfy the auxiliary
aid or service requirement by using a note pad and written
materials where a deaf patient is making a routine office visit.
cc: Records, Chrono, Wodatch, Magagna, Yang, McDowney, MAF, FOIA
udd\yang\congress\andrews

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By contrast, a discussion of whether to undergo major surgery

will generally require the provision of an interpreter. Other
situations may also require the use of interpreters to ensure
effective communication, depending on the facts of the
particular case. Further discussion of this point may be found on page
35567 of the enclosed regulation.

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

interpreter must be absorbed by the doctor in the limited
circumstances when an interpreter is necessary. However, as
provided in section 36.303(f), a doctor is not required to
provide any auxiliary aid that would result in an undue
burden. The flexibility of the auxiliary aids requirement, the undue
burden limitation, and the ability to spread costs over all
patients should minimize any burden on the medical profession.

Dr. Wickenden's letter raises a specific question involving

the use of interpreters. On one occasion, the family of a deaf
patient made its own arrangements for a sign language
interpreter, without giving the doctor the opportunity to make
his own contractual arrangements for a qualified interpreter.
Dr. Wickenden reports that the Maine Department of Human
Services told him that he had no alternative but to accept, and pay
for, the interpreter for whom the family had arranged. Of course,
if that is a requirement of state law, the constraints experienced
by Dr. Wickenden would have emanated from state and not Federal law
and, thus, should be taken up with appropriate state officials.

However, if the Maine Department of Human Services was

purporting to describe the requirements of Federal law, it did
so incorrectly. The title III regulation does not contemplate that
patients who are deaf may unilaterally decide on the
appropriate type of auxiliary aid, make arrangements for a particular
deaf services provider to furnish the aid, and then bill the public
accommodation for the services. Instead, doctors may determine
how best to provide effective communication to their patients,
and may themselves arrange for the necessary auxiliary aids or
services. Of course, the needs and wishes of the patients
should be taken into account in determining what kind of auxiliary
aid is necessary to provide effective communication. Please refer
to the enclosed January 1993 Supplement to the Department's Title
III Technical Assistance Manual at page 5 for further discussion.

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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
01-02491

THOMAS H. ANDREWS
MEMBER OF CONGRESS
FIRST DISTRICT MAINE

WASHINGTON OFFICE
1530 Longworth Building
Washington, DC 20515-1901
(202) 225-6116 CONGRESS OF THE UNITED STATES
HOUSE OF REPRESENTATIVES
DISTRICT OFFICE
136 COMMERCIAL STREET
PORTLAND, ME 04101
(207)772-8240
TDD (207)772-8240
1-800-445-4092

April 12,1993

Toni Davenport
Director
Congressional Affairs Division
Health Care Financing Administration
1555 Parklawn Building
5600 Fishers Lane
Rockville, MD 20857

Dear Ms. Davenport:

Enclosed is a copy of a letter I recently received from Dr. John Wickenden

concerning the implementation of provisions of the Americans With
Disabilities Act with respect to reimbursement for interpreters.

According to Dr. Wickenden, the Maine Department of Human Services has

interpreted the ADA to require that physicians accept and pay for
interpreters contracted for by the patient Dr. Wickenden is concerned that
this will indirectly reduce access to health services for disabled
individuals because of the high, direct costs to physicians. In his
particular case, he estimates that the cost of an interpreter for one patient
could exceed $1,000, for which Dr. Wickenden will not be reimbursed.

I would appreciate your review of this situation. As you may know,

Congressman Andrews was a strong supporter of the ADA, and this office is
committed to seeing it work. We would be concerned if provisions of the law had
the unintended effect of actually reducing access to health services.

Please direct your response to me at the Portland address listed above, and
don't hesitate to let me know if you require additional information.
 Sincerely,

Laurie Lemley
Special Assistant to
Representative Thomas H. Andrews

Enclosure
01-02492

PENOBSCOT BAY ORTHOPAEDIC ASSOCIATES

PENOBSCOT BAY PHYSICIANS' BUILDING
GLEN COVE, ROCKLAND, MAINE
04841

JOHN W. WICKENDEN, M.D. Telephone 596-6653

Diplomate American Board Orthopaedic Surgery 1-800-640-0707
Fellow American Academy of Orthopaedic Surgeons

1 February 1993

Congressman Thomas H. Andrews

U.S. House of Representatives
Washington, DC 20510-1901

Dear Congressman Andrews:

Your commitment to the disabled is well known to me. I support it.

I believe that my commitment is similar to yours. I am a "liberal
Democrat." I have worked for you and I have lobbied for the
Americans with Disabilities Act.

In the context of that background, please weigh my comments.

An experience last week has convinced me that the regulations with

which the ADA is implemented need fine tuning.

A deaf man made an appointment in my orthopedic surgery office.

His family notified me that they had retained a deaf services
interpreter from Portland. They did not give me the opportunity to
provide a qualified interpreter. The Maine Department of Human
Services told me that I had no alternative but to accept, and pay
for, the interpreter for whom they had arranged. Thereby, the
man had an orthopedic consultation (#99202) for which my fee is
$57.00. Medicare will approve a payment of $34.75. The interpreter
will bill me at $28.00 an hour. With travel to and from Portland,
my cost for the interpreter will be $140.00 (for which I can seek no other
remuneration). Therefore, I will be paid $34.75. In return for
that payment I will have a direct cost of $140.00 and an indirect cost
of another $22.25. If this man comes to surgery (as may well happen)
it could cost me well over $1,000. for interpreter services. Moreover,
Medicare will not, even reimburse me an amount which would pay the
overhead costs for a patient who did not pose this additional burden.

Even without the ADA, I don't collect any take-home money for caring for
Medicare and Medicaid patients. I can't live with the many mandates of the
government. I can't shift enough charges to my "paying patients."

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