9/9/2016. Steven E. Gordon Assistant United States Attorney Civil Rights Enforcement Coordinator USAO Eastern District of Virginia 1

Transcription

1 Steven E. Gordon Assistant United States Attorney Civil Rights Enforcement Coordinator USAO Eastern District of Virginia 1 1

2 Disclaimer Opinions Expressed Herein or Otherwise are those of the Speaker and do not Necessarily Reflect the Views of the United States Department of Justice. 2 2

3 Overview 1. Background on the ADA. 2. Entities covered by Title II and Title III of the ADA. 3. Requirements common to Title II and Title III entities. 4. Unique requirements for Title II entities. 5. Discussion related to specific types of entities that are required to furnish auxiliary aids and services. 6. Ignorance is not a valid defense. 3 3

4 Most Important ADA Resource: ADA.gov 4 4

5 Excellent Technical Assistance Publication on ADA.gov: Effective Communication 5 5

6 Congressional Findings Supporting Passage of ADA When the ADA was passed in 1990, Congress found, among other things: [D]iscrimination against individuals with disabilities persists in such critical areas as... education... health services... and access to public services. 42 U.S.C

7 Federal Government Statistics The Census Bureau reports that approximately 56.7 million people living in the US had some kind of disability in The National Institute on Deafness and Other Communication Disorders (NIDCD) reports that one in eight people in the United States (13 percent, or 30 million) aged 12 or older has hearing loss in both ears, based on standard hearing examinations. NIDCD reports that approximately 7.5 million people in the United States have trouble using their voices. According to the Census Bureau, approximately 7.3 million individuals in the United States report significant vision loss. 7 7

8 Definition of Disability A physical or mental impairment that substantially limits one or more major life activities (e.g., hearing, speaking, and seeing). A record of such an impairment. Being regarded as having such an impairment. 42 U.S.C ; 28 C.F.R (see the new regulatory definition of disability adopted after ADA Amendments Act of 2008). 8 8

9 What Is Covered By ADA? The ADA prohibits discrimination and ensures equal opportunities for persons with disabilities in: Employment (Title I) State and local government services (Title II) Public accommodations (Title III) 9 9

10 Title II Covers Public Entities All state and local governmental entities are covered by Title II, including the following entities operated by state and local governments: 1) Educational institutions. 2) Courts. 3) County Board and City Council meetings. 4) Law enforcement agencies. 5) State and local social service agencies. 6) Health care providers operated by state and local governments. 7) Jails and correctional facilities. 8) Websites affiliated with state and local agencies

11 Title III Covers Public Accommodations Title III covers a wide range of entities, such as: (1) Privately operated healthcare providers (e.g., hospitals and skilled nursing facilities). (2) Offices of an accountant or lawyer. (3) Private educational institutions. (4) Theaters. (5) Social service centers, including day care centers and adoption agencies. (6) Museums. 42 U.S.C (7); 28 C.F.R

12 Websites Operated by Public Accommodations Places of public accommodation must ensure that they don t discriminate in their goods, services, accommodations, etc., including via their website. NAD v. Netflix (DOJ Statement of Interest) 12 12

13 Effective Communication Regulations The effective communication requirements can be found in the following regulations: Title II: 28 C.F.R (definitions) & (Communications). Title III: 28 C.F.R (definitions) & (Auxiliary aids and services)

14 General Effective Communication Requirements Covered entities are required to communicate effectively with people who have communication disabilities (i.e., vision, hearing or speech). The goal is to ensure that individuals with disabilities receive equally effective communication to those who do not have a disability. Covered entities are required to furnish auxiliary aids and services in order to ensure effective communication with individuals who have communication disabilities

15 General Effective Communication Requirements The key to communicating effectively is to consider the nature, length, complexity, and context of the communication and the person s normal method(s) of communication. Covered entities may not charge the individual with a disability any surcharge for furnishing auxiliary aids and services. The rules apply to communicating with the person who is receiving the covered entity s goods or services as well as with the person s parent, spouse, or companion in appropriate circumstances

