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The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
In this article, Bradley J. Muldrow, JD discusses important Americans with Disabilities Act (ADA) regulations and compliance practices for therapists to consider when providing services to patients with communications disabilities.
Breaking Down Barriers to Care How to Uphold Your ADA Responsibilities with Ease and Flexibility
Bradley J. Muldrow, JD Staff Attorney The Therapist November/December 2019
Discussions about compliance with the Americans with Disabilities Act (ADA) rarely address the experiences of people living with disabilities in America. Consequently, it is common for people to view ADA compliance as just another series of annoying regulatory hoops to jump through to avoid being sued. However, the ADA was enacted to “make it possible for people with disabilities to participate in the everyday commercial, economic, and social activities of American life.”1 This disconnect between the purpose and perception of the ADA presents particular challenges to the work of those within the helping profession.
ADA compliance decreases therapists’ risk of liability and reduces barriers to care that prevent people with disabilities from receiving invaluable mental health services. Ensuring that these services are accessible to people with disabilities is a critical issue given that people with disabilities are particularly vulnerable to abuse, bullying, and other traumatic experiences. This article will help therapists adopt cost-efficient ADA compliance practices and procedures so they can serve the often overlooked clinical needs of this population with ease and flexibility. To illustrate how these principles can be used in practice, the article will highlight important considerations for therapists when working with people who have communication disabilities. For an overview of ADA regulations, therapists should be aware of when working with individuals who have physical, intellectual, developmental, or other types of disabilities, review the Department of Justice’s free online ADA course for business owners entitled “Reaching Out to Customers With Disabilities.”
Note: This article addresses ADA regulations applicable to privately owned entities such as private practices, nonprofits, privately owned rehabilitation centers, etc. Public entities, such as public schools, agencies, and hospitals, are subject to a different set of ADA standards.
People with Disabilities Often Face Unique Clinical Challenges Requiring Therapeutic Intervention
Constantly having to debate with restaurant employees, medical professionals, and other service providers about one’s ADA rights in order to receive fair treatment can be humiliating and exhausting. Seeing the financial and emotional strains one’s disability related needs and services places on one’s family can be demoralizing. Coming to terms with the limitations presented by a disability developed as a result of a tragic event, or gradually over time, can be traumatic. The therapeutic process can provide much needed relief to people with disabilities who deal with these psychological and emotional burdens each day.
Moreover, a staggering number of people with disabilities are subjected to physical, sexual, verbal, or emotional abuse during their lives, but few of these individuals receive therapy to process these traumatic experiences:
In 2012, the Disability and Abuse Project (the “DAP”), an education and advocacy initiative sponsored by the Spectrum Institute,32 released the results of a large-scale national survey33 it conducted, analyzing “incidents of, response to, and attitudes about, abuse or crime victimization of children and adults with disabilities” (the “DAP Survey”).34 The results of the DAP survey are devastating and offer an eye-opening look at the prevalence of abuse and bullying towards people with disabilities, as well as the types of abuse and bullying they face. The results further indicate that most abuse and bullying victims with disabilities do not receive therapy to heal from the trauma they endured:
Over 70% of DAP Survey Respondents with Disabilities Identified Themselves as Victims of Abuse
Prevalence of Abuse by Disability Type Based on Reports from DAP Survey Respondents with Disabilities
Nearly 73% of DAP Survey Respondents with Disabilities Identified Themselves as Victims of Bullying
Based on Abuse and Bullying Reports from DAP Survey Respondents:
Therapists have the skills, experience, and compassion necessary to serve the unmet clinical needs of this population by developing cost-efficient ADA-compliant therapy services that are accessible to all.
