The Department of Justice promulgated regulations to implement title III of the ADA on July 26, 1991 which contain a provision on auxiliary aids and services. “A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e. significant difficulty or expense.” 28 C.F.R. §36.303. The term auxiliary aids is further defined to include “qualified interpreters, note takers, computer-aided transcription services, written materials...” Id. The Department of Justice regulations stated that in determining whether an action is an undue burden various factors should be considered. These include the nature and cost of the action, the overall financial resources of the site, the geographic separateness and the administrative or fiscal relationship of the site or sites in question to a parent corporation, the overall financial resources of the parent corporation, and the type of operation or operations of any parent corporation or entity. 28 C.F.R. §36.104.
The Department of Justice’s analysis of its regulatory provisions when the
regulations were proposed included as an example the situation where a note pad and written materials were insufficient to permit effective communication in a doctor’s office when the matter to be discussed was major surgery. Commentators objected to this statement as conveying the impression that note pads were sufficient except in the most extreme circumstances. In its discussion of the final regulations, the Department of Justice observed that such a limitation was not intended. “Other situations may also require the use of interpreters to ensure effective communication depending on the facts of the particular case. It is not difficult to imagine a wide range of communications involving areas such as health, legal matters, and finances that would be sufficient lengthy or complex to require an interpreter for effective communication.” 56 Fed. Reg. 35567 (July 26, 1991). In addition, the Department noticed that the use of a computer may be an intermediate step between an interpreter and a notepad. Id..