16 The ADA Regulations Broadly Define Companion. [C]ompanion means a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a [covered entity], who, along with such individual, is an appropriate person with whom the [covered entity] should communicate. 28 C.F.R (c)(1)(ii); see also 28 C.F.R (a)(2) (similar definition under Title II)

17 Consultation Requirement An individualized assessment is important. One size does not fit all. To determine the type of auxiliary aid or service that will ensure effective communication, the covered entity should consult with the individual with a disability to determine their method of communication. Further, covered entities should consider the nature, duration and complexity of the communication. 28 C.F.R (c)(2)(ii); see also 28 C.F.R (a)(2)

18 Factors to Consider To Determine the Type of Auxiliary Aid for Effective Communication (1) What is the method of communication used by the individual? (e.g., ASL, signed English, oral interpreter) (2) How lengthy is the communication? (3) How complex is the communication? (4) What is the nature of the communication? 18 18

19 Communication Request Form in DOJ ADA Settlements Are A Useful Tool To Obtain Individualized Information 19 19

20 Communication Request Form in ADA Settlements Are A Useful Form To Obtain Individualized Information 20 20

21 The Auxiliary Aid Must Work For the Individual There are many types of auxiliary aids and services for individuals who are deaf or hard of hearing, including: Real-time captioning (a.k.a., CART); CapTel Phones; Cued-speech interpreters; Assistive listening systems and devices; Telephone relay service; Hearing-aid compatible telephones; Videophones; and Sign language interpreters (ASL, signed English, etc.); 28 C.F.R ; 28 C.F.R (b)

22 The Auxiliary Aid Must Work For the Individual There are many types of auxiliary aids and services for individuals who have speech disabilities, including: A qualified speech-to-speech transliterator (a person trained to recognize unclear speech and repeat it clearly), especially if the person will be speaking at length, such as giving testimony in court. A communication board. Allowing more time for communication

23 The Auxiliary Aid Must Work For the Individual There are many types of auxiliary aids and services for individuals who have vision loss, including: Qualified reader; Information in large print, Braille, or electronically for use with a computer screen-reading program; and An audio recording of printed information

24 Hearing Loss Later in Life Sign language interpreters are effective only for people who use sign language. Other methods of communication, such as the use of a transcriber may be necessary for those who lose hearing later in life and do not use sign language

25 Communication Access Realtime Translation (CART) 25 25

26 CART Computer Assisted Real-Time Transcription ( CART ) Many people who are deaf or hard of hearing are not trained in either sign language or speech reading. CART is a service in which an operator types what is said into a computer that displays the typed words on a screen. DOJ ADA Business Brief: Communicating with People who are Deaf or Hard of Hearing in Hospital Settings 26 26

27 Many Kinds of Assistive Listening Devices PockeTalker Hearing aid compatible telephones TTY New technology, including Captel phones 27 27

28 PockeTalker (Used for hard of hearing patients who do not wear hearing aids or do not want to bring their hearing aids to the hospital, or hearing aid wearers with t-coils in their hearing aids if they use a neckloop.) 28 28

29 Captioning & Telecommunications Information provided by video should be captioned Televisions for patients in hospitals TDD, if telephone is offered to others 29 29

30 Hearing aid compatible telephones and amplified telephones 30 30

31 Captel Phone 31 31

32 Sign Language Is An Auxiliary Service A doctor uses sign language interpreter to communicate with a patient who is deaf

33 Qualified Interpreter If an interpreter is required, a covered entity must furnish a qualified interpreter. 28 C.F.R &

34 Requirements for a Qualified Interpreter Able to interpret: 1. Effectively interprets both receptively (i.e., understanding what the person with the disability is saying) and expressively (i.e., having the skill needed to convey information back to that person) using the sign language of the individual needing the interpreter (e.g., ASL, Signed English, etc.) 2. Accurately 3. Impartially 4. Understanding the necessary specialized vocabulary that is used for the particular setting (e.g., not all interpreters are qualified for medical settings). 28 C.F.R (definition of qualified interpreter ); see also Technical Assistance Manual, III

35 In Addition, In Order to be Effective Accessible formats Timely manner -- delays mean that service is not equal. Protect privacy and independence 28 CFR (c)(1)(ii) 35 35

