Welcome to the ADA Distance Learning Series, hosted by your regional Disability and Business Technical Assistance Center. It is a pleasure to bring you today''s session, ADA Status Report, with John Wodatch from the U.S. Department of Justice. Hi John.
Hi. How are you?
Glad to have you with us. This is one of our most popular sessions of the ADA Distance Learning Series, so we are thrilled to have more than 100 sites throughout the United States dialing in to join us today. In addition, the session is currently real time captioned on the Great Lakes Web site at www.adagreatlakes.org follow the links to real time captioning. John Wodatch is the chief of the Disability Rights Section office of Civil Rights in the U.S. Department of Justice, with responsibilities for enforcing Title II and Title III of the Americans with Disabilities Act. John is a civil rights attorney with more than 25 years with the federal government, specializing in the rights of people with disabilities. He is also one of the chief authors of DOJ''s ADA regulation and the Section 504 of the Rehabilitation Act. Thanks for joining us today. We are hoping in the next 30 to 40 minutes you can give us an update on the activities of the DOJ over the last year in terms of ADA enforcement, some of the ground breaking litigation and new resources priorities for the coming year, and then we will go ahead and open it up to the audience for questions. So at this point I will turn it over to you.
Thanks very much. Hello. I am delighted to be with you all once again. I look forward to this part, especially the question and answer part, as a chance to get together with you all from my desk here in Washington D.C. Right now in Washington it is a time of change. After last fall''s election and the change of administration in January, we have many new faces in the government. We still, however, have many vacancies. I do not know if you have been reading about that. For example, here in the Civil Rights Division we still await the appointment of our new boss. We expect that we know who it is going to be, Ralph Boyd, an attorney from Massachusetts. He will be confirmed by the Senate in the coming weeks and bring with him new staff and directions for the Civil Rights Division. But while the faces in government are changing, I can assure you that our commitment is not. We in the Disability Rights Section remain committed to the active and vigorous enforcement of the ADA. We continue to receive and investigate complaints of discrimination, we continue to reach settlements, bringing down barriers and opening new avenues of successful communication, we continue to litigate against those entities that fail to comply with the ADA. In short, we continue to work on the major goal of the ADA, to open up everyday American life for people with disabilities. I am pleased that, in these days of the new administration, to report to you that President Bush, through his New Freedom Initiative, has pledged his commitment to the active enforcement of the ADA. I do not know how many of you have read about it, but the New Freedom Initiative is sort of the president''s overall umbrella for not just ADA enforcement, but disability policy in his administration. On the ADA front, the president has stated he realized that there have been great advances and improvements and access in employment and public accommodations, information technology, telecommunications, housing, schools, but that significant challenges remain before Americans with disabilities can realize the dream of equal access in American society. He announced the New Freedom Initiative after he took office and he grounded it on several findings and they are very sobering. First, that Americans with disabilities still have a lower level of educational attainment than people without disabilities in this country. One out of five adults with disabilities has not graduated from high school, and you can compare that to one out of 10 adults without disabilities. The national graduation rates for students who receive special education have remained at about 27 percent over the past three years; rates for students who do not rely on special education are at 75 percent. Second, Americans with disabilities are poorer and more likely to be unemployed than those without disabilities. Statistics from 1997, over one-third of adults with disabilities lived in a household with an annual income of less than $15,000. If you compare that to the rest of the population, that is only 12 percent. I think you all know how high unemployment rates are for working age adults with disabilities. They have been at around 70 percent for the last 12 years, and we all know that they are significantly, very significantly lower for working age adults without disabilities. Finally, many Americans remain outside the economic and social mainstream of American life. 71 percent of people without disabilities in this country own homes, but fewer than 10 percent of people with disabilities own homes. Computer usage: Internet access for people with disabilities is at least half that for people without disabilities. And with our new focus on voting issues and polling people with disabilities vote at a rate 20 percent below voters without disabilities. So clearly there is much work to be done and President Bush, through the New Freedom Initiative, has committed his administration to getting the job done. So what is this New Freedom Initiative? First, and most importantly at Justice, it calls for the full enforcement of the Americans with Disabilities Act. It pledges action to integrate Americans with disabilities into the work force, it supports changing laws to improve access to polling places and provide ballot secrecy for people with disabilities. It pledges swift implementation of the Supreme Court''s Olmstead decision. And I think on the Olmstead note I would like to mention something that happened quite