ADA Compliance in Privately Owned Therapy Practices Article III of the ADA contains a nondiscrimination provision (the “Nondiscrimination Provision”) that prohibits individuals who own, operate, or lease places of public accommodation (“public accommodations”) from denying people with disabilities “full and equal enjoyment” of their public accommodations’ goods, services, and other benefits.2 The Nondiscrimination Provision states:
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”
The United States Department of Justice (“DOJ”) is charged with enforcing3 and promulgating regulations to implement4 Title III of the ADA, including the Nondiscrimination Provision. Per DOJ regulations, privately owned therapy offices (e.g. private practices, nonprofit counseling centers, etc.) constitute public accommodations subject to the Nondiscrimination Provision.5
Flexibility: A Key Component of ADA Compliance In most contexts, the ADA affords Regulated Parties a great deal of flexibility to identify and adopt reasonable compliance measures to accommodate people with disabilities. In its online training course for business owners entitled, “Reaching Out to Customers with Disabilities,” the DOJ discusses the flexibility of ADA compliance as follows:
The ADA does not spell out exactly what you must do in every situation. [The ADA] lets you decide what is reasonable based on how your business operates and what kind of accommodation the person needs because of his or her disability. The idea is not to exclude a customer by being unwilling to make an accommodation that is fairly simple and easy to make.39
Therapists’ Duty to Prevent Discrimination Against People with Communication Disabilities What Are Communication Disabilities? Effective clinical treatment requires effective communication. This maxim is particularly relevant when therapists work with clients who have “communication disabilities,” or disabilities that impact a person’s ability to “receive, send, process, [and/or] understand verbal and other [forms of] communication.”6 For example, a visual disability can impact the way a person receives communication expressed in writing or other visual mediums, and a hearing-related disability can impact the way in which a person receives verbal and other forms of auditory communication. Similarly, a speech-related disability can affect how a person processes and expresses communication.
It is imperative that therapists work with their clients to understand their clients’ unique communication needs prior to starting treatment. To accomplish this goal, therapists must be prepared to work with clients who utilize “auxiliary aids and services” to assist in expressing and receiving communication.
What Are Auxiliary Aids and Services? The term “auxiliary aids and services” encompasses a wide variety of assistive technologies and services that provide support to people with disabilities.7 To receive visual forms of communication, people who have visual disabilities often utilize auxiliary aids like magnifiers, monoculars, and pocket flashlights.
“I have a visual disability that makes it difficult for me to read small print or see objects from a distance with clarity. My auxiliary aid of choice is typcally my cell phone, which allows me to enlarge small print, zoom-in on faraway text, and illuminate text in dimly lit areas.” - Bradley Muldrow, JD
People who are deaf or hard of hearing (“Deaf/HH”) may use auxiliary aids such as phone volume amplifiers and hearing aids to assist them in receiving auditory communication, and people with speech-related disabilities sometimes use communication boards, text-to-speech devices, and other auxiliary aids to assist them in expressing communication. Auxiliary services provided by family and friends, schools, public accommodations, etc. also help people with communication disabilities to receive and express communication effectively. Common auxiliary services include printing written materials in larger font sizes for people with visual disabilities and providing qualified interpreters to assist people with hearing or speech-related disabilities.
It’s All About (Effective) Communication. Auxiliary aids and services can provide significant assistance to people with communication disabilities that radically enhances the quality of their lives, relationships,and careers. Conversely, challenges can arise when people with communication disabilities do not have access to the assistive devices and services they need for effective communication, a commonly occurring scenario. For instance, a person may forget her auxiliary aids at home. Alternatively, a person may not be able to afford the auxiliary aids or services she needs or may not even be aware of auxiliary aids and services that address her communication needs.
The ADA requires therapists to effectively communicate with people who have communication disabilities.8 In this context, “effective communication” occurs when a person with a communication disability can receive and express communication necessary for “full and equal enjoyment” of a therapist’s services.9 To comply with the ADA and provide effective clinical treatment, therapists must be aware of their ADA compliance responsibilities when people with communication disabilities seek therapy without the assistance of auxiliary aids and services. In these scenarios, therapists’ compliance duties depend on whether the individuals seeking therapy without auxiliary aids and services need such aids and services for effective communication.
Therapists’ ADA Compliance Responsibilities to People with Communication Disabilities Who Lack Auxiliary Aids and Services Scenario 1: When People with Communication Disabilities Do Not Need Auxiliary Aids and Services for Effective Communication with Therapists In this scenario, the ADA simply requires that therapists take “necessary steps” to ensure the individuals’ lack of auxiliary aids and services does not result in a denial of service or other form of ability-based discrimination.10 This flexible standard affords therapists broad discretion to take whatever steps might be necessary to avoid discriminating against people with communication disabilities who do not have access to auxiliary aids and services. Those steps may include providing individuals with auxiliary aids, such as communication boards, or auxiliary services, such as an agreement to print documents in larger font sizes. However, the Nondiscrimination Provision does not require therapists to provide such aids and services unless doing so would be necessary to facilitate effective communication with clients who have communication disabilities. To better understand these principles, consider the following example:
Appointment Calendars and Visual Disabilities: An Illustration Paula Parent approaches the reception desk in the waiting area of Linda LMFT’s therapy practice to schedule a few additional therapy sessions for her son. When Paula reaches the reception desk, she is unable to read information off the appointment calendar posted on the wall behind the desk. Paula informs the receptionist that she has a visual disability that makes it difficult for her to read text posted more than a few feet away from her, such as the text displayed on the appointment calendar. The receptionist offers to verbally provide Paula with Linda LMFT’s availability over the next two months or print a Word document containing this information in a large font size. Paula thanks the receptionist for his assistance and requests to receive the information verbally.
