Ladies and gentlemen, thank you for standing by, and welcome to "Ensuring Effective Communication: Whose Responsibility Is It?" conference call. At this time, all participants are in listen-only mode. Later we will conduct a question-and-answer session and instructions will be given at that time. If you should require assistance during this conference please press star then 0 on your touchtone telephone. As a reminder this conference call is being recorded. I would like to turn this call over to your host, Mr. Peter Berg.
Alright, thank you very much, Operator. Welcome to everyone from around the country that is joining us today. I hope you are enjoying some pleasant weather and not suffering in the heat and humidity we have had here in the midwest over the past few days. Welcome to the 2009 ADA Audio Conference Series, the audio series is a project of the National Network of Regional ADA Centers, also known as Disability and Business Technical Assistance Centers or DBTACs. The ADA Centers are funded through the U.S. Department of Education, National Institute on Disability and Rehabilitation Research, NIDRR, the contact the regional ADA Center that serves your state, you simply need to call the toll-free number, 1-800-949-4232. As a reminder today''s session is being archived. We have participants joining us today by telephone, real audio streaming through their computers and individuals participating through realtime captioning. Again, todays session is focusing on effective communication, talking about the responsibilities of individuals requiring alternative communication and the responsibilities of those entities that are receiving those requests for alternative communication. And we are very pleased to have with us today Rosaline Crawford, who is the Director of the Law and Advocacy Center with the National Association of the Deaf. Rosaline joined the National Association of the Deaf in 2002 and in 2007, she became Director, taking over all the duties of the Legal Advocacy Center, with a particular focus on issues regarding accessible technology and telecommunication devices. Rosaline spends time advocating and lobbying on behalf of individuals that are deaf and hard of hearing on Capitol Hill. So at this point, I am going to turn the session over to Rosaline. She is going to give her presentation and following that, there will be an opportunity for participants to ask questions. So, welcome, Rosaline, and go ahead, it is all yours.
Hi, good afternoon, everyone. I believe you might have access to a power point presentation that I submitted and that is the outline that I am going to follow. I am going to give you a little bit of introduction about myself, I am going to slide pretty quickly through the laws that are at play here, the Rehabilitation Act and ADA. And I am going to assume that most of you are familiar with those laws, and then I am going to hone in on some of the particular definitions related to effective communication, and at the end provide you with some additional resources and contact information. So that is the outline of where we are going to go and I am going to start here with introduction. I hope that most of you have heard about the National Association of the Deaf and for those of you who have not, we are one of the oldest consumer advocacy organizations, been around since 1880, we are a membership organization, we have affiliates, organizational affiliates as well as state association affiliates, one state association, first state, obviously and then the District of Columbia as well. We also run a federal grant program called the Described and Captioned Media Program, this is we have been handling the captioning part of that program for many, many years and during the last go-around with the Department of Education, we also kind of subsumed and merged with the video description services. This program basically provides accessible media for educational material K through 12. Educational material. We also have a biennial conference, our next conference will be in Philadelphia in 2010, in the summer. The Law and Advocacy Center of the NAD it is what I call the heart and the soul of the organization. Our purpose is to educate, advocate and litigate on behalf of and to empower deaf and hard of hearing people. We act as a clearing house for general legal information about deaf-related issues. We advocate on public policy issues of concern to our community, particularly and almost primarily at the national level and often in collaboration with other national disability related organizations. We also because we happen to be lawyers we also represent Deaf and hard of hearing individuals exclusively in disability discrimination, civil rights cases, we are a little picky, we are very selective in terms of which cases that we take. We attempt to take cases that are fairly, present new issues and have the potential to establish powerful principles regarding equal access. Peter, I am just going to ask for a sound check. Am I coming through okay?
Yes, your sound is fine.
Thank you. Moving on here to the laws at issues here. We are looking at the Rehabilitation Act of 1973 as well as the Americans with Disability Act of 1990. I am sure most of you are familiar with the Rehabilitation Act, Title I deals with vocational rehabilitation services and Title V deals with federal activities. Title V is generally our focus and Section 501 on dealing with federal employment, Section 504 dealing with federally-funded agencies and programs. The Section 501 on federal employment, and affirmative action requires the federal government to employee and advance in employment qualified individuals with disabilities in regards to the federal government to provide reasonable accommodations to employees and applicants with disabilities. Employees or applicants with complaints, there is a, there are time limits, there are very strict, I think it is 45 days within which the discrimination happens, that a complaint must be filed and folks must go through the agency''s Equal Employment Opportunity office. And if anyone needs information about that process, it is fairly convoluted. I generally refer people to the EEOC website that has a fairly comprehensive description of what that process entails. Section 504 applies, we forget sometimes it applies to federal agencies and also to federally-funded programs and activities. It is the, you get federal money, basically you have to comply with this law, so that''s terrific. It prohibits discrimination, it requires the provision of auxiliary aids and services when necessary to ensure effective communication unless it would result in an undue burden or fundamental alteration and those are terms we''ll discuss further on. Complaints, again, there are usually time limits, I think it is 180 days, with 504, one of the remedies, potential remedies are damages, monetary damages, which tend to be important when you try to make a point. We have Americans with Disabilities Act, Title I being employment, Title II state and local government, Title III public accommodations, Title IV telecommunications, relay services and Title V has all the miscellaneous provisions. Title I, 15 or more employees means you are covered, it covers qualified individuals with a disability, requires reasonable accommodation and reasonable accommodations is an interactive process, the employer, the applicant or the employee really do need to just have this interactive, ongoing dialogue about the accommodations that are needed in order to do the job. The employer can choose the accommodations but the choice must be effective. Again, complaints, there are time limits and remedies as well. And with Title I employment discrimination virtually you have to go through the EEOC, the Equal Opportunity Commission first, allow that process to go forward and get your letter, from the EEOC. It is a right to sue letter before you can go to court. So it is pretty strict. ADA Title II state and local governments, public entities, agencies, programs and services, again they must provide auxiliaries and services and again there are complaints, time limits and remedies for that as well. I think it is a 180 days for the complaints. You don''t have to file with the Department of Justice, but you can. You can also go to court, which is terrific. ADA Title II there is a regulation specifically related to auxiliary aids and services, on the power point it gives you the citation, 28 CFR section 35.160. This regulation states that a public entity shall take appropriate steps to ensure that communications with applicants, participants and members of the public with disabilities are as effective at communications with others. And this is, this particular language is unique to Title II, it doesn''t appear in Title III but I would argue that it applies equally to Title III as well and this provision is really strong, when you''re talking about whether the communication is effective, well, if you were, you know, having access to the same communication, you know, how would you assess whether or not it''s effective as to you? So whatever the communication is, it is got to be as effective as it would be if you didnt have a disability. The regulations goes on to say that a public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program or activity conducted by a public entity. And that is determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities and here again we have language that is different than Title III dealing with businesses