recently. The president issued an executive order to carry out the New Freedom Initiative''s commitment regarding Olmstead. I hope you all know that Olmstead is a Supreme Court decision. It was a landmark victory for people with disabilities. In Olmstead, the court held that the unjustified isolation or segregation of individuals with disabilities through institutionalization is by itself a form of discrimination prohibited by Title II. States must act to avoid this type of discrimination. So the president has endorsed this and has called upon his administration to take the bull by the horns and do something about it. The order is entitled "Community based alternatives for individuals with disabilities." It gives primary responsibilities to the Secretary of Health and Human Services. It also calls on the Department of Justice, the Social Security Administration, the Department of Labor and the Department of Education to work together to make sure that states can comply with Olmstead. We have been directed to evaluate our programs, our policies, our statutes and regulations to see if they should be revised. And the order directs us at Justice and the secretary of HHS to fully enforce Title II, including resolving complaints involving allegations of unjustified institutionalization. That is a lot of lingo, but what is important here, both for the implementation of Olmstead and for the New Freedom Initiative generally is the fact that the president himself has recognized the importance of protecting the rights of persons with disabilities in his administration. The president has set the agenda. Now it is the job of all the federal agencies to get the job done. What I would do is, before we open up the teleconference to questions, is review a couple of the issues that we have been working on at the Department of Justice. I am going to try and stay away from a lot of the Supreme Court decisions that I know was the subject, especially the University of Alabama vs. Garrett. I know in May you heard from Sharon Rennert from the EEOC and she talked about those and the trio of employment cases that are coming up at the Supreme Court. But I have to start with the Supreme Court case anyway, and where I would like to begin is the decision in the Casey Martin case, which I hope you are all familiar with. It was a very significant victory for people with disabilities. In this case, the Supreme Court ruled 7 to 2, which in these days is a very close decision, pretty sizable majority, that the ADA prohibits the PGA, the Professional Golfer''s Association, through its tour, from denying Casey Martin the use of a golf cart during its tournaments. Martin is a professional golfer from Oregon and he has a degenerative circulatory condition that makes it difficult, painful and extremely tiring for him to walk. He alleged that the PGA violated Title III of the ADA by failing to make reasonable accommodations in its walking requirement that would allow him to use a cart. So he sued and the district court ruled in his favor and found that the purpose of the walking rule was to inject fatigue into the skill of shot making, but that it would not fundamentally alter the nature of the PGA''s game to accommodate Martin by giving him a cart because even with his cart he endured greater fatigue from coping with his condition than his competitors experienced. The PGA sued and went to the 9th circuit. They affirmed the decision. We got involved in the case at that level and then the Supreme Court took it. The Supreme Court held that the ADA''s public accommodations requirements apply to the PGA. The fact that it was an athletic event did not mean it was not covered. And they rejected their claim that athletic competitors were outside the scope of the ADA. It also held that walking was not an essential attribute of the game of golf and found that in the circumstances of this case, the walking requirement could be waived without fundamentally altering the nature of the tournament. I realize some may think how, could this be a significant victory? There are not going to be many people with disabilities that are going to be professional golfers, so what is so important about this? I guess, first, it was a victory in the Supreme Court and that is always something to be said. But more importantly, the Supreme Court signaled in its opinion and in its analysis that the definition of what a place of public accommodation is under Title III should be viewed very expansively. Secondly, and I think even more importantly, the ADA provision that was at issue here is an important one. The provision in the ADA that says that any public accommodation has an obligation to make reasonable modifications in its policies, practices and procedures where it is necessary to do so to allow a person with a disability to participate. It is the provision that we use to ensure that service animals can go into restaurants or that day care providers have to open their doors to children with disabilities and provide them with modifications in their policies. So the fact that the Supreme Court has interpreted this and given it guidance and given it wide scope is very important for the ADA, just not in the area of golf, but in the whole range of Title III dealing with the issue of reasonable modification. Now I know I said I was not going to talk much about Garrett, but I have to let you know that we are continuing our efforts to defend the constitutionality of Title II. The department has intervened in a number of lawsuits, eight at this point, and we will probably have more before we are done to defend the constitutionality of Title II. The briefs that we have done in these eight cases point to the Garrett decision and says that okay, the Garrett decision was only about damages under Title I, and that ruling does not necessarily have to apply to Title II; that the record of unconstitutional discrimination that Congress had before it 11 