You asked (1) whether there are any laws or regulations that require Medicaid providers to pay the "excess costs" of an interpreter (i. e. the balance due after Medicaid reimbursement), (2) whether these costs could be passed on to either the patient or the state, and (3) if the state could contract for these services to keep the cost low enough to ensure providers break even when they see patients with hearing impairments.

You asked these questions in light of concerns expressed by a Medicaid provider who has had to pay out-of-pocket to treat hearing impaired Medicaid recipients because (1) Medicaid reimbursement for the actual medical service is low and (2) he believes he is obligated by law to provide interpreters.

SUMMARY

No state or federal law explicitly requires Medicaid providers to provide interpreters to their hearing-impaired patients, let alone pay for the excess costs of furnishing them. But Title III of the federal Americans with Disabilities Act (ADA) requires that public accommodations provide auxiliary aids, including interpreters, so that people with disabilities can enjoy the benefits and services of the accommodation to the same degree that a person without a disability can. And the law prohibits the accommodation from passing the costs of these aids onto the person with the disability. Doctors, including those providing Medicaid, are considered public accommodations for purposes of the act. (Title II of the ADA imposes similar requirements on state and local government entities. Since Medicaid is run by the state, Medicaid agencies also appear subject to these requirements. )

Although the ADA generally requires that the aids be furnished, it makes two exceptions. If providing the aids either (1) fundamentally alters the nature of the services being provided or (2) imposes an undue burden on the provider, this obligation may be mitigated, if not altogether eliminated. A medical provider having to pay out of pocket to serve a hearing impaired Medicaid recipient would probably not meet either of these criteria.

Another federal law establishes parallel expectations. Section 504 of the Rehabilitation Act of 1973 prohibits organizations and agencies that receive federal funds from (1) excluding someone from participating in, (2) denying the benefits of, or (3) subjecting people to discrimination under any program or activity that receives such funds, solely by reason of a disability. Since Medicaid is a federal program, the act's "reasonable accommodation" provisions apply to it. These include requiring interpreters, but also allow for undue burden exceptions. (29 USC § 794 et. seq. , 45 CFR § 84. 12, et. seq. )

Some have argued that the Medicaid program, not the provider, should be responsible for paying for the costs of interpreters. Indeed, on at least one occasion, the federal agency that monitors compliance with Title II of the ADA and Section 504 found a Medicaid agency to be discriminatory by not providing interpreter services for hearing impaired Medicaid recipients. Still, a number of experts on the issue have concluded that the ultimate responsibility rests with the provider, both because he is the one who ultimately receives the federal funds and is the target of the requirement outlined in Title III. And even if the providers attempted to sue the state to get it to pay for these services, it is not clear that they would prevail given some recent caselaw.

As it seems quite clear that the obligation to pay falls squarely on the providers, one way the state could provide partial relief would be to contract out for interpreter services. These services are presently provided by part-time employees of the state's Commission on Deaf and Hearing Impaired (CDHI). (These positions are partially paid through fees that the commission collects from entities that request interpreter services. The rest is paid through a General Fund appropriation. ) Contracting for these services could potentially make them less costly to providers.

Alternatively, the state could take on the entire cost burden and provide CDHI interpreters free of charge to medical providers who request their assistance when treating Medicaid recipients. A less expensive option would be for the Medicaid program to cover them. Doing this would provide the state a 50% federal expenditure match. Both of these options would be provided at a cost to the state.

AMERICANS WITH DISABILITIES ACT (ADA)-TITLE III AND PUBLIC ENTITIES' OBLIGATION TO PROVIDE INTERPRETERS

In 1990, Congress passed the landmark ADA. Title III of the act (42 USC § 12182-12189) gives people with disabilities the right to equal access to "public accommodations. " In addition to providing physical access to a range of public places (e. g. , hotels, retail stores, and doctors' offices), the law requires these accommodations to offer "auxiliary" aids and services to ensure that once a person with a disability reaches the accommodation, he has the same opportunity to "participate in, and enjoy the benefits of, a service, program, or activity" that the accommodation (entity) offers that someone without a disability has (28 CFR § 36. 104). The regulations include "qualified interpreters" in their definition of auxiliary aids. While the entities may be obliged to furnish the aid, the regulations prohibit them from charging the person with a disability extra to cover the costs of providing it (28 CFR § 36. 301).

As public accommodations, doctors must furnish auxiliary aids. But the regulations allow for an exception in limited circumstances. Namely, if the accommodation can show that providing the aid would fundamentally alter the nature of the service, or would constitute an undue burden or expense. The regulations define such a burden as causing "significant difficulty or expense" (28 CFR § 36. 303(a)). The factors a doctor would need to consider whether such a burden exists include (1) the nature and cost of the action needed (i. e. , providing the interpreter) and (2) the overall financial resources of the site (i. e. , office) involved, the number of employees at the site, and the effect on the site's expenses (28 CFR Sec. 36. 104). Even when an undue burden can be shown, the accommodation must come up with an alternative aid to ensure access (28 CFR § 36. 303(f)).