Though informal, this exchange reflects ADA compliance in action. Paula does not have access to auxiliary aids or services that would help her read the information posted on Linda LMFT’s appointment calendar. However, Paula does not need auxiliary aids or services for effective communication because she can effectively receive verbal information regarding Linda LMFT’s availability. Accordingly, the ADA only requires Linda LMFT to take “necessary steps” to ensure that Paula’s son is not denied Linda LMFT’s services or discriminated against in another way due to Paula’s lack of auxiliary aids and services. Linda LMFT’s receptionist satisfied his employer’s ADA responsibilities by verbally providing Paula with Linda LMFT’s availability.
Furthermore, since Paula can effectively receive scheduling information verbally, providing Paula with auxiliary aids and services to help her read from the appointment calendar would not constitute “necessary steps” to prevent ability based discrimination. Accordingly, the ADA would not require Linda LMFT to provide Paula with such aids and services. However, Linda LMFT and her employees can still choose to provide auxiliary aids or auxiliary services (e.g. providing large print scheduling information) if they choose to do so.
Exceptions The Nondiscrimination Provision requires therapists to take “necessary steps” to prevent ability based discrimination when people with communication disabilities lack auxiliary aids and services. However, the Nondiscrimination Provision does not require therapists to comply with this obligation by taking steps that are unduly burdensome or steps that would fundamentally alter the nature of the parties’ goods and services.
Exception One: ADA Compliance Does Not Require Therapists to Provide Unduly Burdensome Accommodations
Per DOJ regulations, when determining whether a proposed “necessary step” to prevent ability based discrimination would be unduly burdensome, therapists should consider factors such as the cost of the proposed accommodation and the therapy practice’s resources.11 That said, whether providing a particular accommodation would unduly burden a therapist in a given scenario is a legal question requiring a detailed analysis of the operations and finances of the therapist’s practice, as well as case law addressing similar accommodation requests. Prior to denying an accommodation request under this exception, therapists should strongly consider consulting with private attorneys specializing in ADA compliance or calling the DOJ’s ADA Information Line for a confidential consultation with one of the DOJ’s ADA Specialists: 800-514-0301 (voice), 800-514-0383 (TTY).
The DOJ describes this free service on its website as follows:
The Department of Justice operates a toll-free ADA Information Line to provide information and materials to the public about the requirements of the ADA.
ADA Specialists, who assist callers in understanding how the ADA applies to their situation, are available on Monday, Tuesday, Wednesday, and Friday from 9:30 a.m. until 5:30 p.m. (Eastern Time) and on Thursday from 12:30 p.m. until 5:30 p.m. (Eastern Time). Calls are confidential.
To get answers to technical questions, obtain general ADA information, order free ADA materials, or ask about filing a complaint, please call: 800-514-0301 (voice) or 800-514-0383 (TTY).40
Exception Two: ADA Compliance Does Not Require Therapists to Provide Accommodations That Would Fundamentally Alter the Nature of Their Services
In its online ADA education course for business owners, the DOJ provides the following examples to illustrate this exception:
“If a bookstore places special orders for customers, it should do so for all of its customers. A bookstore that does not place special orders for customers is not required to place special orders for customers with disabilities. This would be a “fundamental alteration” in the nature of the bookstore’s services.
A restaurant is not required to prepare special dishes for customers who have disabilities. This would be a “fundamental alteration” in the nature of the restaurant’s services. However, if it is easy to omit a sauce or ingredient from a dish that is listed on the menu, a customer can request that the item be omitted. This would not be considered a fundamental alteration.”