years ago when it considered the ADA was much more extensive than was even there for Title I and that Congress specifically made findings in the text of the ADA that state sponsored discrimination persisted in areas like education, institutionalization, voting and public service. Because of this record the Congress had before it, the department asserts in these cases that it was appropriate to enact Title II, that there is a constitutional basis to root out present instances of unconstitutionality discrimination. We have taken this position in cases in New York state, Pennsylvania, Georgia, Ohio, Hawaii, Colorado and in two cases in New Jersey. I think you can expect that we can continue to work with the courts to try to establish the constitutional underpinnings for Title II of the ADA. If you are interested in these briefs, they are available on the various Justice web sites and we can get information to you through the DBTAC s about them. I will move on. I think we talked before about what we call our Project Civic Access, which was a department initiative that we had to ensure that cities, towns and villages around the country comply with the ADA. In the past several months we have signed 10 additional agreements. These agreements are dedicated to removing barriers to all aspects of civic life, including courthouses, libraries, polling places, police stations, parks, the whole range of city services. The agreements we have signed include agreements with Santa Fe, New Mexico, two in Puerto Rico, one in Michigan with Mount Pleasant, Michigan. Here in my own backyard in Washington D.C. we signed agreements with two separate agencies. We also had agreements with Boulder City, Nevada; Fairbanks, Alaska; Rhode Island, Nebraska and New Albany, Indiana. These agreements are very broad. They go from everything from altering polling places to improving access at sheriff''s departments, town halls, police and fire departments, convention centers, baseball stadiums, parks, upgrading 911 services. These are also available on our website if you want to get into the nitty gritty of those agreements. Some litigation that we have been involved in. This case called Renden v. Valley Crest Productions, which might not mean much to you, but it probably does if you know it is a case involving Who Wants to Be a Millionaire and whether that show discriminates against people who are deaf or hard of hearing or those who have manual dexterity impairments because of the way you get to participate in the show. They have an automated telephone system, a recorded message. It is toll free, you call up and within 10 seconds you have to answer a certain number of questions using your telephone keypad. No live operators. Some people sued in the district court and they lost. The court said while the Title III applied to the activities in the studio, the program itself, that the ADA did not apply to the selection process because it took place over the phone with complainants in their homes, and that the ADA did not apply to a situation like that. The case is on appeal. We disagree with that holding and so we filed a brief saying that yes, the ADA does apply. It applies to the services, privileges of a place of a public accommodation, and that you cannot participate in this televised quiz show unless you go through this process. And therefore the ADA applies to this process as well as the show itself. It applies not only to barriers to physical access, but to policies, practices and procedures that operate to diminish the full and equal enjoyment of people with disabilities. So we will wait and see how that goes. And by the way, we are clearly also saying much like the Casey Martin case, that it just does not apply to the people in the audience, it also applies to the participants in these kind of events. Another suit that we filed in January of this year was one against Norwegian Cruise Lines. I think a year ago we talked a little bit about cruise line issues and the large number of complaints we had been getting and still get. This suit that we filed involved allegations of discrimination against people who are blind. We had one complainant who booked a cruise with Norwegian Cruise Lines, traveled from his home in Denver, Colorado to board the ship in Houston. When he arrived the ship''s doctor told him he would not be allowed to board the ship because he was blind and he was traveling without an assistant. We had other complainants who were going to spend their honeymoon on a Norwegian ship and they paid the deposit but then they were told they had to sign forms acknowledging that because they were blind they were at a special risk of injuring themselves and they had to waive any claims that they might have against the cruise line. We worked first with the Norwegian Cruise Lines to try and resolve this. It was not working, so we have filed suit. We had hoped that this matter would be a matter we could settle with them because we think the nature of this discrimination is fairly egregious. But it looks like we will be going to trial on this issue in September. The suit was filed in Florida. Let me give you a brief update on our cases involving movie theater chains. I hope you are all familiar at this point, it is pretty hard not to be, with stadium style movie theaters. In about 1997 we started getting a lot of complaints about stadium style movie theaters. These are the new theater designs in which you are seated elevated on rows of risers instead of being on a sloped floor. In most cases that we saw, the new theaters relegated patrons who use wheelchairs to the first few rows of traditional sloped floor seating, separated from the rest of the stadium style seats, too close to see the screen easily in one field of vision. Through 1997-98 we investigated a variety of theater chains, attempted unsuccessfully to settle with a couple of them, and then sued the AMC chain in California, we also