Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

August 14, 2008 Janet L. Blizard Deputy Chief Disability Rights Section Civil Rights Division U.S. Department of Justice 1425 New York Avenue, NW, Suite 4039 Washington, DC 20005 Re: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities [CRT Docket No. 106; AG Order No. 2968-2008], 73 Fed. Reg. 34508 (June 17, 2008) Dear Ms. Blizard: On behalf of the physician and medical student members of the American Medical Association (AMA), we appreciate the opportunity to provide comments to the Department of Justice (DOJ) in response to the Notice of Proposed Rulemaking (NPRM) on "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities." The NPRM proposes amendments to the regulations implementing Titles II and III of the Americans with Disabilities Act of 1990 (ADA), which prohibits disability-based discrimination by public accommodations with respect to employment and access to goods and services. Private physician offices are considered to be "places of public accommodation" under Title III of the ADA and therefore are required to make available auxiliary aids and services, where necessary, to ensure effective communication to patients with disabilities, unless doing so would result in an "undue burden." The AMA's comments are focused on the DOJ's proposed amendments under 28 C.F.R. Section 36.303 on auxiliary aids and services and the use of interpreters for patients with disabilities and their companions with disabilities. The AMA supports access to quality care for all individuals, encourages physicians to make their offices accessible to patients with disabilities, and opposes any discrimination based on an individual's disability. Moreover, the AMA strongly believes that clear, direct communication and understanding is the bedrock of the patient-physician relationship, and is a very important concern in providing quality medical care to all patients. However, the ADA's requirement that physicians must provide and pay for auxiliary aids and services is an unfunded mandate which the AMA has long opposed as an unfair burden imposed on physicians, many of whom are operating small businesses. Under the ADA, the cost of providing an auxiliary aid or service such as a qualified medical interpreter is considered part of the overhead of operating a physician's office. The ADA prohibits charging the patient or the patient's health plan for the interpreter or other auxiliary aid or service that may be needed to ensure effective communication, even if the cost exceeds the reimbursement made for the physician's services. In fact, in the vast majority of situations, the cost of hiring an interpreter significantly exceeds the reimbursement the physician receives for the office visit. Interpreters can cost up to $150 per hour, with a one or two hour minimum, plus transportation costs. The practice may still incur a fee if the patient cancels without sufficient advance notice. We are concerned that DOJ's proposed amendments expanding the scope of the public accommodation requirement to provide auxiliary aids and services to the disabled companions of patients will exacerbate the impact of this unfunded mandate at a time when physicians already are experiencing difficulty in covering their office expenses. With decreasing third-party reimbursement and increasing costs in today's economic climate, small physician practices lack the ability to spread the costs of accommodation the way other businesses can. Importantly, practices do not have the ability to track non-patient companions accurately and book them into the appointment system. Further, if the patient arrives for the appointment without the companion, and fails to provide sufficient notice, the practice will still have to pay the full cost of the interpreter. Under the proposed regulations at 28 C.F.R. 36.303(c)(1), a public accommodation would be requir…