and public accommodations. Here it says that a public entity shall give primary consideration to the requests of the individual with the disability so if the individual, you know, says, well, you know, I really, I would like to have a qualified sign language interpreter or I would like to have realtime captioning as the accommodation, then the public entity basically must do that unless it can demonstrate that it would be an undue hardship, undue burden or there would be an alternative that would be equally as effective. So this is, it is very strong language in Title II and it is a little bit different in Title III and we are going to get to that now. Title III of the ADA applies to public accommodations, private businesses, profit, nonprofit, regardless of size, as this is in contrast to ADA Title I which applies only to employers with 15 or more employees, a lot of folks out there in the community and in the business community think oh well then if ADA Title I doesn''t apply to me because I am small then the ADA Title III doesn''t apply to me either and that would be an incorrect interpretation. ADA Title III applies to all businesses regardless of size. And these businesses must provide auxiliary aids and services when necessary to ensure effective communication unless it would result in an undue burden or fundamental alteration. There is a complaint in fact in Title III, there are no time limits to file a complaint with the Department of Justice, there are time limits with respect to filing a lawsuit in court. These time limits vary state by state, the remedies are equitable relief, that would be like a court order cease and desist, but there are no damages. You can''t get money for ADA Title III violations. That is just equitable relief. ADA Title III regulation, citation on this regulation regarding effective communication, the number is 28 CFR section 36.303. This particular regulation is actually; it says effective communication, and it says the public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication for the individuals with disabilities. Auxiliary aids and services must be provided unless doing so would fundamentally alter the nature of the service or result in an undue burden and if providing a particular auxiliary aid or service would result in a fundamental alteration or undue burden, then the business must provide an alternative if one exists that would ensure to the maximum extent possible receipt of the business services. The Department of Justice guidance for ADA Title III recommends or suggests that businesses should consult with an individual before providing a particular auxiliary aid and service, consult with is not as strong, we are certainly not in my opinion, not as strong as the language and the regulation for ADA Title II which says give primary consideration to the request of the individual with the disability. Primary consideration is a little bit different than consult with and this "Consult with" language doesn''t appear in the regulation itself, it appears in the justice guidance so it doesn''t quite have the strength. Department of Justice guidance does say that it is not difficult to imagine a wide range of communications involving areas such as health, legal matters and finances that would be sufficiently lengthy or complex to require an interpreter for effective communication and we will talk a little bit more probably within the Q and A about given the certain different facts and circumstances, you know what is, what is going to work, what is going to be effective. That is what that would be required. The definitions within Title II and Title III
Excuse me, Rosaline, can I get you to speak up a little louder. Thank you.
Auxiliary aids and services is defined both in the regulations for Title II and the regulations for Title III, the definition is identical. It provides a non-exhaustive list of examples of what would be an auxiliary aid or service and these are just examples, they are, you know, not the be-all and end-all, technology and everything changes fast and so with different things that have come into play that can be used and just because it, they are not on this list doesn''t mean they can''t be required. The list includes for people who are Deaf or hard of hearing qualified interpreters, note-takers, computer-aided transcription services, written materials, et cetera, et cetera, for people who are blind or have low vision, qualified readers, taped text, audio recording, Braille materials, large print materials, auxiliary aids and services would also include the acquisition or modification of equipment or devices and other similar services and actions. The regulations also define both for Title II and Title III what is a qualified interpreter and qualified interpreter is an interpreter who is able to interpreter effectively, accurately and impartially, both receptively and expressively. So both streams of communication from, say, for example, from English to American Sign Language as well as from American Sign Language to English and the interpreter must be able to use any necessary specialized vocabulary, say, for example, medical terminology or legal terminology. In Title II, the fundamental alteration, undue financial and administrative burdens is slightly different than the way that undue burden is looked at for Title III, so I have provided at least here in the power point the definition of undue financial and administrative burdens for state and local governments under Title II and it provides that where, where someone in a public entity thinks that, you know, the proposed auxiliary aid or service would alter the service, fundamentally alter the service or program or would result in an undue burden, then the public entity really has the burden of proving that it would result in an alteration or burden. And that decision must be made by the head of the public entity or his or her designee after considering all the resources available for use in the funding and operation of the service program or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. And then if an action, if they, you know, they reach that conclusion, then the public entity still needs to take any other action that would not result in an undue burden but would nevertheless ensure that to the maximum extent possible, individuals with disabilities receive the benefits or services provided by that public entity. So this is, you know, in as much as you have a public entity that says, oh, yeah, well it would be expensive, that is not good enough. They would really have to provide, do a fairly comprehensive analysis here and provide that justification in writing and then still go ahead and provide whatever they can provide to make sure that the individual has access to the greatest extent possible. For Title III for businesses, the analysis is different and the requirement is a little different. Undue burden is defined as a significant difficulty or expense and the factors that are looked at here with figuring out whether or not that is in fact an undue burden are the same factors under the employment Title I section, and these factors then you would look at the, what is the nature and the cost of the auxiliary aid or service that is needed, you take a look at the overall financial resources of the entity, how many people are employed and that is why I say it is the same as employment Title I, how many people are employed, how big is it, what is the effect on the business''s expenses and resources? It allows them to take a look at any legitimate safety requirements and the impact on the operation of the business itself. It allows some consideration of whether the business has one or more sites, the relationship between the any parent corporation or entity that happens to exist, and it may include information and consideration of financial resources and operation of the any parent corporation or entity. You know, taking a look at this, you know, basically what you do is you look at the cost and the, it is oftentimes the cost but and the difficulty to provide the requested auxiliary aid or service, whatever it is that is going to be needed, and you compare that to the business''s overall financial resources and expenses. You don''t just look at, oh, well, this particular program, you know, of the entity, that is their little budget line. You can go beyond that, and take a look at the overall impact on the entire business. And, so we could discuss that further in the Q and A and again all of this is done, it is on an individual case-by-case specific facts have to be known and looked at in order to make those kinds of determinations. There is no bright line, black-and-white rule to figure out whether or not something going to be an undue burden, a significant difficulty or expense. In terms of resources, I invite everyone to take a look at our website, the address is www.nad.org, there is a section on our website called "Issues and Resources" and this has information about the ADA, 504 as well as other laws that we are, we deal with. We also have some advocacy memos on there for consumers and others that can be used to help educate businesses and government entities and naturally we are always available for consult as well. The other resource that I oftentimes refer people to is the Department of Justice website, www.ada.gov and there they have a section on publications and you can access the laws there, the regulations, technical guidance and other material they have done. I am sure that DBTAC has also provided a lot of information on its website as well, and at the end is my contact information, I am sure you can, you know, reach me by e-mail by phone, videophone, TTY, you name it, I try to have it. And ask me again for any further information that might be helpful to you. I also just want to in the materials that I sent over, I sent over excerpts of our comments to the Department of Justice last year, there was a notice of proposed rule-making for ADA Title II and Title III regulations and there was these sections in the regulations that I have just read to you are the current regulations and the Department of Justice proposed to update these. We provided some, I think, significant feedback on these provisions with respect to the community of Deaf and hard of hearing people and I invite you to read through those and I am sure some of those issues may come up in our question and answer.