sued the Cinemark chain in Ohio. We have also joined a suit in California against the Sanborn theater chain. The U.S. Attorney in Massachusetts has sued Hoyt cinemas, as well as National Amusements. So you can see there is a large front here. I am pleased to tell you that we have reached one settlement with the United Artists theater chain. We had been in litigation with them before and we reached an agreement on what an accessible stadium style theater would be for them, whether they built a new one or more likely when they renovated existing ones. We have been in very serious negotiations with AMC and I am hopeful that we will be able to resolve with them what the design of these theaters can be. We have now seen at AMC and some others some good examples of theaters where the wheelchair seats really are given a comparable viewing experience to the general public. So we know it can be done and we hope that we will be able to effectuate change across the country for these kind of theaters. Two other issues and we will open up to questions. I have not talked about this in a while because we thought it was going to settle, but it has not, and it looks like we are going to go ahead with the litigation is a lawsuit we have against the Law School Admissions Council. We had a number of complaints alleging that the LSAC, which is the Council, violated the ADA by failing to provide reasonable accommodations to individuals with, in this case, physical disabilities seeking to take the LSATs, which is a test you need to take in order to be eligible for most law schools. The reasonable accommodations requested usually included auxiliary aids, extra test time, extra break time or even taking the test in an accessible location. The complaints we got was that the LSAC had wrongly denied accommodations. Most of the complaints we got were really for the applicant to get additional test time to take the LSAT. And these were turned down in situations even though they had a recommendation from a treating physician saying that the person needed the additional time because of their disability. For example, some of these applicants were people with cerebral palsy even in cases of a history of similar accommodations on other standardized tests or in college, other educational situations. We attempted to reach an amicable settlement of this. We have been unable. We have sued in Philadelphia and we are at the moment in the pretrial stages, and at the judge''s urging we are also attempting to mediate and get-our hope is that the LSAC will adopt a policy that will provide the ability for people with disabilities to get these kind of accommodations. Let me conclude this part of the program with a discussion of a new law protecting the rights of people with disabilities, and that law is Section 508 of the Rehabilitation Act. We are moving a little off from the ADA, but not too far. The reason I mention it today is that Section 508 went into full effect on June 21st of this year. Section 508, for those of you who don not know, applies-it is part of the Title V of the Rehabilitation Act, 504, it is in the same part of the law. But this only applies to the federal government. It requires all federal agencies to procure, develop, maintain and use electronic and information technology that is accessible to people with disabilities. The only limitation here is the undue burdens defense. This law is an impressive, important new civil rights law for people with disabilities. It has very broad application. It applies to all the software and hardware that the government purchases, it applies to our web sites, information kiosks, if we use them, telecommunications equipment, office machines. It provides protections not just for government employees but for members of the general public who interact with federal agencies as well. The Access Board has issued a federal regulation detailing what makes electronic and information technology accessible. These standards apply to the federal government through a regulation that was put out, it is called a Federal Acquisition Regulation. It is a regulation that regulates how the government buys everything, from pencils and paper to computers, to services. The concept behind this law-and it is an important one-is that the government has immense purchasing power and this purchasing power can be used to bring about change. And here Congress said okay, if the government can only buy accessible information and electronic technologies, major companies in this country will make it accessible and therefore it will be available for everyone. I should point out to you that our role at the Department of Justice in this law is limited. If you have questions about it, want to find out about it, I suggest you go to the Access Board and their website, the standards are there. GSA has a role to play and so does the Department of Education. What we do is we play an active role in helping the Access Board and GSA provide technical assistance and we have an obligation every two years to issue a report to the president and to Congress on the state of federal agency compliance with Section 508 and with recommendations for change. We are right now working on a report that is going to come out this August that is focusing mostly on two issues; one, federal web sites, whether they are accessible, how they can be made accessible, what the requirements should be, and also on the complaint process for Section 508 because members of the general public can file complaints against federal agencies and have them acted upon. Remember, this is not part of the ADA. It is a parallel civil rights law. It only applies to the federal government. But it is beginning already to create significant change in how private industry in this country develops its information, electronic information technology. With that, I assume we can open this up to questions. As you all know, I am fair game for questions.