36 Problems With Using Staff Who Signs Pretty Well Can a public accommodation use a staff member who signs pretty well as an interpreter for meetings with individuals who use sign language to communicate? Signing and interpreting are not the same thing. Being able to sign does not mean that a person can process spoken communication into the proper signs, nor does it mean that he or she possesses the proper skills to observe someone signing and change their signed or fingerspelled communication into spoken words. The interpreter must be able to interpret both receptively and expressively. Americans with Disability Act, Technical Assistance Manual, II & III

37 Is Certification Necessary? If a sign language interpreter is required for effective communication, must only a certified interpreter be provided? No. The key question in determining whether effective communication will result is whether the interpreter is qualified, not whether he or she has been actually certified by an official licensing body. A qualified interpreter is one who is able to interpret effectively, accurately and impartially, both receptively and expressively, using necessary specialized vocabulary. An individual does not have to be certified in order to meet this standard. A certified interpreter may not meet this standard in all situations, e.g., where the interpreter is not familiar with the specialized vocabulary involved in the communication at issue. Americans with Disability Act, Technical Assistance Manual, III (emphasis added)

38 VDDHH s Discussion of Qualified Interpreter Perhaps the biggest misconception concerning interpreting for people who are deaf or hard of hearing is the generallyheld assumption that a beginning course in sign language or fingerspelling is a sufficient qualification to work as an interpreter. A person who knows conversational sign language does not necessarily possess the expertise required to perform well in the role of an interpreter. Professional interpreting requires intense training and experience before proficient levels of skill are attained. VDDHH, Directory of Qualified Interpreters for the Deaf and Hard of Hearing, at 3 (emphasis in original). 38

39 Enlisting Companions Generally, covered entities may not rely upon companions to interpret or facilitate communication. 28 C.F.R (c)(2) & (c)(3)

40 ADA Prohibition On Relying Upon Adult Companions To Facilitate Communication A covered entity shall not rely on an adult accompanying an individual with a disability to interpreter or facilitate communication except In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is not interpreter available; or Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. 28 C.F.R (c)(2) & (c)(3)

41 ADA Prohibition On Relying Upon Child Companions To Facilitate Communication A [covered entity] shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available. 28 C.F.R (c)(3) & (c)(4)

42 Video Remote Interpreting ( VRI ) VRI is a fee-based service that uses video conferencing technology to access an off-site interpreter to provide real-time interpreting. VRI is not effective in all circumstances. For example, if someone is in extreme pain and cannot focus on a screen. In order for VRI to be effective communication, users must be trained to quickly and efficiently set up and operate the VRI

43 Performance Standards for VRI If VRI is chosen, specific performance standards must be met: Real-time, full motion video and audio over a dedicated high speed, wide-bandwidth video connection or wireless connection. No lags, choppy, blurry, or grainy images, or irregular pauses in communication. A sharply delineated image that is large enough to display the both interpreter s and the individual using sign language face, arms, hands, and fingers. 28 C.F.R (d); (f)

44 Specific Requirements For Title II Entities Substantive Requirements. Procedural Requirements. Structural Requirements

45 Animating Principle of Title II Of The ADA No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C ; see also 28 C.F.R (a); (b)(1). 45

46 The Consultation Requirement When an auxiliary aid or service is required, the public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice and must give primary consideration to the choice expressed by the individual. It is important to consult with the individual to determine the most appropriate auxiliary aid or service, because the individual with a disability is most familiar with his or her disability and is in the best position to determine what type of aid or service will be effective. Americans with Disability Act, Technical Assistance Manual, II (emphasis added). 46

47 Consultation Requirement Ongoing A public entity has a continuing obligation to assess the auxiliary aids and services it is providing, and should consult with the individuals with disabilities on a continuing basis to assess what measures are required to ensure effective communication. Section-by-Section discussion of 2010 ADA Regulations (emphasis added). 47

48 Primary Consideration The ADA regulations state that: [i]n determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the request of individuals with disabilities. 28 C.F.R (b)(2) (emphasis added)

