Submission Date:
Question:
Greetings. We have used an ASL Interpreting service a few times over the past few months and have had a situation occur twice where the patron cancelled their visit with our library 2 hours before the appointed time. The service we are using requires a 48 hour cancellation notice or else we get invoiced for full service. Is it legal to forward that charge on to the patron as they are the party who cancelled the service? If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?
Answer:
This question has two parts, so I will re-state them for clarity:
Is it legal to forward that charge on to the patron as they are the party who cancelled the service?
Answer: no.
If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?
Answer: yes.
For more on both of these, see below!
This submission to “Ask the Lawyer” is a good companion to a recent query about arranging ASL interpreters, posted under the title “ADA Compliance When Screening Movies” (we’ll call it “Screening Movies”), on January 7, 2019.
“Screening Movies” sets out some of the fundamentals of ADA compliance in the ASL interpreter realm, so as a foundation for the answer to this question, please take a look at it for some essential background.
[We’ll pause while you read “Screening Movies” and absorb the basics.]
Okay, have you got the fundamentals of ASL-related ADA compliance? Great! Now we’ll move to the advanced work required by these questions.
The answer to the member’s first question is “No,” because, per federal regulations[1]:
(c) Charges. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids….
While any regulation is of course open to interpretation, the United States Department of Justice—the body charged with enforcement of the ADA—offers this commentary on surcharges related to accommodations:
One medical association sought approval to impose a charge against an individual with a disability…where that person had stated he or she needed an interpreter for a scheduled appointment, the medical provider had arranged for an interpreter to appear, and then the individual requiring the interpreter did not show up for the scheduled appointment. Section 36.301(c) of the 1991 title III regulation prohibits the imposition of surcharges to cover the costs of necessary auxiliary aids and services. As such… providers cannot pass along to their patients with disabilities the cost of obtaining an interpreter, even in situations where the individual cancels his or her appointment at the last minute or is a ‘‘no-show'' for the scheduled appointment. The… provider, however, may charge for the missed appointment if all other[s] … are subject to such a charge in the same circumstances.
In other words, cancellation fees or other obligations imposed upon the general public can be equally applied to those who require ADA accommodations, but any charge specifically related to an ADA accommodation cannot.
There are, however, several ways to address the need of Deaf and Hard-of-Hearing users to change their arrangements.
1. Renegotiate your interpreter contract to shift away from cancellation fees
This of course requires cooperation by your ASL agency, but it is feasible.
One approach is to use a contract that guarantees a base or “stand-by” rate that is assured to your provider (regardless of utilization). For example, for $####/year, your organization gets ### hours of services, in up to ### separate instances; this amount is paid not matter what.
This gives both your library, and the provider, some fiscal stability as you serve the needs of your community. It is an approach that might not work for libraries with small budgets, but collaboration with a system, council, or network can sometimes use this approach.
2. Renegotiate your contract to tighten the cancellation window and reduce the fee
24 hours’ notice and a cancellation fee (not paying for the whole service value) is much more reasonable!
Again, this requires cooperation by our agency, and in you location, it might be a seller’s market.[2] But it doesn’t hurt to negotiate![3]
3. Know your budget
As described in “Screening Movies,” the obligations of libraries will vary wildly from institution to institution. What might be “reasonable” to a large urban library might be an “undue burden” [4] for a small village library with a much smaller budget. But no matter the size or budget, as “Screening Movies” states, every library should have an accommodations plan—and that plan should have a line in the library’s budget.
When a library has a budget for routine ADA accommodations (as opposed to one-time capital improvements or ad hoc needs of employees), it can help provide users with meaningful information about the libraries ability to provide those services. It can also position your library to show if the cost of an accommodation truly would be an “undue burden,” (and thus not an obligation) as defined by the ADA.
For members of the Deaf and Hard-of-Hearing communities, access to information is critical, and a public library’s commitment to assuring it is vital.
The member’s foresight and attention to stewarding this resource and making it as accessible as possible is exactly what is required. And as can be seen, just as critical is finance committee and budget input on how to make the most of assets and budgets that help assure access and legal compliance.
[1] 28 C.F.R. § 36.301 “Eligibility criteria.”
[2] A good resource when considering an interpreter contract is here: https://rid.org/about-rid/about-interpreting/hiring-an-interpreter/.
[3] I don’t mean to imply that this member didn’t negotiate. In my experience, librarians are often tough and forward-thinking hagglers.
[4] Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include –
- (1) The nature and cost of the action needed under this part;
- (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
- (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
- (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
- (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