Remember now that you said that.
Anything else you want to ask me about.
Great. Thanks John. I am going to bring Karen on in a second to give people instructions on how to queue in to ask a question. I will let people note that I do have a wealth of Casey Martin questions that came in ahead of time, so we will try to answer that one first. While we are waiting for our first question, I have, again, a wealth of questions on Casey Martin, so I am going to try to combine all of them together and I will let you approach it after I give you kind of all of them. The first one is: First, there is a misperception that the Casey Martin decision requires single rider golf carts at public courses. So I am going to try to ask you to address that. And also, if you could expand upon how the Martin decision impacts Title II and Title III when it comes to program access or modification of policy, practice and procedure. Then a follow-up to that, John, is earlier this year the National Association of Golf Course Owners approached DOJ for additional clarification through the issuance of either additional regulations or guidance on whether or not golf courses should be required to have the single rider golf carts for golfers with disabilities. The owners association proposed that golfers with disabilities should have to notify the golf course at least a week in advance to request the single rider golf cart and many disability advocates think a week is too long and prefer the 24 to 48 hour advance request for notification. So the second part of this question is, how is DOJ responding to this request from the owners association, either issuing additional guidance or regulations in terms of the single rider golf cart? Did you get all that?
I got it. The first and third parts, the single rider golf cart issue, clearly the Casey Martin case was about professional golfers. So the specific holding is only about the ability of a professional golfer to use a cart. In fact, I think the impact of this decision, though, is going to be felt with literally thousands of golfers with a variety of disabilities who want to have access to the golf course. The issue of single rider golf carts has not been addressed by us yet. What we plan to do both in response to the National Association of Golf Course Owners, and also under our responsibility in terms of dealing with what makes an accessible golf course and operational issues that effect this is to put out a regulation for comment. And so by the fall, I certainly hope-a lot depends upon when we get a boss here. But we will be putting out a reg, and we will be asking for comments on how this issue should be applied in the ADA regulations. Should every golf course that is in the business of renting golf carts be required to have a single rider golf cart? How many should they have to have under? What circumstances should they be rented? And so I urge all of you to be aware of that. If you are interested in this issue, to comment on it when the regulation goes forward.
John, just for clarification, your proposal out there is not going to solely deal with golf, is it? It is going to deal with all of recreation
Much broader in terms of recreation. The Access Board has been proposing a series of regulations that we have not done our part on and we will be doing a series of regulations and putting them out for comment and also addressing a variety of operational issues. I will give you another example. The Access Board guidelines talk about various ways of making pools accessible and one of them includes a ramp into the pool. The issue is if a pool chooses that, do they have to have an aquatic chair that they provide. There are a lot of operational issues that we will be asking questions on. This will be an opportunity for people to give us their views, both people with disabilities, owners of these facilities, both public and private, both local government and public accommodations. Let me get back to the second part of your question, which is really what is the impact of the Casey Martin decision for public and private-I mean, it was really only about Title III, but I think the importance is really the interpretation of the reasonable modification requirement, which is in the regulations for both Title II and Title III. So I think that the Casey Martin decision has an impact on state and local governments as well as public places of accommodation.
Good. Thanks, John. Do we have our first on line question there?
This is Joyce from the Rocky Mountain ADA Center. Our question is regarding service animals. There is a 1994 DOJ policy letter that says that an animal will be considered to be a service animal if it is trained to assist a person with a disability, regardless of what the animal is called. We have got a two-part question. The first part is: Are thera-pets that are kind of an emotional support animal covered by the ADA? As we have understood it, they are not. But recently we have heard that possibly they are going to be, as long as they are called service animals and not thera-pets or emotional support animals. That is kind of the first part of the question.
Do you want me to answer that one now?
Yes.