Scenario 2: When People with Communication Disabilities Do Need Auxiliary Aids and Services for Effective Communication with Therapists General Rule - DOJ regulations require that therapists “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.”12 This duty applies when therapists are not able to establish effective communication with people who have communication disabilities through alternate methods as discussed in the previous section. The DOJ also requires therapists to provide auxiliary aids and services necessary to facilitate effective communication with “companions” accompanying individuals seeking the therapists’ services, where appropriate.13
The DOJ defines a “companion” as: a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate.41
Exceptions - Therapists’ duty to provide auxiliary aids and services necessary to effectively communicate with clients or their companions is subject to the “undue burden” and “fundamental alteration” exceptions discussed in the previous section.14 However, if one of these exceptions applies, the ADA requires therapists to provide alternative auxiliary aids and services that would not produce such challenges, if such alternatives exist.15 Therapists should consult with private attorneys specializing in ADA compliance or call the ADA Information Line to determine whether the provision of auxiliary aids and services would be necessary for effective communication, unduly burdensome, or would fundamentally alter the nature of a therapist’s services in a given scenario. Without obtaining such consultation, denying an individual’s request for auxiliary aids and services on these grounds can leave therapists significantly vulnerable to civil liability and/or costly DOJ investigations.
The article will now highlight practices and procedures therapists should consider when effective communication with clients or their companions requires the provision of a common auxiliary service: interpretation services provided by “qualified interpreters” (“QI’s”).
Therapists’ Duty to Provide Qualified Interpreter (QI) Services Which Clients Require QI Services for Effective Communication? The DOJ requires therapists to provide clients and their companions with QI services when those services are necessary for effective communication.16 However, it is not prudent for therapists to assume whether an individual needs interpretation services for effective communication. For instance, a Deaf/HH client may have no trouble expressing communication by speaking and receiving oral communication via lip reading. Conversely, a client with a speech-related disability may rely on QI services to express communication, even though he has no trouble receiving auditory communication by hearing.
Similarly, a client’s communication needs during sessions may differ from the client’s (or their companion’s) communication needs outside of sessions. A Deaf/HH client may be able to receive more limited forms of verbal communication (e.g. checking in with a receptionist, setting up future appointments, etc.) through lip reading, but require QI services to effectively receive more detailed verbal communication provided during therapy sessions. It is imperative that therapists work with clients, and their companions where appropriate, to identify and understand these individuals’ communication needs prior to rendering treatment.
Who Must Pay for QI Services? A Client’s Health Insurance Plan May be Required to Cover the Cost of QI Services
The California Department of Managed Health Care (“DMHC”), the agency tasked with protecting the health care rights of consumers, requires California health insurance plans to pay for QI services when insureds with communication disabilities request them.17 When insured clients with communication disabilities inform therapists that they need QI services, therapists should contact the clients’ health insurance plans to inquire about the plans’ procedures for submitting QI service requests, or refer to the instructions provided on the plans’ websites. Check the corresponding endnotes to review the QI service request policies and procedures for the following California health plans: Cigna,18 Aetna,19 Kaiser Permanente,20 Blue Shield of California,21 Anthem Blue Cross,22 Sharp Health Plan, and 23 Health Net.24
Additionally, out-of-state health plans often operate under separate legal and/or contractual obligations to provide QI services to insureds with communication disabilities. For example, the federal Department of Health and Humans Services (“HHS”) requires health insurance plans receiving federal funds and health insurance plans participating in state-based health insurance marketplaces established pursuant to the Affordable Care Act to provide “appropriate auxiliary aids and services,” including remote or on-site QI services,25 to individuals with disabilities impacting their “sensory, manual, or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question.”26 This regulation applies to a substantial number of non-California health plans. However, even in the rare scenarios in which a client’s health insurance plan is not subject to a state or federal regulation requiring the plan to provide QI services to its insureds, the plan may agree to pay for such services in the policies it offers its insureds. Accordingly, whether an insured client requesting QI services is covered by a California or out-of-state health insurance plan, the client’s therapist should contact the plan to coordinate the provision of QI services.
A Client’s Benefit Program May be Required to Cover the Cost of QI Services
Similarly, benefits programs such as Medi-Cal, the California Victims Compensation Fund, employee assistance programs, and the federal Veterans Affairs Program may be subject to internal policies, government regulations, or contractual obligations to clients requiring the programs to provide QI services to program beneficiaries who need these services. Upon receiving QI requests from clients, therapists should contact these programs to determine whether the program is required, or will otherwise agree, to cover the cost of QI services. For example, in specified circumstances, Medi-Cal will reimburse the cost of QI services necessary for communication between Medi-Cal enrolled clients or their representatives (e.g. a Deaf/HH parent or guardian of a minor client) and: (1) individual Medi-Cal providers, or (2) Medi-Cal provider groups with less than 15 employees.27
It should also be noted that many health insurance plans and benefits programs are legally and/or contractually required to cover the cost of additional auxiliary aids and services, such as communication boards, hearing aids, document Brailling, etc. When clients or their companions require such aids and services for effective communication, therapists should consider using the procedures discussed above to determine whether the clients’ health insurance plans or benefits programs are required to cover these costs.
