Effective Communication

The Americans with Disabilities Act (“ADA”) requires that public and private entities effectively communicate with individuals who are deaf and hard of hearing.

• Title II of the ADA applies to public entities (state and local government).
• Title III of the ADA applies to private entities/businesses (“public accommodations”).

The effective communication obligation extends to “companions” who are individuals with disabilities. Companion means:

• a family member, friend, or associate of an individual seeking access to a service, program, or activity of a public entity, who, along with such individual, is an appropriate person with whom the public entity should communicate
• 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.

Auxiliary aids and services.

Both public and private entities are required to furnish appropriate “auxiliary aids and services” where necessary to ensure that communication with individuals with disabilities is as effective as communication with others. Auxiliary aids and services include equipment or services a person needs to access and understand aural information and to engage in effective communication.

Auxiliary aids and services include:

• Qualified interpreters
• Notetakers
• Computer aided transcription services (CART)
• Written materials
• Closed caption decoders
• Open and closed captioning
• Telephone handset amplifiers
• Assistive listening devices
• Telecommunication devices for deaf persons (TDD’s or TTY’s)
• Video interpreting services (by amendment)
• Videotext

Case by case determination.

The particular auxiliary aid or service necessary to ensure effective communication will vary from case to case. Factors include:

1. The method of communication regularly used by the individual;
2. The nature, length, and complexity of the communication involved; and
3. The context in which the communication is taking place.

In some situations (e.g. ordering food at a restaurant), writing notes may be enough to provide effective communication, where as in other situations (e.g. police interview, court appearance, medical appointment), CART services or a sign language interpreter may be required.

In determining what types of auxiliary aids and services are necessary, public entities must give primary consideration to the requests of individuals with disabilities.

Public accommodations, on the other hand, can choose among various alternatives as long as the result is effective communication with the deaf or hard of hearing individual. These entities “should consult with individuals with disabilities,” but have the ultimate decision as to what auxiliary aid or service to provide.

What is a “qualified” interpreter?

In cases where a sign language interpreter is necessary for effective communication, the interpreter must be “qualified.” The term qualified interpreter is defined to mean “. . . an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.”

Can an entity require family members or friends to interpret for deaf or hard of hearing Individuals?

Generally, no. Family members and friends may not possess sufficient skills to interpret effectively; may be too emotionally or personally involved; may have interests that conflict with the individual with a disability’s; may cause role confusion; and may be unable to interpret “effectively, accurately, and impartially.”

Who pays for the provision of auxiliary aids and services?

The responsibility to pay for auxiliary aids and services rests with the entity that has the obligation.

Additionally, covered entities may not impose a surcharge on an individual with a disability to cover the costs of the provision of auxiliary aids and services.

Limitations on the ADA’s auxiliary aids and services requirements.

The ADA does not require the provision of any auxiliary aid or service that would result in an undue burden or in a fundamental alteration. Making information or communication accessible to an individual who is deaf or hard of hearing is unlikely ever to be a fundamental alteration. Whether a particular auxiliary aid or service would be an undue burden requires an individualized assessment.

When would providing an auxiliary aid or service be an undue burden?

For public entities, the undue burden determination must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If a particular alternative auxiliary aid or service would result in an undue burden, the public entity must take other action to ensure access.

For public accommodations, undue burden is defined as significant difficulty or expense when considered in light of a variety of factors including the nature and cost of the auxiliary aid or service and the overall financial and other resources of the business. If a particular alternative auxiliary aid or service would result in an undue burden, the public accommodation must provide an alternative auxiliary aid or service to ensure access to the maximum extent possible.

Have you been denied effective communication?

If you believe you have been denied effective communication by a public entity or place of public accommodation, please contact us for information and potential assistance.