Actually Rosaline if you could comment on that, a question submitted electronically about the proposed revisions to Title II and Title III and if you could talk some about the expansion of the list of examples of auxiliary aids and services and some the language changes and the proposed revisions.
Okay, let me just be clear, Peter. You want me to go talk about them now?
Yes.
Yes.
As long as you mentioned it there, I thought this was a good place to jump in.
Sure, sure. In, and for Title II, the section 35.160 on communications, the provision that calls for communication as effective as communications with others is still there. The department sought to add the term "Companions" so it is not only, you know, communication with applicants, participants and members of the public, the department added the word "And companions thereof" to be as effective. One of the things certainly that we have found, and I am sure perhaps you others have, some of you folks have found, too, some entities think that, oh, my obligation is only to the individual with the disability who is actually participating in my program. And the Department of Justice has tried to make clear it is not just the individual with the disability, perhaps, but it is also to people who are with accompany people and these companions may have disabilities themselves. And the obligation to communicate effectively extends basically to anybody so that is part of it is helpful to try, Department of Justice is really trying to make sure that companions with disabilities are included as well. We, so basically we said that we think it should be applicants, participants, companions and members of the public with disabilities and we just thought that was a clearer way to actually phrase that. Department of Justice was trying to make sure that, lets see, make sure they are defining who is a companion to mean a family member, friend or associate of a person, associate of a program participant who, along with the participant, is an appropriate person with whom the public entity should communicate. We think that the companion, it should, you know they are trying to identify companions, companions with a disability. Really it is for us, you know, it is family member, friend or associate of any individual with a disability with or without a disability who, you know, along with that individual is an appropriate person with whom the public entity should otherwise communicate so that the obligation extends to those folks as well. The Department proposal, I think, is it they had the, where in the existing regulations where they had the primary consideration with the regulation this is in determining what kind of auxiliary aid or service is necessary, the public entity shall give primary consideration to the request of individuals with disabilities. That regulation for some reason got left out of the proposed regulations. We are confident that this was an oversight and was not intended, but we certainly expressed our strong desire to make sure that it remains in the regulations because it is very strong language, and very helpful to our community. The Department also was trying to identify or provide greater clarification to trying to figure out what type of auxiliary aid or service is necessary and the department has proposed to basically to put in the regulations something that it''s had in the guidance for, since the beginning and these are some of the factors that you should consider when trying to figure out what is going to be effective, you know, the, you have to look at the language and method of communication that the individual uses, you have to look at the context of the communication, the nature of the communication, the length or duration, the complexity of the communication and the overall circumstances and the environment of the communication to figure out whats going to work. For example, I often say if I am deaf and I go to the deli counter and I want to order a half I pound of ham, you know, I think I don''t need an interpreter for that situation, I think, you know, gesturing, pointing, writing a note, is probably going to be sufficient to communicate my order to the deli person. Compared to I think I have had a heart attack and I need to talk to my doctor. At that point, I may say, no, I need an interpreter for this because writing notes is not going to work. Let''s see. Department of Justice both in Title II here as well as in Title III proposed regulations, we are really trying to articulate more clearly to discourage use of family members or companions as interpreters. And we agree that that is the case, you know, we think it is also important that the person who is being suggested, that they should interpret for another person, be fully apprised of their right to say no. A lot of folks are just totally intimidated when it comes to those situations and feel powerless to say no. And we also emphasize that children should never be used to be interpreters. Department is also suggesting that, you know, in case of an emergency, a person might be asked to provide interpreting or facilitate communication but this is, you know where do you draw the line and it is trying to make sure that in an emergency situation like a hospital emergency rooms and police and fire and everybody, they have got to deal with emergencies all the time and they should have procedures already in place to deal with getting interpreters or providing accommodations quickly, and really shouldnt be an excuse. In the, let''s just take a look at here, the Title III. There were some differences between Title II and Title III. (Pause.) They deal again with companions and using people to, using other people to provide interpreters or other services and we have advocated once again here that the Department of Justice should also say that a public accommodation should get primary consideration to the requests of the individual with the disability rather than just simply consult with. It is the, the guidance right now, it says that a public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results ineffective communication. In our experience businesses and entities under Title III, they see that and what they see is, the ultimate decision as to what to provide rests with the public accommodation and what they fail to see is the clause that follows that statement that says "Provided that the method chosen results ineffective communication." It is like they only see that I get to make the decision but they don''t see that it has to work. And it tends to put the person with the disability, the Deaf or hard of hearing person, in the position of what I call fail-first. I don''t get what I need, I don''t get what I want unless and until first I have to try what you think will work and fail and then maybe you will consider what I think I need and want. So, for example, I am a person who is Deaf and I try to make an appointment with a doctor''s office, be it a new doctor or a specialist doctor or whatever, and I say I am Deaf and I communicate in American Sign Language and please provide an interpreter. And the doctor''s office will say, I communicate very nicely by writing notes, I can write with you. And so that is what I am going to provide because I get to decide. Well, the person who is Deaf then is put in the position of having to go to that appointment and use that appointment as the opportunity to demonstrate that this communication is not effective. And then try to convince the doctor again that "I really need an interpreter" and now we have to make a second appointment and I have to wait some more time and come back again and just, what I call fail-first. I don''t like fail-first. I think a person with a disability is in a much better position to know and understand what they need to communicate or do whatever and really people who don''t know that individual are the ones who really need to give primary consideration to their requests. And, you know, I, I just can''t imagine a person with a disability requesting something that is not going to work or that they don''t think is going to work or requesting something that is unnecessary. These resources are scarce in the community and they are prized, so nobody wants to be wasteful. So, I think we are really advocating, again, for Department of Justice to put that language in Title III so that more emphasis gets put on the judgment of the individual with the disability to make that determination about what is going to work for him or her. I think that is pretty much covers those changes. I am sure theres more in there and be happy to field questions.