Compliance Tip 1: Therapists Should Not Respond to QI Requests by Directing Clients to Contact Their Health Plans or Benefits Programs
Doing so may confuse the clients, and potentially the DOJ, as to whether the therapists are denying the clients’ ADA protected rights to receive QI services necessary for effective communication. By coordinating with their clients’ health insurance plans or benefits program upon receiving QI requests, therapists can eliminate any doubt as to their intentions to comply with their ADA responsibilities.
Compliance Tip 2: If a Therapist Believes That a Client’s Health Insurance Plan or Benefits Program Has Improperly Refused to Pay for QI Services Necessary for the Client’s Treatment, the Therapist Should Pay for the Services and Contest the Health Insurance Plan or Benefits Program’s Denial Separately
If a client is denied therapy services because the client’s therapist, health insurance plan, and/or benefits program have refused to pay for QI services, the client may file a civil lawsuit or DOJ complaint against each of these parties.
Defending against such enforcement actions would likely be a greater financial burden to a therapy practice than a health insurance plan or benefits program. Accordingly, if the client’s health plan and/or benefits program refuses to pay for QI services necessary for the client’s treatment, the client’s therapist should strongly consider paying for the QI services and seeking reimbursement for those costs via the health plan or benefits program’s internal complaint system, small claims court, or another forum.
Compliance Tip 3: If an Insured Client is Paying Out-of-Pocket to Receive Therapy Services from an Out-of-Network Therapist, the Client’s Health Insurance Plan May Not be Required to Cover the Cost of the Client’s QI Services
An out-of-network therapist can certainly request that the client’s health insurance plan pay for any QI services necessary for the client’s treatment in this scenario, with the client’s written authorization. However, it is not likely that the client’s health insurance plan would agree to pay for QI services associated with clinical treatment the plan did not authorize (unless such a requirement is specified in the client’s contract with the health insurance plan). That said, if a client’s health insurance plan has agreed to reimburse the client for the out-of-network therapist’s services, the health insurance plan may be more likely to consider covering the cost of related QI services.
In All Other Scenarios, Unless an Exception Applies, Therapists are Required to Cover the Cost of QI Services
If clients’ health insurance plans, benefits programs, or other third parties are not required to pay for QI services necessary to facilitate effective communication between the clients (or their companions) and therapists, the therapists must cover these costs.28 However, therapists’ ADA compliance expenses, including costs necessary to provide QI services, remove architectural barriers, etc., may qualify the therapists to receive tax benefits. The DOJ provides the following information regarding these benefits:
“To assist businesses with complying with the ADA, Section 44 of the IRS Code allows a tax credit for small businesses and Section 190 of the IRS Code allows a tax deduction for all businesses.
The tax credit is available to businesses that have total revenues of $1,000,000 or less in the previous tax year or 30 or fewer full-time employees. This credit can cover 50% of the eligible access expenditures in a year up to $10,250 (maximum credit of $5000). The tax credit can be used to offset the cost of undertaking barrier removal and alterations to improve accessibility; providing accessible formats such as Braille, large print and audiotape; making available a sign language interpreter or a reader for customers or employees, and for purchasing certain adaptive equipment.”29
QI Services in the Therapeutic Context: Protocol and Etiquette
Who May Serve as a Qualified Interpreter? The Department defines the term “qualified interpreter,” as follows:
A “qualified” interpreter means someone who is able to interpret effectively, accurately, and impartially, both receptively (i.e., understanding what the person with the disability is saying) and expressively (i.e., having the skill needed to convey information back to that person) using any necessary specialized vocabulary.42
Finding a Qualified Interpreter The ADA National Network, an organization that provides ADA compliance information, guidance, and training provides the following counsel regarding how to obtain QI services:
The National Registry of Interpreters for the Deaf (RID) hosts an online database at www.rid.org, (link is external) or call 703.838.0030 (voice) or 703.838.0459 (TTY). You can also seek referrals from your state office for the Deaf and Hard of Hearing, local chapter of the National Association of the Deaf, or from the person requesting the interpreter. Start looking for an interpreter as soon as the need arises. It can be hard to find a qualified interpreter on short notice.43
When working with a client who is receiving communication assistance from a QI, therapists should remember to engage with the client directly, rather than treating the QI as the client’s care custodian or parent. Several years ago, Pamela Mang, a CAMFT member and member of the Deaf/HH community, had a painful experience when receiving QI services during a pediatric appointment for one of her children. Pamela has given CAMFT permission to share her story:
“Our pediatrician had been the doctor for our kids for almost a decade when I lost my hearing during my pregnancy with my youngest. She had always known our family, our kids, everything about them, and helped me to watch out for physical problems my kids might have. When I became deaf, I brought an ASL interpreter to my baby’s appointment with the same pediatrician, but all of a sudden, the pediatrician was talking to me like my brains had drained out of my head along with my ability to hear. The pediatrician treated my interpreter as if the interpreter was my caretaker, handing papers to the interpreter instead of me. I was shocked beyond belief.”