The way we look at it is what the regulation says is that a service animal is an animal that is trained to provide services for a person. So something that is just a pet is not, and we try to be broad, because there could be a whole range of services that an animal can be trained to provide, but it has to be trained to do it and it has to be doing services. Because there has been a great deal of misunderstanding and we are told by a number of guide dog users around the country of abuses that are occurring and a backlash that is happening to people with service animals because of it. When we do the regulations that I am talking about in the fall, we are going to ask questions about this issue and be specific about this. Should emotional support animals be covered by the ADA? Should they be required to be in restaurants? Should they be required to be in public transportation? In our view, they are not covered now unless they are providing a service to the person.
Thanks.
And I realize that that is still a little ambiguous, therefore we are going to try and do this by regulation and put it out for comment and let everyone comment on it. But we have been-I can tell you that because people have tried to sneak their pets in under the guise of service animals, people who have legitimate service animals have encountered very difficult situations, so we are very much aware of that.
That is great. That is a frequent question. Part two has to do with-we have actually had this question come up twice in the last six weeks of individuals who are saying that they have more than one service animal. They are coming with two or more, enter into a place of employment or into a place of public accommodation.
This is new to me, which is always why I love doing these. I assume each animal does different services for the person?
That was not what we understood. But in one case it was a person who had two Rottweilers, and the particular individual was deaf and said that they absolutely needed both animals.
We have to look at-obviously each of these is going to be an individualized circumstance, but there would have to be a reason that you need both animals, that one animal is not able to do it. I think it would be difficult for us to require the variety of places that we require to accept service animals to accept two of them. But it is certainly something we would look at.
Okay.
Thanks for your question, Joyce. We told you we were going to ask you the hard ones. Karen, do we have our next hard question for John Wodatch?
Yes. This concerns, John, your comment that you made about Section 508. You said that it kind of refers to electronic technologies as far as federal government, the services and the programs that they offer, things like that.
Right.
I have two questions. I am wondering, one, if there is any part of Section 508 that even refers a little bit to state government, and if not, then two, are there any funds in the New Freedom Initiative for electronic technologies to go to state government? And I am thinking of a problem that we have in the state of Illinois with our state capital and their lack of accessibility for people with disabilities.
On the first part of your question, Section 508, no part of it applies to state governments. It is only the federal government. The New Freedom Initiative does have access to electronic technology, is one of the key parts, aside from 508, and there are some monies that are available. I am not sure how they apply. My suggestion would be to go to the White House website, which is www.whitehouse.gov. Let me make sure that is right and go to New Freedom Initiative, you can get a link to the money that is available, because there are a variety of money available from different agencies for different parts of the New Freedom Initiative and I am not sure if any of those monies can be used-how they will be done under the access to information technologies, but there is some money there for that.
Very good. Thanks for your question. Karen, do we have our next question?
Is there a city or municipal government in Utah that is currently being investigated by the DOJ for the Project Civic Access, and if there is not, how can we initiate that.
I can tell you that there were cities in every state, so the answer is yes for Utah and I do not think we have finished yet so I cannot say which one it is.
Thanks for your question.
We are doing it in every state and if you have specific complaints about things that you want us to look into, of course we would welcome that. We have many more complaints than we can handle, and I know the frustration that that brings for all of you. But although we have increased our staff, we get many more complaints than we can deal with.
John, we have an on-line question here. Over the last year or so we have talked about the possibility of there being an ADA notification act. Can you tell us what the status of that is, possibly that being resurfaced again. And more importantly, if such legislation were passed, how would DOJ respond to that?
