February 2001 General E-Bulletin

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Policy Letter Issued by the Department of Justice on Alternate Dispute Resolution and
Responsibilities of a Physician to Provide Auxiliary Aids and Services

Questions posed:

Does the ADA encourage the use of alternative dispute resolution?
How does the Department of Justice determine whether alternative dispute resolution is appropriate in a particular case?
How should a physician determine what constitutes an appropriate auxiliary aid or service?

ADA Encourages Alternative Dispute Resolution

Congress specifically encouraged the use of alternative dispute resolution in the ADA. Further, the DOJ encourages the use of alternative dispute resolution in the regulations promulgated pursuant to Title III. In addition, the DOJ encourages the use of mediation as well as other alternative dispute resolution techniques.

DOJ Reviews Cases To Determine If Alternative Dispute Resolution Is Appropriate

At times, the question of whether a case is appropriate for alternative dispute resolution will be controlled by federal appellate and district court rules. However, once a litigant or potential litigant requests alternative dispute resolution, a division manager will review the case to determine whether it is appropriate for alternative dispute resolution.

Physician Should Consider Complexity Of Communication In Selecting Auxiliary Aids And Services

A physician should consider both the length and complexity of the communication. In some instances a note pad and written materials will enable the physician to communicate effectively with a patient. In other instances, an interpreter may be the only effective means of communication. While the regulations under Title III permit the physician to determine the type of auxiliary aid that is required, the physician must first consult with the patient to ascertain what auxiliary aids and services will actually be effective.

This letter is in response to your inquiry regarding the case, Drew, et, al. v. Merrill and Perinatal Associates, P.C., CA No. 99-810, on behalf of your constituent, Dr. Patrick A. Merrill.

The Department recently successfully mediated this matter.

Questions raised by Dr. Merrill are:

1) whether the Americans with Disabilities Act (ADA) specifically encourages the use of alternative dispute resolution (ADR);
2) how the Department of Justice determines whether a case is appropriate for ADR;
3) whether the monetary relief agreed to in the consent decree made sense in light of previous settlement agreements; and
4) whether a physician should be given an opportunity to determine if "effective communication" can occur.

When Congress enacted the Americans with Disabilities Act, it specifically encouraged the use of alternative dispute resolution (ADR). Section 513 of the ADA provides:

Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, fact finding, minitrials, and arbitration is encouraged to resolve disputes arising under. . .[the ADA]...

The Division is committed to the active use of mediation and other ADR techniques in appropriate cases. In each case we consider whether the case is an appropriate one for ADR. Of course, Division practice will at times be controlled by rules of federal appellate and district courts. When a litigant or potential litigant makes a request for ADR, a Division manager will review the case and determine whether the case should or should not be subject to ADR.

Before the Department initiates litigation under title III of the ADA, it is our practice to notify opposing parties to set forth the basis upon which we believe there is a violation of the ADA and to encourage resolution. In this case, the Assistant U.S. Attorney and an attorney from the Civil Rights Division spoke to Dr. Merrill's counsel, and exchanged correspondence explaining the ADA requirements for effective communication and our intent to participate in the ongoing litigation. In fact, the Department delayed the filing of a Complaint in this matter because the parties continued to work toward settlement through the attorneys. As a result of those conversations, we were able to resolve a number of issues including agreement on a policy on sign language interpreters and staff training. we were not able to resolve all the issues in this case. When it appeared that the parties had gone as far as possible without an outside mediator, the defendants' attorneys recommended formal mediation. We readily agreed. The parties agreed upon a mediator and went to mediation to resolve the remaining issues in the case.

The monetary relief of $25,000 was agreed to by both the private plaintiffs and defendants in this case. The proper amount of damages is a very fact specific determination and in this case the Department concurred in the final amount. This amount was not excessive given the circumstances of the case. Prior to the negotiations, we had provided Dr. Merrill's counsel with examples of recent damage awards in other cases handled by the Department. For example, in a consent decree with 14 hospitals in the State of Connecticut concerning the provision of sign language interpreters, the hospitals paid $333,000 in compensatory damages to 49 persons with individual amounts ranging from $1,000 to $25,000.

Finally, regarding how a physician can determine how to ensure effective communication, title III requires physicians to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. The purpose of the requirement is to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.

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. During some doctor's visits a note pad and written materials may be sufficient to permit effective communication, for instance, when a physician is explaining possible side effects resulting from a flu shot. During other visits, however, the use of handwritten notes may be extremely slow or cumbersome.(e.g., where information to be conveyed is important, lengthy, or complex). In these situations, the use of an interpreter may be the only effective form of communication. The title III regulation requires the doctor to decide what type of auxiliary aid to provide, but the doctor is first required to consult with the client or patient and determine what auxiliary aids will actually provide effective communication.

While the nature of medical services is considered one factor in determining the effective means of communication, the focus should be not only on the nature of the services, but also on the type of communication among the physician, patient, and companion. 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 among the physician, patient and others.

