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Abstract:
Title III of the Americans with Disabilities Act (ADA) grants people with disabilities access to public accommodations, including the offices of medical providers, equal to that enjoyed by persons without disabilities. The Department of Justice (DOJ) has unequivocally declared that the law requires effective communication between the medical provider and the Deaf patient. Because most medical providers are not fluent in sign language, the DOJ has recognized that effective communication calls for the use of appropriate auxiliary aids, including sign language interpreters. The final decision on what to offer the Deaf patient is the doctor's, and under current DOJ regulations, the doctor does not have to consult with the patient or give "primary consideration" to the patient's choice of auxiliary aid as long as what the doctor offers results in effective communication. However, given the great variation in people's communication styles and skills, a standard, one-size-fits-all auxiliary aid would fail to achieve effective communication in many cases, harming not only that Deaf patient, but also the medical provider, who would be potentially liable for violating the ADA as well as hamstrung in getting accurate information for purposes of diagnosis and treatment. Moreover, most doctors are not savvy about Deafness and Deaf culture. Thus, the best way to ensure effective communication would be to require the medical provider to ask the Deaf patient for his or her choice of auxiliary aid and to give "primary consideration" to the patient's expressed choice of auxiliary aid. Such an approach is required under Title II of the ADA, which makes it mandatory for state and local governments to consult with people with disabilities and give "primary consideration" to the patient's choice of auxiliary aid. Given that there is no difference between a public doctor and a private doctor that would justify the two different approaches and that cost is not a factor, since under either title, a medical provider cannot pass on the costs to the person with a disability, the DOJ should revise its interpretation of Title III in order to bring in into line with its interpretation of Title II. To fail to do so would operate to frustrate both the letter and the spirit of the ADA. Until the DOJ brings the titles into line, the courts should decline to give controlling weight to the DOJ's interpretation of Title III.

Abstract:
Deaf patients face difficult attitudinal and communication barriers in the medical setting. Although the Americans with Disabilities Act (ADA) entitles them to effective communication via appropriate auxiliary aids, these patients are often frustrated by medical providers who do not understand either their patients' communication needs or the provider's own obligation under the law to provide effective communication. Deaf patients are then challenged by the law of standing that deprives them of their day in court. Because many, if not most, Deaf patients decide to go elsewhere when confronted by a medical provider's refusal to provide decide to go elsewhere when confronted by a medical provider's refusal to provide auxiliary aids, courts have ruled these patients have presented no case or controversy for adjudication. In this article, Professor Schwartz looks at research data that highlights the difficulties Deaf patients face in the medical setting and the legal paradigm that was established by the ADA to confront and resolve these difficulties. The article then examines how the lack of imminent future injury operates to bar standing where a plaintiff does not return to the provider's office. The article concludes that Deaf patients' intent to return should not be controlling; the lack of accessibility establishes an actual and present injury for these patient-plaintiffs, not a future imminent one, which ought to confer standing. Moreover, the medical provider's refusal ought to establish the likelihood of a continuing refusal in violation of the ADA. Professor Schwartz concludes with a proposal: the allocation of the burden of proof should operate to establish a rebuttable presumption that the defendant's refusal to provide appropriate auxiliary aids represents an ongoing violation of law, which confers standing on the plaintiff regardless of the plaintiff's intention to return to the defendant.