Transcript of “Rights Here, Rights Now –

Episode 17: “Effective Communication in Medical Settings”

Produced by the disAbility Law Center of Virginia.

[INTRO]: The information provided on this podcast does not, and is not intended to, constitute legal advice. Instead, all information, content and materials available are for general informational purposes only.

[REN]: Welcome to Rights Here, Rights Now, the podcast about disability, advocacy, and activism. I’m your advocate host, Ren F.

[VIRGINIA]: And I’m your advocate host, Virginia Pharis.

[REN]: Every two weeks, we dig into relevant issues, current events, and avenues for self-advocacy.

[VIRGINIA]: ‘Cause someone has to!

[REN]: And it might as well be us!

[VIRGINIA]: This podcast is produced by the Disability Law Center of Virginia. the Commonwealth’s protection and advocacy agency for disability rights. Find out more at www.dLCV.org

[REN]: So, Virginia…Today we’re going to be talking about one of my favorite topics.

[VIRGINIA]: [Inquiring]: Oh? (Laughter)

[REN]: That I am very good at! Which is…Talking!

[VIRGINIA]: We do love talking! Or just otherwise communicating. It doesn’t have to be talking.

[REN]: It does not have to be talking. You’re right. Well, effective communication, really. [Pause.] And, I’d like to think I communicate effectively. But, I’m guessing I know a lot less about this than I should, which is why we’re going to have, Zachary Devore, uh, joining us today.

[VIRGINIA]: Yes, staff attorney extraordinaire- Zach Devore. He’s going to be talking to us about effective communication specifically in medical settings. Which is…something people don’t think about a lot. But, it’s a really important topic and we hope you find it as interesting as we do.

[REN]: Yeah! And if you don’t even know what that is, well, that’s why we’re having an episode about it! So, before we jump in, let’s check out disability in the news.

[NARROTOR]: Hi I’m Valerie Jones, the Community Relations Specialist. Amazon is soon to release a new show based on the experiences of three young adults with autism. The show is created by Jason Katims, the director of the show Parenthood. The show will have three 20-something roommates all on the autism spectrum attempting to, as the director put it, “To get a job, keep a job, make friends, fall in love and navigate a world that eludes them.” The main characters will be played by Rick Glassman, Sue Ann Pien, and Albert Rutecki, all who are on the autism spectrum. There is not yet a title or a release date but keep checking on Amazon to learn more about this upcoming series.

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[REN]: All right, it is time to get into it again. Thank you, Zach, for joining us. We appreciate you being on our podcast today.

[Enter: Zach Devore]

[ZACK]: You’re welcome.

[REN]: You know, today we’re talking about something that, I think, affects a lot more people than we realize. Can you tell us in general what is effective communication?

[ZACK]: Certainly! To boil it down to a fundamental level, effective communication is communicating in a way that can be effectively understood. And it’s a way for them to receive communication that is provided to them. And, it’s also the way, it also applies to written material. Which is the ability to write. And, to see material in a format they can understand. For example… An example would be a person who’s blind who reads braille getting publications written in braille.

[VIRGINIA]: So, it seems like this is a pretty straightforward concept. But, why is for instance, effective communication medical(ly) just as important?

[ZACK]: I am glad you asked that. Because that is in fact a very important issue for a lot of people with communication disabilities such as people who are deaf or people who are hard of hearing. Because…you know, really, the first reason is, it assures better community care and healthcare outcomes. If you can’t communicate with your doctor, you probably aren’t getting very good care. Then, this assures that the patients are going to be able to give accurate diagnoses to the doctors. And they’re going to be able to understand the information that they’re given about treatment. It also means... That outside, when they receive treatment they receive information for the care.

For example, how to take a medication. They may not be able to understand how to do that. So, they need to…in order to properly receive care. It also (brief pause) promotes efficiency. Because, if you’re struggling to communicate, the appointments are going to last a long time, and they’re going to be difficult for everyone involved, and, it also makes medical offices more inviting to persons with disabilities. Unfortunately, if people go and they feel like they aren’t going to be understood, then they’re not going to receive critical medical care.

And finally—and, it seems odd to include this as last, but I think in the medical context, this is the least important reason. Is- it’s the law. And, the fact is, even if it wasn’t the law, it would still be the right thing to do. For doctors who want to provide proper care.

[REN]: That’s a lot of really good reasons why we need effective communication. I think it’s definitely one of those things where we just assume that this is happening for people with disabilities and it’s clearly not. But, regarding, obviously, the very important point that IT’S THE LAW. What law would that be??