Okay, are you ready for questions now?
I am always ready. I love questions!
All right. Operator, if you would come back on and let participants know how they can get in the queue to ask questions, please.
Certainly, ladies and gentlemen, if you wish to ask a question, please press star then 1 on your touchtone telephone. You will hear a tone indicating you have been placed in queue. If you press star 1 prior to this, we ask that you please do so again at this time. You will remove yourself from the queue by pressing the pound key at any time. If you are using a speaker phone, please pick up the handset before pressing numbers. If you have a question, press star then 1 on your touchtone. One moment for our first question.
While we are waiting for those, Rosaline, you mentioned the materials are available on the DOJ website. They have got some good communication materials, two documents, one for accommodating hotel guests that are blind and low vision, and another one, accommodating or serving guests that are Deaf or hard of hearing, and then they also have one that is part of their business connection series on hospitals'' obligations to ensure effective communications with patients, visitors, family members that are Deaf or hard of hearing. And while we wait for our first question, I received a question submitted electronically. In this one is in the area of wanting to know some best practices. Wanting to know how do most companies in the private sector fund effective communication costs. Is it, do they have a general fund or does it come from a particular office? And I think that this question probably could be looked at both from an employment perspective as well as a Title III perspective, whether or not the costs come from the top of the corporation or whether those costs are assigned to a particular branch or particular office. Do you have any best practices or any information on that?
Well I am not an accountant and to the person with the disability, quite frankly, I don''t think it really matters. I think in terms of we just want the access. I think that businesses as well as government entities need to understand that it, you know, when looking at whether or not the cost is going to be significant, you know, to be excused, that it is not just going to be the little program or the little departmental or office budget line that is going to be looked at. So it is the entity as a whole needs to, as you know, be expressive and establish a commitment to ensure accessibility and to actually establish budget lines, whether it is at the top, centralized or by department, that this budget line will be sufficient and the sufficient is a part based on history as well as projection. And I think one of the things that we find in my experience in dealing with businesses and service providers that contact us often times it is oh, well, we have never had a Deaf participant or patient or conference attendee and this is our first time that we have ever had this question or had somebody request something. And it is amazing to me that after almost 20 years of the ADA and almost 35 years of Section 504, that there are still people out there that say I have never had news of this. This, you know, this is what happens. It is a constant education program, not a one-shot deal to try to educate people because new people come in and new businesses evolve and everybody is still learning.
Absolutely.
So we, it is sort of like we certainly encourage every single business and entity to establish the budget and build it in their budgets and work on experience to make sure that budget is then sufficient. So it is not a surprise. The cost of accommodations today is part of the cost of doing business. And that is the message that all new businesses should get.
Excellent. Operator, may we have our first question, please.
Yes. Not a problem. First question. Your line is open.
Thank you. I am the Executive Director of a Center for Independent Living and we occasionally offer workshops and conferences and caucuses in which we anticipate individuals who are with hearing difficulty will be present. What kind of policy or is available with our small budget, we could provide that accommodation but yet not put ourselves in the situation where we are paying an interpreter to be present when not there is no one there that would require that accommodation.
That is an excellent question. I think when public entities in particular and businesses and services like independent living centers, I think it is so inviting, I mean, it is so welcoming to see on an advertisement, you know sign language interpreters will be provided. It sends a message of to me it is joyful, because it is so welcoming and open, but I also from a logistics and limited resource perspective, I understand that, you know, you don''t necessarily want to provide accommodations that are not going to be used so you know especially for small entities, unless you know for certain that you have got folks that are going to be coming routinely, that you would provide the accommodation routinely, that is one thing. But if it is not routine, then at least provide a notice on the advertisement or the announcement, you know, to request interpreters or captioning or other accommodations, please contact, you know, and put at least a phone number, for people or an e-mail address or both, for people to contact a specific office or specific individual to make those accommodations. We provide accommodations as well, for example, for our conferences, and it is not uncommon to find a notice, you know, please make your request, you know, two weeks in advance or three weeks in advance, depending on the available resources in your community. You know, and requests received with less than two weeks or three weeks, whatever you have decided is appropriate, you know, you will do your best to fill requests for accommodations that are provided on shorter notice but it is just harder to guarantee. So you can request that an accommodation request be made within a reasonable time in advance of the event. Does that answer your question?
