The drums of war are pounding. Last January a disability advocate from Florida, Marc Dubin, published a short article titled “What Doctors (and Their Office Managers) Need to Know About Patients With Hearing Disabilities and Interpreter Services.” He pointed out the obvious; that is, that doctors cannot discriminate against the deaf. On March 19 of last year the Annals of Internal Medicine published and academic article on problems with care of the disabled. On May 23 the New York Times followed it with article titled “Disability and Discrimination at the Doctor’s Office” by Dr. Pauline Chen in which she described both the difficulties doctors may have treating disabled patients and the consequences to the disabled when they don’t get the right treatment. In July the Department of Justice sued a doctor in Florida based on alleged discrimination against the deaf. This was merely a continuation of its “Barrier-Free Health Care Initiative” that earlier in the year lead to a number of settlements with medical facilities. Of course when every DOJ “initiative” is a plan to investigate and sue businesses of one kind or another. Finally, just a few weeks ago the Department of Justice published its Guidance on Effective Communication.

There is plenty to worry about in these developments. Private attorneys advertise as advocates for the deaf, which means they believe there is money in litigation. High profile settlements by hospitals in cases brought by the deaf are an example to those who want to litigate, and a few deaf serial litigants have appeared. Most significant, however, is the DOJ Guidance, which seems to impose absolute requirements that many doctors and dentists will not be able to satisfy without crippling expense. It starts with this statement:

In a doctor’s office, an interpreter generally will be needed for taking the medical history of a patient who uses sign language or for discussing a serious diagnosis and its treatment options.

That’s right, no matter how small your practice and no matter how few and far between deaf patients may be, an interpreter is “generally” required.

The DOJ Guidance does note that there is an “undue expense” exception and that it may be permissable to require advance notice that an interpreter is needed, but advocacy groups, many of which shape the perception of what the law requires, tend to be more absolute, saying things like:

Hospitals, clinics, and mental health centers are covered by these laws and must also provide a qualified interpreter if needed and you are a patient, patient’s spouse or parent.

Marc Dubin, the advocate mentioned above, puts it the same way in a list of things he believes businesses should know: “In most cases, people who are deaf need a sign language interpreter to communicate with you, and you need to hire one.”

It’s also a fact that an “undue burden” defense has little or no meaning in the real world of litigation. Most businesses, including doctors, cannot afford the tens of thousands of dollars in legal fees they would have to spend winning a case based on an undue burden defense, especially since the DOJ notes that the availability of the defense might change every year depending of the financial condition of the defendant.  The plaintiff’s bar is well aware that the very existence of a lawsuit will likely force a settlement, regardless of the merits.

The take-away is simple. Doctors and other medical professionals need a plan for handling patients with hearing impairments and a policy that implements that plan. The plan will have to include providing an interpreter, although it may require advance notice. That means, of course, finding a service that can provide interpreters on short notice for short periods of time.  Medical professionals also need to make sure they are equipped to handle TRS phone calls from those with hearing impairments (see my January 13, 2010 blog on the obligation of professionals to handle TRS calls) . Both of these will require time and effort, but when you’ve got a target painted on your back making sure you comply with the law is a good idea.