Project Civic Access

http://www.usdoj.gov/crt/ada/civicfac.htm

Attorney General Janet Reno asked the Disability Rights Section(DRS) of the Department's Civil Rights Division to ensure that cities are addressing important access issues. In response, DRS began a review of local and state governments to develop technical assistance materials so that communities could immediately begin to come into full compliance with the requirements of title II of the ADA.

The project includes 18 localities and two states against which individuals with disabilities had filed administrative complaints with DRS. DRS selected 35 additional sites in which to conduct compliance reviews - including a community in each remaining state, two communities in Puerto Rico, and two departments of the District of Columbia. The compliance reviews were undertaken on the Department's own initiative under the authority of title II and, in many cases, section 504 of the Rehabilitation Act of 1973 because the governments receive financial assistance from the Department and are prohibited by the Act from discriminating on the basis of disability.

Compliance review sites were chosen based upon the Department's desire to visit every state, the population of the site, and, in some cases, its proximity to a university or tourist attraction. The majority of the compliance reviews occurred in small cities and towns, because they represent the most common form of local government.

DRS requested and received data from the state and local governments and visited 50 of the 55 sites from October 1999 - July 2000 to conduct a physical survey of facilities owned or leased by the government; of polling places; and of 9-1-1 systems.

Local and state government officials have responded favorably and cooperated fully in the Department's reviews. They were timely in submitting records as requested, made themselves available to answer questions during the on-site visits, and escorted investigators throughout their communities so that facilities surveys could be accomplished quickly and efficiently. Most importantly, these officials have indicated a willingness to effect changes to make their programs and services accessible to persons with disabilities.

During the investigations, staff of the Disability Rights Section reviewed compliance with most ADA requirements. The Section has found that the vast majority of communities are aware of their ADA obligations and have made progress in meeting them. Settlement agreements resolve the balance of outstanding issues. Typical issues addressed during the Department's investigations include: physical modifications of facilities to improve accessibility. Facilities include city and town halls; police and fire stations and sheriff departments; courthouses; centers for health care delivery, childcare, teen and senior activities, conventions, and recreation; animal shelters; libraries; baseball stadiums; parks (including ice skating rinks, public pools, playgrounds, ball fields and bleachers, band shells and gazebos).

The agreements secure the following:

accessible parking
accessible routes into and through the facilities
accessible rest rooms, drinking fountains, and telephones
accessible service counters and concession stands, or the provision of services at alternate, accessible locations
accessible bathing facilities at public pools
physical modifications to polling places and/or the provision of curbside or absentee balloting;
permanent and conspicuous notice to the community of their ADA rights and the government's ADA obligations;
establishment of an ADA grievance procedure where none existed in communities employing more than 50 persons;
establishment of delivery systems and time frames for providing auxiliary aids (qualified sign language interpreters and alternate formats (Braille, large print, cassette tapes, etc.);
installation of assistive listening systems in assembly areas (e.g., legislative chambers, court rooms, municipal auditoriums);
strengthening of 9-1-1 emergency services through the acquisition of additional text telephones (TTY's) to achieve a 1-1 ratio of TTY's and answering positions, training to recognize "silent calls", and accountability through performance evaluations and discipline of employees;
better telephone communication between the government and citizens with hearing or speech impairments through the acquisition of additional TTY's and/or utilization of the state relay service, official publication of TTY/relay numbers, and training of employees;
adoption of procedures for relocating inaccessible activities to accessible locations upon request (e.g., City and Town Council meetings, municipal and county court proceedings).

Settlement negotiations are underway in an additional 10 states. On-site investigations have concluded in all 50 states, plus the District of Columbia and Puerto Rico. Those communities not already in negotiations and with which agreements have not yet been reached will be notified by the end of October of the changes they need to make to make their jurisdictions accessible.

During the same time that DRS staff conducted investigations, the Section developed two technical assistance booklets, entitled "Americans with Disabilities Act: ADA Guide for Small Towns" and "The ADA and City Governments: Common Problems." Both review the ADA's requirements and offer practical examples of ways they can be met. The two documents and all settlement agreements that emanate from Project Civic Access can be found on the ADA home page at www.usdoj.gov/crt/ada/adahoml.htm.

Together they form a blueprint that can be used by state and local governments to evaluate their programs, services and activities in order to ensure the opportunity for full participation by persons with disabilities.

Welcome to the General E-mail bulletin distribution list of the Southwest ADA Center. The bulletin is distributed monthly to provide subscribers with an update on the Americans with Disabilities Act events, trainings, resources, agency rulemaking and enforcement activities. We also want to use the bulletin as a vehicle to post information on any ADA-related events your organization or group are planning in your state or community. Please feel free to forward us any information about your event(s). They will be posted the following month.

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The mission of the DLRP on the ADA is to promote proactive compliance with the ADA in Texas, Arkansas, Louisiana, New Mexico and Oklahoma. Based at ILRU (Independent Living Research Utilization), a program of TIRR in Houston, Texas, the DLRP is funded by NIDRR, an agency of the Department of Education, under grant #H133D60012, to provide information, materials, and technical assistance on the ADA. NIDRR is not an enforcement agency.

The information herein is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.

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