49 Head of the Agency Makes Decision in Writing Regarding Fundamental Alteration or Undue Burden The head of a public entity or his or her designee is responsible for making the determination that would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial or administrative burden... after considering all resources available. 28 C.F.R This decision must be accompanied by a written statement of the reason for reaching that conclusion. Id

50 ADA Coordinator The ADA regulations provides that: A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part [of the ADA Regulations]. The public entity shall make available to all interested individuals the name, office address, and telephone number of the employee or employees designated pursuant to this paragraph. 28 C.F.R

51 ADA Coordinator The section-by-section Analysis of the ADA Regulations explain the rationale for the designation of an ADA Coordinator: The requirement for designation of a particular employee and dissemination of information about how to locate that employee helps to ensure that individuals dealing with large agencies are able to easily find a responsible person who is familiar with the requirements of the Act [ADA] and this part [of the ADA regulations] and can communicate those requirements to other individuals in the agency who may be unaware of their responsibilities. 51

52 Effective Communication in Specific Settings 52 52

53 Barrier-Free Health Care Initiative Through the Barrier-Free Health Care Initiative, U.S. Attorneys Offices and DOJ s Civil Rights Division are targeting their enforcement efforts on access to medical services and facilities to ensure effective communication for people who are deaf or have hearing loss

54 DOJ Publication Provides Very Helpful Guidance For Healthcare Settings 54 54

55 Healthcare Settings: ADA Business Brief: Communicating with People Who Are Deaf or Hard of Hearing in Hospital Settings Situations where an interpreter may be required for effective communication: Discussing a patient s symptoms and medical condition, medications, and medical history Explaining and describing medical conditions, tests, treatment options, medications, surgery and other procedures Providing a diagnosis, prognosis, and recommendation for treatment Obtaining informed consent for treatment Communicating with a patient during treatment, testing procedures, and during physician s rounds 55 55

56 ADA Business Brief: Communicating with People Who Are Deaf or Hard of Hearing in Hospital Settings Situations where an interpreter may be required for effective communication (continued): Providing instructions for medications, post-treatment activities, and follow-up treatments Providing mental health services, including group or individual therapy, or counseling for patients and family members Providing information about blood or organ donations Explaining living wills and powers of attorney Discussing complex billing or insurance matters Making education presentations, such as birthing and new parent classes, nutrition and weight management counseling, and CPR and first aid training 56 56

57 Healthcare setting cases Fairfax Nursing Center Failure to provide a qualified ASL interpreter to the daughter and granddaughter of a resident at FNC during a six week physical rehabilitation stay. Equitable relief, $80,000 in compensatory damages, $12,500 to train other skilled nursing facilities in Virginia on the ADA effective communication requirements, and $5,000 to effectuate the public interest. Commonwealth Health & Rehab Center Failure to provide ASL Interpreter to rehab patient, who is deaf. and his Mother and Sister, who are also deaf, during 27-day physical rehabilitation stay at the facility. Equitable relief, $160,000 in compensatory damages & $2,500 civil penalty 57 57

58 Educational Entities Very helpful publication issued jointly by the United States Department of Justice and United State Department of Education: Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools

59 Educational Entities Under Title II, what must public school districts do to provide effective communication to students with hearing, vision, or speech disabilities? Answer. Title II and its implementing regulations require public school districts to ensure that communication with students with hearing, vision, or speech disabilities is as effective as communication with students without disabilities. To do this, public schools must provide appropriate auxiliary aids and services where necessary to provide effective communication; that is, schools must provide appropriate auxiliary aids and services so that students with disabilities have an equal opportunity to participate in, and enjoy the benefits of, the services, programs, and activities of the public school district

60 Educational Entities Under what circumstances is a public school required to provide auxiliary aids and services to persons with a hearing, vision, or speech disability who are not students, such as parents, other relatives, and members of the public, who seek to participate in or benefit from a district's services, programs, or activities? Answer. Title II s effective communication obligations are not limited just to students - schools are obligated to provide effective communication to all individuals who seek to participate in or benefit from a school district s services, programs, or activities such as student registration, parent-teacher conferences, meetings, ceremonies, performances, open houses, and field trips. All of the same Title II requirements and considerations discussed in the context of students with hearing, vision, or speech disabilities apply to other individuals with disabilities who are covered by this requirement