[ZACK]: The law is the Americans with Disabilities Act. The majority of medical offices are going to be covered under information given in TITLE III of the Americans with Disabilities Act. Which is the same law that protects, for example, the right to have a ramp to get into a store. And, now, there will be a few healthcare providers, particularly community hospitals, which are operated by state and local gov’ts. And those government operated facilities…they’re going to be operated by and covered by Title II of the Americans with Disabilities Act.

[Pause]

[VIRGINIA]: Do Title II & Title III have the same (levels of) protection for effective communication?

[ZACK]: For the most part they are very similar, but there is actually one very important difference. A state and local government is required to give preference to a patient for a request for accommodations. That means they can only deny an accommodation if it is one of the exceptions. Which we’ll talk about later. The second that a private medical office is required to give primary preference to a patient. Or, instead, they are encouraged to give it. The ADA said that they should give consideration for the individual’s choice, but they are given grounds to provide substitute information, if it would provide the effective communication.

[REN]: And I know- as a “not lawyer,” I know those words like should and must are really important.

[ZACK]: Mhhhmm.

[REN]: -When interpreting the law. So, it sounds like that a person doesn’t really have the right to auxiliary aids and the service of their choice in a medical office.

[ZACK]: That is correct. The entity is allowed to select any accommodation that provides effective communication. However, if you are a person with a disability who needs auxiliary aides for communication, you should always inform the medical office of your accommodation.

[VIRGINIA]: So- what factors go into that determination about whether the accommodations somebody’s asking for is actually reasonable?

[ZACK]: Several factors. The first one is: How much does the accommodation cost?

[VIRGINIA]: Mmm…

[ZACK]: And the second one is, is this accommodation really achievable? And that, with really achievable, you have to look at, for example, someone with something that’s just impossible to achieve. It’s just not going to be considered a reasonable accommodation. If I may: It’s important to note, with the cost issues, they may look at the entire resources of the provider. Not the cost for the appointment. Because if you just looked at the individual appointment cost, it would never be reasonable. Because—what that translates into reality is the larger entity- the more accommodations are going to be reasonable. If they have more resources. And, the third factor is: Will the accommodations alter the factor of the service? And, what that would mean is you’re getting a service completely different than someone else. Without a disability. And, the fourth (4^th) factor, and this is- in a way this sounds circular but it’s very important- is the accommodation necessary for the person to be able to communicate effectively? And the fifth factor (5^th) is will this accommodation actually provide effective communication? An example of that would be if you had someone who does not speak sign language, it would be- it would not be reasonable for them to request an ASL interpreter because, if you can’t understand it, it’s not reasonable.

[VIRGINIA]: Right.

[REN]: So, what are the requirements for the communication to [actually] be effective communication? Under the ADA?

[ZACK]: The ADA actually does a very good job of defining what is effective communication. The first one is- it must be accessible, which means, it must provide expressive communication. The person must be able to express themselves to the place of public accommodation. According to the medical office. And they must be able to receive the communication provided to them.

[VIRGINIA]: Mmm.

[ZACK]: The second is- it must be timely. And this is something where it’s actually based on something new- where it’s actually readily achievable. That factor often comes in. Because- if you go to a walk in clinic, and you need a sign language interpretation, they may not be able to provide that immediately. It may take a while to bring in an interpreter. Which is just... the realities of most medical offices are not going to have a sign language interpreter waiting in the back room…just waiting for someone to come in. And- it also means- a second factor of timeliness also means that it must be contemporary. Which means- the provider must be providing the effective communication in real time.

[REN]: Mmhhmm! [Pause.]

[ZACK]: And the third is…it must be private. We do not require people with disabilities to go out there and shout out their medical condition. To the world. And the other way to go is to just make sure that people with disabilities are able to communicate with the medical providers the same way someone without a disability is.

[VIRGINIA]: That’s an important thing to think about, because you know, you hear of these circumstances where, you know, someone is relying on a family member to provide them with interpretation during a medical appointment, and that’s just not something that is expected of people that maybe don’t have a disability. So, you know, all of these factors are really important to keep in mind, when, you think about, effective communication. I’m wondering, though, does the ADA require the same accommodation in every circumstance?

[ZACK]: No, because the goal of the ADA is not to put—the goal of the ADA is to find effective communication for the circumstance itself. And, there’s going to be several factors that they look at. And one is…the ADA also allows for the fact that people will communicate in different ways. Not everyone communicates the same way! And, because of that, you can really not have a general rule of an accommodation that’s going to work.