Yes, it does. We just often have that come up in fact even in our mayor''s committee meetings for people with disabilities, you want to provide the accommodation but the funds just aren''t there to provide one if they are not necessary and then we get the other side of the story which is, well, nobody else is required to RSVP so why should we have to? So that is where I am some seeking assistance and suggestions on how to handle that situation.
I think if the justification is quite simply, you know, the accommodations for like interpreters and captioners, you know, in a lot of communities quite frankly these accommodations are very scarce and you don''t want to be wasteful about using or putting interpreter services or captioning services, you know, where they are not going to be used because they are scarce resources. And I think that is to me a more logical and more acceptable justification for having to make the request without even mentioning cost. Because people in the community here quite frankly it is common knowledge these days that qualified interpreters are, can be scarce. In some communities very scarce.
That is definitely the case here. Thank you.
Thank you for your question. And another question that is submitted electronically that is sort of along those lines but pertaining to public entity, state and local government entities and whether or not they are required to have materials in alternative formats and provide interpreters for public meetings that a, for instance a city would hold.
And again, I think it is a matter of when you have or when you provide the accommodation without asking, you know, to do so routinely when you know they are going to be requested anyway is, should be done. When you provide it not knowing that they are going to be requested, you have to, you have to consider the availability of these resources in the community, but at the same time, when you announce that they are going to be provided, the message that it sends to the community that needs those accommodations, the message is we expect you, we want you, we welcome you. And so you are balancing those kinds of considerations.
Okay. Excellent. Operator, can we have our next question, please.
Yes, of course. Next question, your line is open.
Rosaline, thank you very much. I had a couple things. First, would you be able to talk a little bit about the other document that came to us on the Supreme Court or Superior Court of New Jersey, that document for the Borngesser versus Jersey Shore Medical Center. And as for my question, the question I had, had to do with your comment about people with, that were just along for the ride, if you will, being accommodated with for example an interpreter. My question comes up in some of our hearings, for example, the civil rights commission or some of our department of natural resources, hunter classes, where they simply bring a Deaf son or a friend along with them, they are not participating in the hearing and they are not a party to the hearing, they are just simply there as an invitee of the individual who is participating. You are saying that that person should be accommodated with an interpreter as well?
You betcha! Let me get to your first question. Your first question was about Borngesser, Superior Court of New Jersey. That is the case I sent along. I sent that case because there are very few cases that I am aware of, certainly if folks in the audience here know of other cases that I don''t know about, please share them with me, but this is a particular case that actually discusses what does it mean effective communication? What does that mean? And in this case they actually talk about it, there is also a citation to a law review article that discussions what does it mean, effective communication and so that is why I kind of provided it. It also suggests, too, that you know, how do you evaluate whether the communication is effective? And, it is not just the perspective of the public entity or the business, you know, hey, I know I communicate good but it is the perspective of the individual with the disability that has to be considered. You have to ask the person, you know: Is this working for you? Is there something else that we should be doing? So, you know, communication is a two-way street. It is not just me talking to you but you talking to me. It is the opportunity to ask questions and get answers, so that is why I provided this particular case for that proposition that the effectiveness of the communication must be viewed also from the perspective of the of the persons with the disability. And that must be taken into consideration. Okay. As to your second question, you know, if a meeting is open to the public, if the program is open to the public, then everybody who attends should have access to that meeting. And it is the same with courts, I mean, often times people talk about well the court must provide accommodations for the person with the disability if that person happens to be the defendant or the plaintiff or the witness or the juror but you know if a person just shows up to observe the court proceedings and they happen to be an individual with a disability, you know, we don''t need to provide accommodations for that person and that kind of thinking and rationalization is very short-sighted, you know, if you are going to open it up to the public and you are going to have people there, then I think the obligation to ensure that program is accessible extends to everybody who could possibly attend.
I am sorry. I wasn''t clear. I need to make sure that you understand. I am not talking about a meeting that is open to the public. I am talking about, for example in the NRA had a class where you have to sign up and register for. An individual has just bringing someone along uninvited, you know, that they need to take care of while they are there or the, in the hearing, again nobody who is participating in the hearing, it is a, an individual, for example, a mediation that the individual is participating in. But the individual who is Deaf is not a participant in it.
Why are they even in the room?
Well, good question. (Laughter) Because they are taking care of them. I am not sure exactly why.
Yeah, I am not sure exactly why either.
But you are saying if they were not invited or if they are not, if we are not talking about a public meeting, then that is a different deal?
Yeah, I mean, the question then might be who are you communicating to? You know, who is the, who is actually doing the communicating and who is communicating, you know, you know. If you are not communicating with the person with the individual, if you are not communicating with the individual with the disability, if that person is just, could be sitting out in the other room or needs to be in the room because somebody needs to supervise them, then they are not privy to and not participating, not receiving, not privy to the communication, then, no, I don''t think that you need to hire an interpreter in that case.
Thanks for your question. Operator, next question, please.
Of course. Our next question. our line is open.
Okay, time for you guys, hold on for a second, please. Good afternoon.
Alright, go ahead with your question.
Calling from Des Moines, Iowa. I wanted to ask about the communication. I understand that the Deaf community has a right to an accommodation, TTY, videophones, et cetera, but a big problem we run into is that when there are Deaf adults with hearing children, and the manufacturer of the equipment is not providing it to, like, the kids or the extended family so they can communicate with their family members, can you speak a little bit about that.
I just want to make sure that I understand your question correctly because it sounds to me more like a question of videophone distribution. And right now the Federal Communications Commission has said that videophones that have ten digit numbers, you know that have the geographical phone numbers attached to them, that the numbers can only be given to people who are Deaf. And that is the FCC and that is not the ADA and it is not Section 504. It is the FCC and they have limited the distribution of geographic-specific 10-digit phone numbers to people who are Deaf or have speech impairments and we have objected and we have petitioned the FCC to change that rule, specifically for the reason you have cited, that we believe that people who communicate in sign language, whether they are Deaf or hearing should be able to communicate with other people who use sign language, whether or not they are deaf or hearing but oftentimes it is hearing and deaf and they both know sign language and they should be able to communicate directly with each other, and not have to use a relay service which costs the community money. And so we have requested that the FCC change that rule and we are hoping that they will do so soon. Does that answer your question?