61 Cases Involving On-line Access To Educational Programs Settlement Agreement with edx, Inc. 4/2/2015 Provider of massive open online courses (MOOCs) agreed to make its website, platform, and mobile applications accessible to individuals with disabilities. Settlement Agreement with Louisiana Tech University 7/22/2013 Addressed use of an Internet-based learning product for university course work (homework, testing) that was inaccessible to a student who is blind

62 State and Local Courts Access to state and local courts and the ability of individuals with hearing disabilities to participate in such proceedings were a special concern that Congress considered when it enacted the ADA. See, e.g., Tennessee v. Lane, 541 U.S. 509, 527 (2004) (explaining that Congress learned that many individuals, in many States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities, and citing legislative testimony concerning the failure of state and local governments to provide interpretive services for the hearing impaired )

63 State and Local Courts Because of the importance of effective communication in State and local court proceedings, special attention must be given to the communications needs of individuals with disabilities involved in such proceedings. Qualified interpreters will usually be necessary to ensure effective communication with parties, jurors, and witnesses who have hearing impairments and use sign language. For individuals with hearing impairments who do not use sign language, other types of auxiliary aids or services, such as assistive listening devices or computer-assisted transcription services, which allow virtually instantaneous transcripts of courtroom argument and testimony to appear on displays, may be required. Title II Technical Assistance Manual, II

64 State and Local Courts In Prakel v. Indiana, 100 F.Supp.3d 661 (S.D. Ind. 2015), the court held that because there is a clear history of the public s right to attend criminal proceedings, being a spectator of a court proceeding is included within Title II s protections. Settlement Agreement with Orange County Clerk of Courts (DOJ case) Inaccessibility of filed court documents for blind attorney. Court agrees to ensure documents in accessible format upon request

65 Meetings of State and Local Governmental Bodies A deaf individual does not receive an equal opportunity to benefit from attending a city council meeting if he or she does not have access to what is said. Title II Technical Assistance Manual, II

66 Law Enforcement Activities A DOJ Technical Assistance Publication Commonly Asked Questions About The Americans With Disabilities Act And Law Enforcement explains that: [t]he ADA affects virtually everything that [police] officers and [sheriff s] deputies do, for example... arresting, booking, and holding suspects. 66

67 Law Enforcement Activities Under the Americans with Disabilities Act (ADA), people who are deaf or hard of hearing are entitled to the same services law enforcement provides to anyone else... Law enforcement agencies must make efforts to ensure that their personnel communicate effectively with people whose disability affects hearing. When you are interviewing a witness or a suspect or engaging in any complex conversation with a person whose primary language is sign language, a qualified interpreter is usually needed to ensure effective communication. DOJ Publication: Communicating with People Who Are Deaf or Hard of Hearing; ADA Guide for Law Enforcement Officers 67 67

68 Law Enforcement Activities A municipal police department encounters many situations where effective communication with members of the public who are deaf or hard of hearing is critical. Such situations include interviewing suspects prior to arrest (when an officer is attempting to establish probable cause); interrogating arrestees, and interviewing victims or critical witnesses. In these situations, appropriate qualified interpreters must be provided when necessary to ensure effective communication. U.S. Dep t of Justice, Americans with Disabilities Act: Title II Technical Assistance Manual 1994 Supplement II (B), illus. 3 (Nov & Supp. 1994) 68 68

69 Law Enforcement Activities DOJ recently filed an amicus brief in City and County of San Francisco v. Sheehans, No (United States Supreme Court), in which the Solicitor General ( SG ) expressed the view of the United States Government with regard to the ADA s coverage to local law enforcement activities as follows: [t]he statutory text [of the ADA] further demonstrates that law enforcement entities are subject to Title II s antidiscrimination mandate with respect to all of their operations, including arrests. Id. at 19 (emphasis added). The SG went on to explain: [b]ecause law enforcement entities are subject to Title II, they must make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability. Id. at 22 (citing 28 C.F.R (b)(7); Title II Technical Assistance II , at 14)