Providers’ interactions with patients who have communication disabilities can affect these patients in significant, often unforeseen ways. Accordingly, therapists should consider the following when working with individuals receiving communication assistance from a QI:
Adopting these and other supportive practices can help therapists ensure that they are treating people who receive communication assistance from QIs with dignity and respect. In doing so, therapists can strengthen their clinical relationships and reduce their risk of liability.
Relying on Interpretation Services Provided by a Client’s Relatives, Friends, or Other Individuals Accompanying the Client While therapists are not permitted to require people with communication disabilities to provide their own QI services when those services are necessary for effective communication, in some instances, people with communication disabilities may prefer to rely on interpretation services provided by their friends, relatives, or other individuals they know and trust. The DOJ prohibits therapists from relying on interpretation services provided by adults accompanying individuals with disabilities unless:
“(i) [There is] an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or
(ii) [The] individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.”30
Similarly, DOJ regulations prohibit therapists from relying on interpretation services provided by minors unless there is an “emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.”31
CONCLUSION People with disabilities regularly encounter discrimination, bullying, abuse, and other traumatic experiences that can lead to significant clinical challenges if left unaddressed. Monetheless, many people with disabilities do not receive the clinical treatment they need to heal from these experiences. By offering ADA-compliant clinical services, therapists can ensure that people with disabilities have access to mental health treatment that can change their lives.
In most circumstances, the ADA affords therapists the flexibility to identify simple accommodations that allow for effective communication and effective clinical treatment. Moreover, therapists can satisfy their ADA requirements with ease by working with their clients’ health insurance plans and benefits programs to provide clients with auxiliary aids and services necessary for effective communication. Where appropriate, therapists should contact private attorneys specializing in ADA compliance or call the DOJ’s ADA Information Line to understand their compliance responsibilities.
Brad Muldrow, JD, is a staff attorney for CAMFT. He also serves as a member of Disability Interest Group (“DIG”), a San Diego County Bar Association subcommittee dedicated to promoting the interests of people with disabilities in the legal field. Brad is available to answer member calls regarding legal, ethical, and licensure issues.
Special thanks to CAMFT Member Pamela Mang for contributing her clinical and cultural insights to this article.
Endnotes 1 See the Introductory Lesson in the DOJ’s Online Course “Reaching Out to Customers With Disabilities” at pg. 2: https://www. ada.gov/reachingout/intro2.htm
2 42 U.S.C. § 12182(a)
3 The DOJ enforces the ADA through lawsuits and settlement agreements (See https://www.ada.gov/enforce_footer.htm)
4 The DOJ is responsible for implementing Titles II and III of the ADA (See: https://www.ada.gov/regs_footer.htm)
5 The offices of healthcare providers, such as therapists are places of public accommodations subject to the regulations of the Nondiscrimination Provision when: (1) the offices are privately owned, and (2) affect commerce. (42 U.S.C. § 12181(7)(F). If a therapist provides therapy, or other goods or services, to individuals from a privately owned entity, that entity inherently affects commerce regardless of the therapist’s individual practices (See e.g. Pinnock v. International House of Pancakes Franchisee (S.D. Cal. 1993) 844 F.Supp. 574, 579 stating “…regardless of [Majid Zahedi, owner of a restaurant franchise]’s individual circumstances, he is subject to Commerce Clause regulation as a member of the restaurant industry.”)