Yes. Thank you.
Alright, thanks for your question. Operator, next question, please.
Thank you, next question. Your line is open.
Thank you, I have got a question. I work for a small nonprofit organization that does training, most of our attendees are people that are employed by other community based organizations and they through the course of their job, their company pays the registration fee for the training, also pays their salary for the course of the time they are in training et cetera. And it is just considered just one of the perks of their job. We have had a couple of people who are Deaf who have attended, we have had some individuals who have attended as private individuals and of course we provided interpreting services for them but for those who are employees of these of another agency, you know, my contention was, it could be argued that the cost or the requirement for providing the accommodation should fall on the employer because they are attending the class and something that would really be in the course and scope of their job. I guess I was just wondering what your feedback would be on that.
That is a really good question and it has come up before, not in any court cases or interpretation by the Department of Justice that I am aware of. You would think that perhaps somebody might say, well, you know, Title I employment obligations trump business obligations under Title III or vice versa. But nobody has said that yet. And I think generally the consensus tends to be that each has their own separate obligation. So just so that you get and I think quite frankly to be honest with you in my opinion, I look at again who is doing the communicating, and it is that entity that is doing the communicating that must have primary obligation to make sure that communication is accessible. And I know that is not what you are going to want to hear, but I think the entity that is providing the education services needs to make sure that those education services are accessible.
Okay.
And I think that is who ends up with the primary and I feel for and I have empathy for, particularly small nonprofits but just the same for everybody, if, because, especially when you have a training that goes on for days or a week, you know like a big conference that goes on for a whole week, the cost of the accommodation can be high, I am not going to say it is an undue burden but it can be high and in those cases where it is significant. There is nothing to prevent the entity that is providing the training from saying these costs are significant and because you are doing this as a work-related activity and because your employer has similar obligations under the ADA to make sure that you have equal opportunity to training just like all your fellow employees, we would like to talk with your employer and perhaps between the employer and the educational service provider, we can negotiate, or perhaps share the cost of the accommodation. You know, what is the employer, what is the worst they can say is no. So you might as well ask the question.
Right. Okay. And that is in fact what we have done. I was just wondering if there was any, you know, precedent to support that or to support the responsibility being one place or the other and it sounds like there is nothing official yet.
Nothing officially yet, but again that is what my part of the evaluation or assessment is who is doing the communication?
Right, right. Okay, well that is good. I do have one other question. I don''t know if I can get it in here.
Squeeze it in.
Great, thank you. I do like what you said about I think it was from Department of Justice saying that family members should be discouraged from serving the role of interpreter. I am assuming that that was when it was the public entity kind of putting the family member in that position. We have been on the opposite end of that where the Deaf person says I want my mother, spouse, etcetera to be the interpreter here. We have had questions about the quality and clearly of course the objectivity of the family member being the interpreter there but it was the stated preference of the Deaf person to have their family member be the interpreter. What would be your reaction to that?
Well, I think you would have to probably make sure the person who is Deaf knows that they have the right and that the entity will in fact provide interpreter, qualified interpreter services and they don''t have to wait three days for that to happen. That that they, it will be quickly and it will be qualified and I think that you need to make sure the individual who is the family member also understands they should not feel forced or coerced by anybody to provide interpreting services if they would rather not. But I also understand from, I have had, I know people in the community to say no, no, don''t bother, my husband or my wife or my sister, you know, this is just how we have always done it, you know, this is what I want and you know to the extent that happens and I think you should have everything in writing so that the person can''t come back and complain. If that is in fact what they want, the entity should probably just want to protect itself and get it in writing, so that they the accommodations were clearly offered and rejected and that that is what the stated desire of the individual was. So that way if a defense is filed later they have a defense.
Well, it wasn''t necessarily that the accommodation was offered and rejected. It was the person saying, you know I want you to hire my mother as the interpreter so bring my financial resources.
Oh, no! No!
Yes and saying that that is my preference, I don''t want you to go elsewhere. We feel kind of stuck because it is the person''s preference (Laughter) which we want to honor, but like I also said we question both the quality and more importantly the objectivity of the family member in that role.
Then, if that is your concern, then, the, you know part of, part is, well, you know, I really I want X and I havent really quite heard that it is oh my sister or my mother, usually it is I want this particular interpreter and the law says basically your obligation as an entity is to provide a qualified interpreter and to the extent that quite frankly you think the person that, mom or sister or whoever is not qualified, then you could say so. And it is not that her sign skills, she could be certified, but and it is the definition of qualified interpreter says that the individual must be able to interpret impartially and in a close familial relationship that can be next to impossible.
Right. Okay.
In certain circumstances I would argue, if you wanted to or had to, that it is in your judgment the person is not qualified, if that is honestly what you believe. Quite frankly if you don''t care and you think they are great interpreters and think they can be impartial, then, you know, do it. I just think people, you know, also think that if I bring my own interpreter, you know, and it happens to be my mother, then doctor will pay for it.
Uh-huh.
No, no. No. That is not going to happen.
Okay, great, thank you very much.
Thanks for your questions. Operator, our next question, please.
Thank you. Next question, your line is open.
Good afternoon. We have seven people sitting in on the call and one of the ladies here is going to ask a question through her ASL interpreter.
Go ahead. (Pause.)
Hi, I have three different issues. First, I have an experience where I went to the doctor and I asked for an interpreter and I asked the doctor to, for an interpreter and the doctor told me or actually fired me and told me I had to find a different doctor. Does the doctor have a right to tell me that I need to find another doctor? The other question I have is: I went to Lexington Memorial Hospitals emergency room, several times, and I asked for an interpreter, and they brought in an interpreter who finger spelled and then the next time they brought in an interpreter who worked at the hospital and their response, and when I said I want a qualified interpreter, their response was that the hospital or that the office was closed, the interpreter''s office was closed. So I was frustrated with that. The other issue, I went to a lawyer''s office and asked for an interpreter and they said that I was to pay for the interpreter. So I have had a lot of frustration. I don''t have money, you know, to pay for another lawyer so I am with this lawyer and I am bringing in volunteers to interpret for me so I am being stuck in these ugly situations just because people won''t provide interpreters.