[CONTINUED]: And, because, if you have someone who communicates in one way, then you have someone else! Another person will communicate in a totally different way! The communication aides that would work for the first one, would not work at all for the second one. And, even if you do have people who communicate in the same way, that also will vary depending upon the lengths, complexity, and nature of the conversation. Which is- quoting directly from the ADA & its regulations.

[REN]: Mhhmm. This kind of reminds me- I had a case that I worked with, with an individual who was deaf, and the facility he was living in, said, “Oh, we’ve provided him effective communication accommodations. Um, we have him “right between the nurses, so he writes his answers. That’s something that we do for everybody, who’s hard of hearing or deaf! And I started working with this individual and it turns out that he can’t write.

So of course we were able to work out getting him a communication board and things like that. Because, you know, they were making assumptions based on—people that they previously worked with a similar disability and people recognizing that that doesn’t just transfer over to this other individual.

[ZACK]: Right. That is actually a common issue you have with people who are deaf. From birth. Because, often times, people that are deaf from birth, or from a young age—they will learn and be educated in American Sign Language. And ASL with NO writing is often not effective for people who use ASL b/c the sentence structure of ASL is different than the sentence structure of English. So even in English language form. (that form) it can be very difficult for a person to understand. It can be difficult for a person who only communicates in American sign language to understand in English. And vice versa!’

[REN]: So when we’re talking about those ADA requirements, which of those factors is most important in determining which auxiliary or other accommodations are necessary??

[ZACK]: Because, as you’ll remember with the ADA, including looking at costs and the nature of the situation, the most important factors are going to be the lengths, complexities, and nature of the conversation. And, in the real world what that translates as…is…If you have a more complex conversation, which lasts longer, and is very important it’s going to require a higher level of service. And more expensive accommodations such as a sign language interpreter.

Those are going to be required in those circumstances because they are very important, long, conversations. Now, in a medical office context, there are very few conversations that are not going to qualify as being long or at least complex and important. Because, they, for example, medical billing, insurance matters? That’s actually important, because, that’s whether you pay. Your doctor & diagnosis information? Those are important! Because, many medical offices…the only information that is not going to qualify as complex is…. Would be going to a hospital gift shop, or cafeteria. And buying something. Pretty much anything else in a hospital? Is going to require an extra level of communication.

[VIRGINIA]: So let’s talk about sign language interpreters. Because this is an interesting topic for me. What requirements apply for an interpreter? Like what does an interpreter need to be to be effective and appropriate for the situation?

[ZACK]: The first requirement is the interpreter must be neutral. That means they do not have a tie for either side. Because the goal of the interpreter is to be accurately dependent upon what’s happening. And not provide a stance. The second is a sign language interpreter must be qualified. And the way you show qualification is by testing and licensing process.

For example, in Virginia, they recognize state level testing as well as National Level Testing to be on Virginia’s Registry of the Interpreters. And if you’ll look at that list, you’ll see different interpreters with different qualifications. For example one might list that they’re qualified for medical appointments etc. And again, the more complex the interactions, for example a situation in a medical office, that’s going to require a higher level of interpreter than some other conversation.

Then—and this is another important fact—a sign language in. is- they must speak that right form of Sign Language! And, they must be able to understand and communicate in that form. Because while often, they say they USE ASL, American Sign Language, that’s not the only form of sign language out there! And in fact, not everyone in America speaks American sign language…In fact in the 1960’s and 70’s, there was a movement for something called Sign Exact English, when people would speak in Sign Language based more on…English!

So, if you have someone who learned Sign Exact English, an ASL interpreter would not work for them. And if you have someone who learns sign language in a different country, again, the ASL interpreter may not work for them. And of course, the communication has to be accurate. We all know the jokes where the translator is running out there and getting everything wrong. --- And imagine that happening in a doctor’s office and you can see why—Accuracy is so important! And, finally, the interpreter must be able to communicate both receptively and expressively.

The interpreter must be able to understand both languages. And that of course means that the interpreter must hear what’s spoken in English and translate it into the sign language.

[REN]: Right. I was thinking about the first qualification you talked about: neutral. Because I was—I think, we’ve all dealt with folks that who are deaf or hard of hearing or have a family member who helps them—you know, helps them get about the world! But that’s not a neutral party, you know, and that person’s not—you know, they don’t meet any of those other qualifications, but AGAIN, that neutrality of medical offices is, “Oh, bring your child! Oh, bring your husband!” That’s not meeting those requirements.