6 See http://childabuseanddisabilities.safeaustin.org/aboutdisabilities/communication-disabilities/
7 28 C.F.R. § 36.303(b)
8 See Lesson Two of the DOJ’s Online Course “Reaching Out to Customers With Disabilities”: https://www.ada.gov/reachingout/lesson21.htm at pg. 1 (Stating “Under the ADA, businesses are expected to communicate effectively with customers who have vision, hearing, or speech disabilities, and are responsible for taking the steps that are needed for effective communication.”)
9 See Id.; 28 C.F.R. § 36.303(c)(1); 42 U.S.C. § 12182(a)
10 42 U.S.C. § 12182(b)(2)(A)(iii)
11 28 C.F.R. § 36.104
12 28 C.F.R. § 36.303(c)(1)
13 28 C.F.R. § 36.303(c)(1)
14 42 U.S.C. § 12182(b)(2)(A)(iii)
15 28 C.F.R. § 36.303(h)
16 C.F.R. § 36.303(b)(1); (c)(1)
17 See Lesson Two of the DOJ’s Online Course “Reaching Out to Customers With Disabilities”: https://www.ada.gov/reachingout/lesson12.htm https://www.dmhc.ca.gov/HealthCareinCalifornia/YourHealthCareRights/LanguageAssistance.aspx#ask
18 See Cigna’s California Language Assistance Program (CALAP) protocols: https://www.cigna.com/health-care-providers/resources/california-language-assistance-program
19 See the language services protocols listed on pg. 4 of Aetna Better Health of California’s Notice of Privacy Practices: https://www.aetnabetterhealth.com/california/assets/pdf/ NoticeofPrivacyPractices-1557-Eng-CA.pdf
20 See Kaiser Permanente Permanente’s Language Assistance Program protocols: http://info.kaiserpermanente.org/html/cpp_national/languageassistance.html?
21 See Blue Shield of California’s protocols for accessing interpreting services: https://www.blueshieldca.com/promise/media/pdf/cultural-and-linguistics/how-to-request-interpreterservices.pdf
22 See Anthem Blue Cross’ interpreting services policy for California providers: https://mediproviders.anthem.com/ca/pages/free-interpreting-services.aspx
23 See Sharp Health Plan’s Language Assistance Program protocols: https://www.sharphealthplan.com/for-providers/language-assistance-program
24 See Health Net’s language services protocols: https://www.healthnet.com/static/provider/unprotected/pdfs/ca/onboarding/HN_MCL_Interpreter_Services_17-695_FLY015048EO00.pdf
25 45 C.F.R. § 92.4
26 45 C.F.R. § 92.202(b)
27 See https://files.medi-cal.ca.gov/pubsdoco/publications/masters-mtp/part2/sign_z02.doc
28 See C.F.R. § 36.303(b)(1); (c)(1)
29 See https://www.ada.gov/taxcred.htm
30 28 C.F.R. § 36.303(c)(3)
31 28 C.F.R. § 36.303(c)(4)
32 The Spectrum Institute nonprofit foundation that sponsors various human rights focused initiatives including the Disability Abuse Project, the Disability and Guardianship Project, and the Family Diversity Project (See http://www.disabilityandabuse.org/ and http://www.disabilityandabuse.org/about-spectrum.pdf)
33 (See the DAP Analysis at pg. 1.)
34 Over 7,200 respondents completed the DAP Survey. Among those respondents were people with disabilities and people who regularly interact with them, including family members, service providers, caregivers, and advocate (See the DAP Analysis at pg.1: http://disabilityandabuse.org/survey/survey-report.pdf)
35 See the DAP Analysis at pg. 2: http://disabilityandabuse.org/survey/survey-report.pdf
36 Id.
37 See the DAP Analysis at pg. 3: http://disabilityandabuse.org/survey/survey-report.pdf
38 See Analysis at pg. 4: http://disabilityandabuse.org/survey/survey-report.pdf)
39 See https://www.ada.gov/reachingout/lesson11.htm
40 See the DOJ’s description of the ADA Information Line on the Department’s ADA website: https://www.ada.gov/infoline.htm
41 28 C.F.R. § 36.303(c)(1)(i)
42 https://www.ada.gov/effective-comm.htm
43 https://adata.org/factsheet/sign-language-interpreters
This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.