Okay, thank you for your questions and your experience mirrors the experience that we hear from people all over the country. And for the others on the call here who are not familiar with this kind of complaint, this is typical. And constant. And persistent. Particularly lawyers, lawyers and doctors, you know, God love ''em but they often times have the reputation of being the worst offenders when it comes to providing interpreters. And so with respect to the doctors dismissing you as a patient, because you requested accommodations and the doctor refused to provide them, I would say that you have the basis to file a complaint. I don''t think that that is permissible under the ADA and you can file a complaint for free with the U.S. Department of Justice, simply writing them a letter and telling them what happened. No guarantee the Department of Justice is going to review your complaint but we have to tell the Department of Justice what is going on. And we have to do it all the time. Because if we don''t tell them, they don''t know that there is a problem out here and they won''t pick a case to actually pursue. And decide to investigate, you know, yours or some other complaint against doctors'' offices. With respect to the hospital emergency room, you know in these cases where there is a likelihood that you might go back and have to visit this hospital again, I would highly recommend that you and/or a collection of members of your community request to open a dialogue with the hospital to resolve these issues for the future and continue that dialogue and have regular meetings with your hospital, between the hospital and the Deaf community that serves, you know, that is served by that hospital, to make sure that these issues are resolved, on going. No question in my mind, again you have had seems like you have the basis for these instances to file a complaint again with the Department of Justice just like with the doctor but you can do that but I also recommend that the community, members of the community, establish relationships, ongoing relationships with entities like hospitals, police departments, and others in the community to make sure that these things don''t happen in the future. Lawyers, if you are currently being represented by a lawyer and you are bringing in volunteers, you have a couple of choices, as with the doctor and the hospital, like the lawyer, if you ever encounter somebody that says something that you don''t think is right, and you would like them to get a second opinion, you are always welcome to provide them with my name and my contact information and ask them to call me. And I will basically advocate on your behalf. I can''t guarantee that I am going to be able to convince them to do anything different any more than you can convince them but I am welcome to add my voice to yours. And same thing with the lawyer. You know, you are welcome to provide him or her with my name and number and I would be happy to talk to him. But if you are in an ongoing case here, I don''t want to step in, or step between you and your lawyer, so you could decide to wait until this particular matter is completed and at that time file a complaint.
Alright, thank you for your questions. Rosaline we have a question submitted electronically somewhat alone the lines dealing with doctors'' offices and wanting to know if a doctors'' office could charge a patient that is Deaf for the cost of an interpreter if the patient fails to show or canceled their appointment.
That is an excellent question and certainly not the first time I have heard it. There is nothing in the Department of Justice guidance that I have ever read that addresses that question, and generally speaking the guidance says the entity cannot charge the or surcharge directly or indirectly the individual with the disability for the cost of accommodations and on that basis alone, my answer to that is no. However, if the doctor has a cancellation policy for all patients and some doctors offices do, so if you don''t cancel your appointment within 24 hours or whatever it is, the doctor will charge you a cancellation fee for the appointment, you know, $25 for not showing up, and that policy is neutral on its face, it applies to all patients with or without disabilities, and that policy would be permitted but it is not for the purpose of recouping funds for the cost of the interpreter.
Good. Operator, next question, please.
Sure. Next question. Your line is open.
Could you please help me understand what the responsibility is of a Deaf person to cancel an interpreter or captioning request and what recourse does a public entity have when the absences occur without cancellation on a repeated basis.
That is a tough one. Okay, I am going to ask you to put your phone on mute because we are getting feedback.
I think we are alright now, go ahead.
Okay, that is a really tough question. If a person cancels once without notification and the entity ends up paying for services that were not used, that is hard. If it happens repeatedly, there is, other than talking to the individual who is Deaf or hard of hearing and explaining to them not only is there a cost issue for the entity, the other important consideration has got to be the limited resources in the community for the interpreter and other services. These are invaluable, valuable, limited resources and it is just not right that these resources should be reserved and then not used, especially when there is such great need in the community for these services in other locations. So, but in terms of dismissing them as a patient or dismissing them as a student or whatever the relationship is. It is not permitted. You can''t do it. It is, I think that people just need to be, you know, it is just really sad when it happens, it is sad all the way around but I don''t think there is any legal recourse that the entity has.
Thanks for your questions. Along those lines, Rosaline, from time to time we have taken phone calls here from community colleges where they have had a student that is Deaf that for one reason or another, they don''t, you know like students without disabilities don''t regularly attend a particular class and in those answers can the disability services office require that the student come in and meet with them and discuss the situation of, you know, either notifying them when they know they won''t be showing up for the class?
I quite frankly it has been my experience generally in community colleges and other educational institutions where an interpreter is routinely provided for classes, you know, on a scheduled basis, that the individual who is Deaf has contact information for the interpreter directly so that if the person knows I am running late for class or I am, I woke up sick this morning, or whatever, that as soon as they have that information and they know they are not going to be attending or late, that they not only notify disability support services but they also notify the interpreter directly. You know, it has been my experience generally that people who are Deaf, they understand this costs money and it is a limited resource and I think hopefully the rarer of the instance where you have anybody who is actually abusing the privilege. And, but, yeah, disability support services might be the appropriate office to have this discussion with the individual who is a repeat offender in terms of canceling on short notice but there is, you know, there is again to the best of my knowledge no other recourse except for neutral policies on their face like, for example, a lot of classes, they have an attendance requirement. You miss unexcused three classes and you get a failing grade, kind of thing, and this is the policy that is applied to everybody that also would apply to the individuals who are Deaf, too.
Okay, very good. Operator, another question, please.
I am not showing any further questions. I can give instructions again if you like.
Sure, why dont you go ahead why dont you do that.