[ZACK]: Right, and in fact, the ADA actually prohibits children and family members from interpreting because they are not neutral, and, you can certainly imagine a case where you have a conversation with a doctor and get really bad news, i.e.- CANCER, and it’s your parent, child, it’s your spouse?? You’re not going to translate that accurately because you’re emotional! If you find out say, y our mother has cancer! You’re not going to do a very good job of translating. Of course there’s no way of knowing whether or not that person is actually qualified to make that interpretation. And not all interpreters are going to be qualified enough to interpret for a really complex situation, such as a medical office.

[VIRGINIA]: That’s a really good example. So through this conversation I’ve been thinking about, you know, I’ve definitely worked with some people who’ve had some sort of interpreter relay service, you know. Like, on the phone. So I’m wondering does the SL interpreter have to be there in person and on site to work for the situation?

[ZACK]: No, because the ADA specifically allows a form of interpretation as a possible accommodation. Which is Video Mode Interpretation; and with that what you do is communicate in real time. And you have to have a strong WIFI connection to do this [obviously] where the interpreter can be….hundreds of miles away! From the appointment. And this can be very effective. For example, in walking clinics, if you have the proper technology. But, in order to have VI, you have to have several standards.

ONE, is you have to have clear picture and audio with a real time connection. That can be very difficult esp. for medical offices that have some type of reconstruction outside of the building. --- BUT It’s generally cheaper because you don’t have to actually BRING IN the interpreter. You only pay for the actual time connected. It is a case where it can be very difficult to ensure those conditions. Because many times VIR doesn’t always work under hospital construction. At least, in my experience, I find that particularly older people with disabilities don’t always communicate effectively via VIR.

[VIRGINIA]: Okay, Zach, so we’ve talked about how it’s not okay for a family member to serve as an interpreter in certain situations. But is there ever a situation where that is appropriate??

[ZACK]: That can be allowed. The first situation is A PWD must request that a family member interpret for them. And sometimes a family member will do that! They’ll say: I want my wife to interpret for me. During a medical appointment. Because, they’ve already signed consent for that person to appear and it’s a person they trust. And the second situation would be pretty rare, but--- A family member could, there’d be an emergency situation where that’s the only way. Again, that’s kind of a rare situation and there’d have to be some sort of repercussions.

[REN]: Well, again, along that line, what if a medical office has a staff member who utilizes (knows) sign language? Does that- is that- would that qualify as an interpreter?

[ZACK]: No, not as an interpreter. It’s there’s a very different relationship if a staff member is DIRECTLY COMMUNICATING with the patient vs. being an interpreter. [What?] In those cases—it is permitted. For example if you have a nurse that knows sign language, she is permitted to, uh, communicate directly. But she cannot interpret for the doctor. Because that’s a case of violating neutrality.

[REN]: Oh.

[ZACK]: But it would also be required to have interpretation. Because you cannot get a valid interpretation.—Another situation would be competency evaluations. In fact in some of those cases, particularly criminal cases, the courts require providing an interpreter to remain neutral.

[CONTINUED]: There is also one other exception. This is when the hospital is able to provide an interpreter that is outside of a conflict of interest and is not DIRECTLY interfering with the provider. For instance, if you’re a bigger hospital, you may have an interpreter that’s able to remain neutral.

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[Pause]

[VIRGINIA]: So, say I need, service or aid for the best communication, what’s the best time to request that??

[ZACK]: The best time to request that would be as soon as possible. In your request for a medical apt, you should include WHAT your request for a medical accommodation is. Immediately. As soon as you make the apt. If you go to a walk in clinic or a hospital—do that immediately. Say you’re a person with a disability who needs accommodations. Now, you may not necessarily GET those accommodations, but you should at least establish that you need them.

[VIRGINIA]: Hmmm…

[ZACK]: Also, it’s important to keep a record. In writing.

[REN]: I always forget about keeping a record, but you’re a lawyer, Zach, I wouldn’t expect anything less from you. J [LOL.]

[Continued]: But, Why that’s important I know you’ll explain because there are people trying to get these services, and keeping these medical records…And are having some difficulties, getting the auxiliary aides that they need to effectively communicate in a medical office. SO, what can those people do?

[ZACK]: Well, there are a couple of options that they can do. One is… They can actually contact us, at the Disability Law Center of Virginia. To discuss their individual circumstance. Because every case is going to be different, of course, so…. You really need to go out there and look at a specific area. And, if people think there rights have been violated, they can also actually file a complaint through the United States Dept. of Justice. Which also has a lot of good information on effective communication.

They have a fantastic guide on effective communication, which I, when I communicate with medical offices, I always include a copy of it. Because I think it’s very useful information for people, too. You can also find the text of the ADA as well as the text of the ADA regulations. And, with these regulations, you can actually click directly on the effective communications portions and get to the auxiliary services, and have the actual regulations at your fingertips.