Although the regulations do not address situations where the cost of the interpreter is more than what the provider is receiving for providing medical services, we found two interpretations that this particular scenario does not obviate a provider's responsibilities under the law. The first was a copy of a publication, forwarded by a local physician, that the American Medical Association (AMA) provides to physicians to help them comply with the ADA's public accommodation requirements. In it, the AMA cautions that although in some cases an interpreter's charges may exceed the physician's fee for treating the patient, this alone is not considered an undue burden. And in a separate questions and answers publication, the National Association for the Deaf suggests that in some cases, the provider may be obligated to pay for the aid, even if it means he loses money by seeing the patient.

RELIEF OPTIONS

While the obligation to provide interpreters seems clear, there are a number of ways the state could potentially ease the burden on physicians who must already accept reimbursements for serving Medicaid-eligible patients that often do not cover their costs.

Having the State Fully Subsidize Interpreters for Medicaid Recipients

The state could contract for interpreter services as a way of potentially lowering the costs that providers must pay. As an alternative, the state could absorb the full cost of the interpreter. In addition to the hourly interpreter rate, providers are responsible for paying the interpreter's gas and auto use allowances. The legislature could direct CDHI to refrain from billing providers when the patients for whom the interpreters have been requested are Medicaid recipients.

Getting Medicaid To Pay for Interpreters

Obligation for Medicaid to Pay. There is some question as to whether it is the state Medicaid agency's responsibility, rather than the provider's, when it comes to providing interpreter services for hearing impaired recipients. Although there is no explicit statutory language, the regulations seem to suggest that states are obligated to make services accessible to recipients. For example, states are generally expected to provide nonemergency transportation to Medicaid recipients to ensure they have access to services (42 CFR §§ 431. 53 or 440. 170).

Moreover, federal Medicaid regulations establish an expectation that a state Medicaid program will be in compliance with applicable federal laws and regulations, including one that calls for nondiscrimination on the basis of handicap in programs and activities receiving or benefiting from federal financial assistance (Section 504 regulations, found at 45 CFR Part 84)(42 CFR § 430. 2).

The federal regulations governing Medicaid managed care also create an expectation by requiring all Medicaid managed care contracts between states and managed care organizations to comply with applicable state and federal laws, including the Rehabilitation Act and the ADA. Connecticut's Medicaid managed care contract requires each managed care organization "to take appropriate measures to ensure access to services by people with visual or hearing disabilities" (Medicaid Managed Care Contract, § 3. 27(c)). (We are still trying to determine what expectations the state places on fee-for-service providers in this regard. State regulations generally prohibit Medicaid providers from discriminating against people with disabilities (Conn. Agency Regs. § 17b-262-526 (1)).

Finally, the federal regulations require state Medicaid agencies to make payments to ensure that enough providers will participate in the program. One could argue that lack of reimbursement for interpreter services could force some providers to stop serving Medicaid recipients.

Although some might suggest that, as a whole, these requirements place the burden of providing interpreters on the state, the Office of Civil Rights (OCR) within the U. S. Department of Health and Human Services, which has responsibility for monitoring compliance with Title II of the ADA and Section 504 of the Rehabilitation Act, has said that the burden generally passes through the state onto the provider. Yet in 1999, the OCR office monitoring the region of the country that includes the District of Columbia (DC), in investigating a complaint against the DC Medicaid agency, found that the agency had discriminated by not offering interpreters to Medicaid recipients in physician offices. The investigation ultimately led to the agency contracting for these services. So if providers or clients complained, OCR might make a similar finding and order the Department of Social Service (DSS) to pay for interpreters here.

While there is apparently nothing to prevent the state from covering interpreters for the hearing impaired under its Medicaid plan (see below), it is not clear whether the state would lose if its refusal to pay for interpreter services were challenged in court. A 1999 U. S. Appeals Court (2^nd Circuit) case, which would have direct bearing on the state as Connecticut is part of this circuit, suggests that such an attempt might be denied. In reversing a lower court's ruling, the court in Rodriguez v. City of New York (197 F. 3d 611) held, in pertinent part, that the city's failure to offer a particular service to a disabled Medicaid recipient did not violate the Medicaid Act, the Rehabilitation Act of 1973, or the ADA because it was denying a service to everyone, not just clients with disabilities who happened to need the service.

Ability Under Federal Law. DSS has stated that interpreters for the hearing impaired is not a covered service under the federal Social Security Act. (Medicaid is Title 19 of that act. ) Yet, we searched the U. S Code and Code of Federal Regulations (CFR) and found no outright prohibition. We also called the federal Center for Medicare and Medicaid Services (CMS), the federal agency that runs the Medicaid program. CMS's Elena Nicolella confirmed that there is no prohibition. On the contrary, there does not appear to be any reason why states cannot receive a federal match for the cost of providing interpreters to Medicaid patients. Nicolella indicated that the federal matching rate for interpreters would be paid at the "administrative" rate which, in Connecticut, is the same as the "service" rate match or 50%. New Hampshire and Maine's Medicaid programs apparently pay for this service.

According to Nicolella, if the state's Medicaid program were to pay for interpreters, the Medicaid agency would have to contract directly with the interpreters. In this instance, DSS could set up some type of interagency agreement with CDHI. Once CDHI received the request, it could send one of its interpreters out to the provider's office, and bill DSS, which could make some type of transfer payment to the commission. Then DSS would bill CMS for the 50% match. Although the burden would ultimately be shifted from the provider to the state, the net cost to the state would be less than having CDHI absorb the entire cost under the first option.

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