For those of you who do not know, there was a bill before Congress last time. You may remember the hearings that Clint Eastwood came and testified at. That is how it got into the public domain. But it was a law that would amend Title III and say that a person with a disability could not sue a public accommodation unless they first went to the public accommodation and told them what the problem was and gave them 90 days to resolve it. And if they did not do that, they could not get their attorney''s fees recovered. It died in the last Congress. It has been reintroduced in this Congress and it had somewhat the same sponsors, but I think Senator Inouye from Hawaii is one of the sponsors of this. He is one of the main sponsors of the ADA and a person with a disability. So I think there is some credence to the fact that this bill might become law. If you are wondering why this has happened, there have been, especially in Southern California, Hawaii and in Florida, there have been a large number of ADA suits. By large number, I mean hundreds, often by the same attorney or groups of attorneys. They would go to a shopping mall and sue everyone in the shopping mall. This has created consternation and the call for this change. The Clinton administration was opposed to the ADA notification act. I do not know what the position of the Bush administration will be. I assume we will find out once we have people in place at Justice and other parts of the administration. I can tell you that just having talked to people in Washington that there is support for this. There is support for this that is wider than people who you might think are just opposed to the ADA. There is support by people who think the ADA is good but are worried about unscrupulous attorneys, is how it is often described, shaking down poor unsuspecting businesses for money, is how it is often pictured. So there is a chance that this may be enacted. I think there will be a lot more public debate about it. Our personal view is that the ADA notification act that was proposed before had very serious flaws and I think even its proponents agreed after the hearing-there was some very good testimony by people with disabilities across the country where you need to go to court very quickly-someone taking a test and not getting testing accommodations, someone at a hospital who needs an interpreter for surgery or psychiatric event that cannot wait 90 days. And I think there was a willingness to change the flaws and the piece of legislation itself. I think the disability rights community has been adamant that there should be no such thing, that people should have redress to the courts, and the real problem is people cannot get attorneys to take their cases anyway. But it is very much a live issue. It remains to be seen what happens with it. But it is not on the front burner at this particular time.
Good. Thanks, John. Do we have our next question?
Hi. I am Linda and I am representing the Deaf Center in York, Pennsylvania. We were wondering what kind of updates might the doctors and hospitals have as far as providing interpreters for the deaf and hearing impaired as to using note writing and so forth. And if these should be qualified interpreters and what the definition of a qualified interpreter would be.
I can tell you that one of our priorities over the past year has been the issue of interpreters, particularly in hospitals, but with doctors'' offices as well. We continue to get a large number of complaints. I was going to talk about, but I did not have time, we had a big settlement with a Utah hospital. There have been settlements we have had with other hospitals that fail to have in place the ability to provide interpreters for people who need them and in situations where they need them. If you are interested in this, we have a settlement with 32 hospitals in Connecticut that we view as our model for this. It deals with what is a qualified interpreter, it deals with the length of time that you need-like in Connecticut, it takes about an hour to get an interpreter there, although they have since found in the past year that they can do it in shorter periods of time, especially in urban areas. The circumstances under which they need to do it. We have issued a two volume set called Pictograms which can be used by hospitals in emergency situations until an interpreter arrives, there is a lot of information that we have available. I would go to our website and look at the Connecticut Association for the Deaf v Connecticut litigation and it has a lot of information. We continue to get a large number of complaints, it continues to be a priority of ours. We also continue spending a lot of our time trying to tell doctors'' offices about the disabled tax access credit, because they do not realize it is available. The complaint we get from doctors is we only charge $60 and it cost $75 for the interpreter. What we say to them is that s not the correct way to look at this. You have to look at it in terms of your whole business and there is a credit available for you if you either have less than $1 million worth of business a year or fewer than 30 employees, you can get a tax credit that can be used to offset interpreter costs. And so we are trying to get that word out as well to encourage people to realize that their costs can be recouped for this. If you need more information about this, we have a lot of it on our website. It is certainly an issue we are very much concerned about.
Many people with disabilities choose not to work because they are going to lose their benefits and they lack health care benefits. Is there any legislative changes coming to assist with that issue?
I am sorry to say I am the wrong person to ask that question. I can tell you that that is part of the New Freedom Initiative. I know that is a concern of the administration and that there was some changes in the last Congress and that there is the knowledge that the way the system is set up is really a disincentive for a person to leave the support system they have, because many of the entry level jobs do not provide health care and it certainly keeps people who want to work from going and seeking jobs. I think the folks at the Department of Health and Human Services are looking into that and looking into ways to use the existing Medicare or Medicaid systems to have amendments in that. I do not know of any particular legislation, but that does not mean it is not happening.
Hi. I was going to ask you to address the Buckhannon case that came out, another the Casey Martin case, and got swept under the rug. Also in regards to the Garrett case whether or not the DOJ was going to take on the state employees that are now not able to get damages. Is the caseload going to increase? And lastly, the nomination of-I believe his name is Sutton.
Jeffrey Sutton.
That said he did not think the ADA should exist and how are you going to make that mesh with the New Freedom Initiative. So I have three questions.