Not a problem. Ladies and gentlemen, if you wish to ask a question, please press star and then 1 on your touchtone telephone.
Alright, I have another question here that was submitted beforehand. And this comes from an individual who indicates that a woman that is Deaf and pregnant and wanted to participate in a Lamaze class offered by a hospital and whatever department of the hospital that provides the Lamaze classes told the woman that they weren''t going to provide an interpreter because the Lamaze classes weren''t required, they weren''t required by the doctor. And this individual wants to know what their rights are, what their recourse would be.
It doesn''t matter if the doctor orders a Lamaze class or not! (laughter) The hospital is offering it, guess what? Or whoever is offering it. It is an educational service and interpreters may be required. And so this individual, you know, I am happy to have her contact our office or your office and give us the opportunity to provide educational materials to the hospital in question.
Right. Okay. Operator, do we have another question?
No, sir. I am showing no further questions. We do have a question.
Go ahead to that.
Couple more. One moment. Next question. Your line is open.
Yes, thank you, I am one of the Deafness resource specialist out in San Antonio. I am here, I am sorry. Okay. My question is: I have a consumer that is wanting to take citizenship classes, the problem is a lot of these organizations are offering these classes, everybody is telling her that it is on a volunteer basis. So she needs an interpreter, though. What advice would you give her?
Hmm, that is a good one. So the classes are being given by volunteers?
Yes.
And where are the classes being held?
They are small family, like little family community centers but the classes are so small that sometimes they don''t even make, the teachers are on a volunteer basis, she herself is you know she speaks primarily Spanish, but they will offer the Spanish translation and things along that line but then to throw on top of that an interpreter, I mean, we are pretty much just going down the list and I am trying to find the biggest agency that I can find but at this point so far we have simply been encountering it is all on a volunteer basis, it is a volunteer basis.
And the volunteer or not volunteer basis doesn''t sway me one way or the other. What would sway me are facts related to the financial resources of the entity itself that is sponsoring, hosting, conducting these classes. And it may be that this particular entity is really, really small and has no funds, they can barely pay for the rental of the community center. I don''t know, I am making things up. Where that is the case, however, I would hope that you could, and where you really believe that it would be in fact impossible financially for that entity to provide interpreters, I would consider making an appeal to the interpreter community and look for an interpreter who could provide them on a pro bono or reduced rate basis for good acts like that.
Okay. Thank you.
Thanks for your question.
It is a little bit different, it is sort of like, we get that question a lot with entities like Alcoholics Anonymous or, you know, Boy Scouts or, you know like, oh, these are small community, there is really no entity or organization, but with Alcoholics Anonymous and with Boy Scouts and others, you know, I would be looking at the national headquarters and I would be appealing to the national headquarters in terms of financial support in the community for interpreters or other things to make their programs and services accessible to everybody. Just because these are the kinds of things that often times, you know, the individual community really can''t support them and they have to look to the quote unquote Parent corporation" for support, and that is what I would do.
Good. Very good. Operator, do we have one more question we can get in before the bottom of the hour?
Of course. Next question. Your line is open.
Go ahead with your question. Do you have your phone on mute?
Hello?
There you go.
I am calling for a small-town city clerk in Kansas and I am interested in, she has a case where they have a person who is hard of hearing and has requested an interpreter. And they have a very small budget and they do continually have an interpreter there to type out their meeting processes for the audience member to read as the council members hold their meeting and that person, the interpreter, does not allow the city to have that typed document as a record of the meeting. Is there any kind of recourse that the city has for that?
Okay, I am, the terminology, I am getting confused a little bit. An interpreter is usually somebody who communicates between like American Sign Language and English so it is sign language, and somebody who types something out and makes a record of something is often times called a captioner.
Okay. Well, I guess maybe in that case then this person would be a captioner. They refer to them as an interpreter. And they request, they don''t request sign language, they request whatever the council members are speaking is typed out for them to read on their laptop screen.
Okay yeah that is realtime text, realtime captioning, also called computer assisted real time communication, or computer assisted, Communication Access Realtime Transcription, Translation. Anyway, CART. CART is oftentimes the professional abbreviation. So, so you are you have requested it and they provide that service at the meeting and then you are requesting a copy of the transcript?
Well, because they are already typing that document out in Word and the person is reading it on the screen, it would be just that simple for them to save that file and either e-mail or allow it to be printed out.
Yes.
And they refuse.
Who refuses?
The person that is doing that typing, the city hires the contract person to do that.
Right, so the city can, I have never heard of a person refusing to provide a transcript. Sometimes they charge a little bit more money for it.
Okay.
And it would be an unofficial transcript, you might ask whether that is a problem because it is usually not perfect, the transcription.
Sure.
And some people would charge more to go back and fix it before perusing it as an official transcript.
Okay.
But I.
Yeah, it sounds like a contract issue between the clerk''s office and who they are hiring to do the captioning. They just need to stipulate that, you know, they want a copy of the text and if they get charged for it, they get charged for it but.
Okay, all right. Thank you.
Thank you very much for your question. Rosaline, thank you very much for your time this afternoon. We appreciate it greatly. We appreciate your expertise and sharing that with us today. Anyone that was unable to ask a question, remember Rosalines contact information is available through the audio conference website as well as you have an opportunity to contact your regional ADA Center by calling 800-949-4232. The audio archive and text transcript of today''s session will be posted to the audio conference website in 10 to 14 business days. The audio conference website is www.ada-audio.org. I hope that you will be able to join us on September the 15th for our next audio conference session. We will be, where that session is entitled "Best Practices in Accommodating Students with Autism Spectrum Disorders." That will be taking place on September the 15th. To get additional information about that or we will be kicking off in October the 2009-2010 ADA Audio Conference Series so to get information about the Audio Conference Series visit the website or you can dial toll-free 1-877-232-1990. That is 1-877-ADA-1990. Thanks again to Rosaline for her presentation today and thanks to all of you for participating, hope that you all have a wonderful rest of your Tuesday. Thank you and take care.
Thank you Peter.
Ladies and gentlemen, this concludes today''s conference and I will now disconnect everyone. Have a great day.