70 State And Local Detention Facilities The ADA s Title II implementing regulations expressly cover jails, detention and correctional facilities run by state and local governments. 28 C.F.R The Supreme Court expressly held (in a unanimous decision) that the ADA s requirements apply to state and local detention centers. Pennsylvania Dep t of Corrections v. Yeskey, 524 U.S. 206 (1998); See also Title II Regulations, 2010 Guidance and Section-by-Section Analysis. 70

71 Individuals with Communication Disabilities Are Entitled to Equal Access To Communication State and local detention facilities are required to take appropriate steps to ensure that communications with inmates with disabilities are as effective as communications with others, including furnishing appropriate auxiliary aids and services. 28 C.F.R (b)(1)(ii) & (b)(1). One example: the Section-by-Section Analysis of the ADA regulations explain: that correctional facilities and jails must ensure that inmates who are deaf or hard of hearing actually receive the same information provided to other inmates. 71

72 Effective Communication in Correctional Facilities In Pierce v. District of Columbia, 128 F.Supp.3d 250 (D.D.C. 2015), an individual who is deaf was incarcerated for 51 days. The prison staff never assessed Plaintiff s communication needs, and instead assumed lipreading and written notes were sufficient. Plaintiff asserts he asked for an interpreter for medical intake, health services and various classes. The court granted summary judgment for Plaintiff on effective communication and intentional discrimination and denied prison s motion for summary judgment. The Court also held that the jail violated the ADA as a matter of law by failing to evaluate Plaintiff s need for accommodation when taken into custody

73 Pursuant to the ADA, Prisons Have An Affirmative Duty To Assess Inmates With A Disability [B]ased on its reading of federal law, this Court holds that prison officials have an affirmative duty to assess the potential accommodation needs of inmates with known disabilities who are taken into custody and to provide the accommodations that are necessary for those inmates to access the prison s programs and services, without regard to whether or not the disabled individual has made a specific request for accommodation and without relying solely on the assumptions of prison officials regarding that individual s needs. Pierce v. District of Columbia, Pierce v. District of Columbia, 128 F.Supp.3d 250, 272 (D.D.C. 2015) 73

74 Common Issues That Have Arisen in Failure To Provide Effective Communication Cases Failure to obtain interpreter for late night emergency admissions to hospital; Relying upon family members, friends and/or unqualified staff members to facilitate communication; Failing to recognize that a companion with disabilities is entitled to effective communication; VRI issues: (1) staff does not know to set up VRI and/or (2) the VRI system is not working properly; Inappropriate reliance on hand-written notes for individuals whose primary means of communication is ASL; 74 74

75 Common Issues That Have Arisen in Failure To Provide Effective Communication Cases Erroneously assuming that an individual who is deaf or hard of hearing can read lips and does not need an auxiliary aid or service; Refusal to provide auxiliary aids and services due to cost; Failure to train staff on the ADA s requirements and the services available to individuals who are deaf or hard of hearing; and Failure to ensure website accessibility to individuals with disabilities

76 The ADA Requires Hospitals To Ensure That Interpreters are Available For After-Hours Emergencies Hospitals are required to ensure that qualified interpreters are readily available for after-hours emergencies. A Department of Justice publication, entitled, ADA Business Brief: Communicating with People Who Are Deaf or Hard of Hearing in Hospital Settings, explains that: Hospitals should have arrangements in place to ensure that qualified interpreters are readily available on a scheduled basis and on an unscheduled basis with minimal delay, including oncall arrangements for after-hours emergencies. Larger facilities may choose to have interpreters on staff. (Emphasis added)

77 Legal Principles Addressing Common Issues Covered entities are required to furnish auxiliary aids and services including interpreters and may not require the person with a disability to bring their own. 28 C.F.R (b)(1) & (c)(1) & (c)(2). Covered entities may not enlist companions to interpret. 28 C.F.R (c)(1) & (c)(3). ADA regulations define qualified interpreter to be someone who can interpret effectively, accurately, impartially and understands the necessary specialized vocabulary. 28 C.F.R ; A patient s companion, who is deaf or hard of hearing, is also entitled to effective communication. 28 C.F.R (a)(1) & (c)(1). In order for VRI to be effective communication, users must be trained to quickly and efficiently set up and operate the VRI. 28 C.F.R (d)(4) & (f)(4)

