The request rule and the primary-consideration rule
A public entity must give primary consideration to the auxiliary aid or service the person requests (28 C.F.R. § 35.160(b)(2)). In practice, when a Deaf patient asks for a qualified sign language interpreter for a procedure, the default answer is an interpreter, not note-writing and not a tablet with a bad connection. A public accommodation covered by Title III has the same obligation under 28 C.F.R. § 36.303(c).
The three substitutions that do not work
- Handing the person a pen and paper for a conversation about surgery, medication, consent, an arrest or a plea
- Pulling in a bilingual employee or a family member who happens to know some signs
- Relying on video remote interpreting where the image, audio or interpreter skill does not support understanding, which § 36.303(g) addresses for Title III entities and DOJ treats as a failure for Title II entities as well
The regulations are specific on two points people are usually surprised by: an entity may not require an individual to bring their own interpreter, and it may not require an adult accompanying the person to interpret except in limited circumstances (28 C.F.R. § 35.160(c)(2)). A minor child may not be used to interpret except in an emergency.
Medical settings
A hospital or clinic is both a public accommodation under Title III and, if it receives federal financial assistance, a recipient under § 504 of the Rehabilitation Act. Discharge instructions, informed consent, medication counseling and mental health assessment are the situations where the failure causes the most serious harm, and where a claim is strongest. The question is not whether the patient understood some of it. It is whether communication was as effective as it would have been for a hearing patient.
Police, courts and government offices
Law enforcement interactions raise the stakes because the consequences are immediate: a misunderstood instruction, a consent search, a statement taken without a qualified interpreter. In California court proceedings, Evidence Code § 754 provides for appointment of an interpreter for a Deaf or hard of hearing participant. In police encounters, Title II applies and the agency's failure to provide an interpreter can support both a civil rights claim and a challenge to what was obtained.
What to keep
- The date, time, department and the names of staff involved
- Exactly what was requested, of whom, and the words used to refuse
- Whether note-writing, a family member or VRI was substituted, and how badly it worked
- The medical or legal consequence: wrong medication, missed instruction, an uninformed consent, a statement you did not understand
- Any record the facility generated about the encounter
Common questions
Is a video interpreter good enough for a hospital visit?
Sometimes, if the system actually works and the interpreter is qualified. For complex consent, discharge teaching or mental health assessment, a remote feed that keeps dropping is not effective communication and the facility should have provided a qualified on-site interpreter.
Does the hospital have to provide an interpreter for a family member's appointment?
The obligation runs to the patient. A family member who is Deaf and participating in the patient's care may also be entitled to access, and hospitals that bar interpreters for companions create their own exposure.
Can I recover money for this?
Under California law, yes: the Unruh Act and Civil Code § 54.1 support damages under § 52. The ADA itself provides injunctive relief and fees rather than damages.
What if it happened during an arrest?
That is a stronger case than most, and it needs to be reviewed quickly. A statement or consent obtained without effective communication can be challenged, and the six-month government claim deadline applies to state law theories.