Okay. You are totally correct about the fact that now under Title I people cannot get money damages, but if we bring a lawsuit on their behalf we can get money damages for employees. We are very cognizant of that and are trying to expand the number of cases we bring under Title I. I think we see that as our obligation. And I can tell you much to the credit of the new administration, the first call I got from political people in this administration was how are you going to pick up the slack, what are you going to do to take more of these cases? So I think there is an awareness of that and we are trying to identify with the EEOC cases where we can do that. I have not yet seen an increase in the number that we are getting but we are very much aware of that. We have let the private bar know about that. And our interest in doing that.
Would it be like co-counsel?
Yes. One possibility. But in order to get damages we have to be bringing the lawsuit. The Jeffrey Sutton, all I can say, Jeffrey Sutton was the attorney who represented the states in the Garrett case and did similar work in holding the Age Discrimination and Employment Act unconstitutional. I know the disability community is working hard to torpedo his nomination. Certainly he is one of the justices that the White House-one of the people the White House has put forward to be a judge, I think in the Sixth Circuit. I am not sure. But that is certainly outside the realm of my involvement or expertise. All I can say is that the notion of selecting judges is certainly mystical to me, and I watch it, although it is certainly very important, the nature of the judges we have in terms of the kind of cases and the decisions we get. And your third question?
Buckhannon. The one that overturned 10 of the 11 circuit court''s decisions regarding attorney''s fees.
Okay. The Buckhannon case probably will have-for those of you who do not follow this, it involves sort of a legal technicality, but it is a very important technicality because it says that you can only get attorney''s fees in a case if you prevail in the actual case, meaning you actually have to go to trial and win. In the past if someone brought a case and the case was settled, it was considered that they prevailed and therefore their attorney got attorney''s fees. You may say why is it so important that you talk about attorney fees? No one is going to bring a case of a disabled person if they are not going to be able to be paid. And most disabled people cannot afford to pay their attorney. So it comes out of the court action itself. This may have the effect intended or otherwise of drying up the number of attorneys who will bring cases. I can tell you that the disability rights bar is working with members of Congress to seek a change in the statute to recognize the position that was taken in 10 of the 11 circuits before. In other words, that who the prevailing party is is as it was before the Supreme Court decision. So I think, unlike the Garrett case, this one is susceptible to a legislative fix.
Thanks for your questions. I think that we have one more on-line question, John, and then we will throw it back to you also for closing comments, as we are coming up at the top of the hour.
My question is regarding the Olmstead case. I am wondering if a person wants to move from an institutional setting into a group home setting, would that affect that kind of case at all?
That is exactly the kind of situation that is at the heart of Olmstead. What the president is asking mostly HHS to do is work with the states to come up with comprehensive plans to move people from large scale institutions into community settings, group homes, where they can get the same services and live in integrated lives in their community. So if you have complaints of that nature, those should be brought to the attention of HHS.
Thanks for your question. John, in a very short amount of time we tried to get as much information out of you as possible and limit how much of a hot seat we turn up the temperature there. But thanks so much for joining us today. Do you have a few brief closing comments for us?
I guess the thing I would ask all of you, we have a new administration coming. You may think that they are here, but it is really still forming. One of the things that we will be going through is sort of probably setting our priorities with our new boss and so you should be aware of that. We continue to have as our priorities looking at interpreter cases and the health care setting, trying to get involved more in transportation issues to ensure that accessible transportation is there and to deal with the large scale complaints that we get on new issues. We will also be doing a lot of work on regulations in the next year, so I hope that you all be active participants in what we do because we really do need your guidance.
Good. Thanks.
And thank you very much. It is always a delight to be able to listen to your questions and try to answer them. I apologize for the inability to answer them all.
Thanks so much for taking time out of your busy schedule. It is always a pleasure to hear from you and what is going on at DOJ. For those of you that have joined us today, we hope that you will be back to join us again next month, on August 21st, as we talk with Betty Siegel. Betty is the accessibility coordinator for the Kennedy Center for Performing Arts. She is going to talk about access for patrons to performance venues. For those of you who have additional questions, please fell free to contact your regional Disability and Business Technical Assistance Center at (800) 949-4232. Thanks for joining us today and we hope to have you back again next month.