78 Individuals Who Are Deaf Often Lack Good English Reading and Writing Skills The ADA Technical Assistance Publication entitled Communicating with People Who Are Deaf or Hard of Hearing: ADA Guide for Law Enforcement Officers explains that: [w]hen communicating by writing notes, keep in mind that some individuals who use sign language may lack good English reading and writing skills. (Emphasis added). 78

79 Public Accommodation Must Absorb Costs Associated With ADA Compliance Although compliance [with the ADA] may result in some additional cost, a public accommodation may not place a surcharge only on particular individuals with disabilities or groups of individuals with disabilities to cover these expenses. ILLUSTRATION 2: In order to ensure effective communication with a deaf patient during an office visit, a doctor arranges for the services of a sign language interpreter. The cost of the interpreter s services must be absorbed by the doctor. Technical Assistance Manual, III (Emphasis added)

80 Lip Reading Has Many Limitations -- Can have high error rate -- Facial hair or accents obscure -- Don t assume that just because someone can lip read a few words, they understand everything

81 Ignorance of the ADA s Legal Requirements Is Not a Valid Defense A covered entity s subjective belief that it is complying with the ADA -- when in fact it is not in compliance -- is not a valid defense. The plain language of the ADA places liability upon a public accommodation for simply failing to comply with the ADA s requirements. Thus, discrimination under the ADA is broadly defined to include: the failure to take such steps as may be necessary to ensure that no individual with a disability is excluded [or], denied services U.S.C (b)(2)(A)(iii)

82 Ignorance of the ADA s Legal Requirements Is Not a Valid Defense As one court recently noted: [t]he ADA seeks to prevent not only intentional discrimination against people with disabilities but also indeed primarily discrimination that results from thoughtlessness and indifference, that is, from benign neglect. Brooklyn Cntr for Independence of the Disabled v. Bloomberg, 980F. Supp.2d 588, 640 (S.D.N.Y. 2013) (quoting, H.R.Rep. No (II), at 29 (1990))

83 Medicare & Medicaid Providers Have An Affirmative Obligation To Inform Themselves and Comply with the ADA and Rehab Act The courts have long-held that those impacted by a legal requirement, particularly those who seek funds from the public fisc, are presumed to have knowledge of the applicable laws, including statutes and regulations. In this regard, the Supreme Court has written that: [p]rotection of the public fisc requires that those who seek public funds act with scrupulous regard for the requirements of law; respondent could expect no less than to be held to the most demanding standards in its quest for public funds. This is consistent with the general rule that those who deal with the Government are expected to know the law... Heckler v. Community Health Serv., 467 U.S. 63 (1984) (emphasis added)

84 ADA Enforcement & Remedies Injunctive Relief (e.g., establishing new policies and procedures, and training). Compensatory Damages (actual damages and pain and suffering). Civil Penalty 42 U.S.C

85 Elements for Successful ADA Compliance Understand the ADA and how it relates to your organization. Designate an ADA Coordinator or Administrator, who has sufficient authority within the organization to ensure compliance. Train staff who have direct contact with the public on the requirements of the ADA and on how to use equipment that supports individuals with disabilities. Develop a process within the organization to handle ADA Accommodation requests that include communication with individuals with disabilities to ascertain their needs

86 Elements for Successful ADA Compliance Easy access to auxiliary aids, including sign language interpreters, for staff. Proper documenting/charting when dealing with ADA issues. Effective grievance procedure for ADA issues. Develop a procedure to assess and monitor ADA compliance

87 Staff Training is Critical A critical and often overlooked component of ensuring success is comprehensive and ongoing staff training. Covered entities may have established good policies, but if front line staff are not aware of them or do not know how to implement them, problems can arise. Covered entities should teach staff about the ADA s requirements for effective communication, HIV and accessible equipment. Many disability organizations can provide ADA trainings

88 Reminder: ADA.gov Is Great Resource 88 88

89 My Contact Information Steven Gordon Civil Rights Enforcement Coordinator Assistant United States Attorney Eastern District of Virginia (703)