But, it really is a case where-a lot of times, when people run into problems [at least in my experience, it’s that, the medical offices don’t understand the law or they-the medical office don’t really understand how affective effective communication is! And they think, “Well, this person writes well, I just communicate with this person in writing. But what they don’t realize, is that they’re actually- Something can be missing. Because it’s not real time communication, it’s delayed and of course it takes longer.

I know that one case I had, the apt. which took an hour, when writing notes, when it went out with a sign language interpreter it took 15 MINUTES [WOW.] Because, they’re wasn’t like the miscommunication. And everyone understood. And of course it’s also very important because I think most medical offices do want to do the right thing. SO I’ve always found it very effective, to go out there and mention, to really discuss, how it really promotes effective care. And, while I’m here, I should go on and note something that I failed to include earlier. That is…it’s also important to note that this also requires if you’re a companion, for example, if you’re going to an appointment, for a child, the doctor would still be required to go out there and provide the communication for that individual.

[REN]: Mhhm…

[VIRGINIA]: Yeah. Yeah. I wouldn’t have even thought to ask about that. So that’s a really good point. So thank you so much, Zach. And thank you so much for coming and talking to us and giving us these guidelines for effective communication in medical settings. I feel like you’ve just blown my world right open. [TRUTH.]

[REN]: Thank you so much.

[ZACK]: Thank you for uh having me.

[REN]: And instead of a dLCV highlight, today we’re going to talk about how you can get involved.

[Enter, Mary Grace Whitton]

[MARY GRACE]: Hi everyone my name is Mary Grace Whitten and I am a summer law intern at DLCV, I wanted to quickly share some information about our public accommodations survey. That is now available on our website. Since we are a small office, it serves the entire state. It’s difficult for us to be everywhere and um, catch things that don’t comply with the ADA. So, we created a survey to help us target specific areas of concern.

It’s a great way to let us know if like, the local grocery store, or the gas station down your street, or your street corner does not meet the accessible ADA Guidelines. And we don’t expect people to actually go out and measure the street or anything like that. But, we do expect people to know what to look for, for our Twitter account, we’re actually going to start posting photos, of VA state laws that will actually help people better understand what to look for.

And this is a great way that you can be an advocate for accessibility if you don’t know where to start. Uh, so if you’re walking up to a building or walking down the street, things to look for include, if there’s an access isle next to accessible parking spaces, or if there’s curb cuts, from the road to the sidewalk, or is there accessible parking located near the entrance of the building? Is there an accessible path to the entrance? Are there barrios to that path??

And on Twitter we’ll be including little tidbits about the laws to either show you, what works or what doesn’t. So you can start really seeing it in real life & applying it to your own community. So, once we receive the survey we’re going to follow up. We’ll either contact the individual who submitted the survey, or, we’ll complete a full on site survey of the location ourselves. So we’ll look at things like the size of the accessible parking spaces, the width of the ramps, the weight of the door, the carpet rug or thickness, and the height of the bathroom sink. So we really go in & look at a lot of different stuff. Um, but we just need to be aware of these violations in different parts of the state. And so that’s where filling out the survey at www.dLCV.org/accessibility-and-accommodations will really help us get to those violations. So, thank you so much for having me and I look forward to maybe speaking to everyone soon again.

[Music plays.]

[Enter Virginia.]

[VIRGINIA]: Okay Zach, well thank you again Zach for coming in and giving us the rundown on effective communication in medical settings.

[REN]: It was super informative. We really appreciate everything we learned. I learned a lot! I know I always learn a lot on these episodes. I think it’s just really obvious that there’s a WHOLE bunch of things that DLCV does and it’s just impossible to be an expert on all of them!

[VIRGINIA]: Oh, and again, I’m so grateful. Thank you so much, Zach and hopefully we will have him back again soon.

[REN]: And thank you all for listening to another episode of Rights Here, Rights Now, brought to you by the Disability Law Center of Virginia. We’re available on Apple Podcasts, Spotify, or where ever you get your podcasts. Don’t forget to subscribe and leave us a review.

[VIRGINIA]: If you need assistance, or want to learn more about what we do, you can go to our website at www.dLCV.org.

[REN]: You can also follow us on Twitter @disbilitylawVA and you can share us with your friends.

[VIRGINIA]: Until next time…I’m Virginia Pharis.

[REN]: And I’m Ren Faszewski. And this has been Rights Here!

[VIRGINIA]: Rights Now!

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