Florida’s Not So Happy Anniversary Present To the Americans with Disabilities Act

On the same month as the 27^th anniversary of the Americans with Disabilities Act, a Florida law came into effect that shields businesses from liability in ADA lawsuits. Section 553.5141, Florida Statutes, permits certification of a public accommodation as compliant with Title III of the Americans with Disabilities Act if an expert designs a Remediation Plan that requires all issues to be resolved within ten years. Rather than attempting to encourage compliance with the Americans with Disabilities twenty-seven years after the enactment of the law, the Florida legislature attempts to dilute the law.

This new Florida law demonstrates a fundamental misunderstanding of the Americans with Disabilities Act: It confuses basic concepts of States’ rights in the court system and subjects experts to negligence actions.

In this article, I will discuss this new law, why it will not work as intended, and whether business owners should actually create a comprehensive Remediation Plan and how that should be done.

The Law – 553.5141

According to this new Florida law, an owner of a public accommodation may submit a certification of conformity that indicates that the physical property, services provided, and policies and procedures adhere to Title III of the Americans with Disabilities Act. An expert (I will discuss them later) inspects the public accommodation, then either certifies it as complying with the ADA or designs a remediation plan that must be completed within ten years. According to this state law, Federal courts must take these actions into consideration if the premises are sued for violating the ADA. The goal of this law is to protect business owners from frivolous or “drive- by” lawsuits.

 

The Law’s Fundamental Misunderstanding of the Americans with Disabilities Act.

The Americans with Disabilities Act is a comprehensive mandate to eliminate barriers for 54 million Persons with Disabilities across the United States. Title III of this law includes all public accommodations into this mandate. It covers access into new facilities, old facilities, policies and procedures, auxiliary aids and services, eligibility bars, and discriminatory acts, which are based on timeworn stereotypes. So, this Florida Statute cannot, and does not, cover a fraction of what the law actually protects.

After passage of the law in 1990, it was expected that public accommodations would begin to remove barriers to access. Accordingly, when George Bush signed the ADA into law in 1990, he stated:

The Americans with Disabilities Act (ADA) is a comprehensive law which seeks to remove both architectural and attitudinal barriers that hinder full integration of persons with disabilities in society. After passage of the law in 1990, it was expected that public accommodations would begin to remove barriers to access. Accordingly, when George Bush signed the ADA into law in 1990, he stated:

And now I sign legislation which takes a sledgehammer to another wall, one which has for too many generations separated Americans with disabilities from the freedom they could glimpse, but not grasp. Once again, we rejoice as this barrier falls for claiming together we will not accept, we will not excuse, we will not tolerate discrimination in America.

… I now lift my pen to sign this Americans with Disabilities Act and say: Let the shameful wall of exclusion finally come tumbling down. God bless you all.

Twenty-seven years later, the shameful wall of exclusion still stands. However, only a portion of the ADA involves construction of accessible facilities and removal of physical, architectural barriers, but most of the ADA involves ensuring that procedures or polices do not exclude persons with disabilities, and persons with disabilities are provided accommodations so they have the same opportunities to benefit from the programs and services of a covered entity. What does the ADA cover?

Architectural Barrier Compliance:

The only time where the construction or alteration of premises can be “fully compliant” is when the structure is constructed or altered to be fully within the standards under the Revised Americans with Disabilities Act Accessibility Guidelines (ADAAG-R). If a structure was built after 1994 and is not fully within ADAAG standards, even within construction tolerances, it is not “ADA Compliant.”

However, if a structure predates 1991, a different standard applies: Alterations must be “readily achievable.” Readily achievable means easily accomplishable without much difficulty or expense. In determining whether an action is readily achievable the ADA regulations require the entity include several factors in the analysis which include:

• The nature and cost of the action needed under this part;
• The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
•  The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
• If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
• If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

Because of the “readily achievable” standard, the owner of a public accommodation may not be able to physically modify a facility to be fully within the ADA standard, but there may be disagreements on the extent that a facility can be modified. When there is a disagreement, the facility will be subject to suit and cannot be deemed to be ADA compliant.

The definition also requires an evaluation of the financial means of the owner or operator of the facility. Accordingly, most alterations would be readily achievable for a large, financially liquid company, just as some modifications may not be readily achievable for small mom-and- pop businesses. Whether modifications are readily achievable has much to do with the success of the business that owns the facility and the cost of the modifications.

However, small businesses are provided incentives for making accessibility modifications. For example, qualified small businesses can take a disability access tax credit for $5,000 of tax credits for $10,000 spent in making their facilities accessible for persons with disabilities.

Policies and Procedures

Certifying that a public accommodation conforms to disability discrimination law is similar to certifying that a public accommodation conforms to racial discrimination law; it depends on who has face-to-face interaction with customers with disabilities and the implementation of appropriate policies and procedures to accommodate customers with disabilities.

Elements for appropriate policies and procedures include:

• Ensuring effective communications with patrons who are Deaf, Blind, or have other sensory impairments. This includes retaining sign language interpreters, producing documents in Braille or accessible electronic formats, or accessing auxiliary aids and services.
• Having policies and procedures that accommodate patrons with service animals.
• Ensuring patrons with disabilities have an equal opportunity to benefit from a program or service, such as having a ramp to a portable stage, removing a podium,
• Serving a buffet so all food or beverages are in reach range.
• Providing additional assistance for a person with a disability, such as cutting a person’s food who does not have dexterity in their hands or assisting a person in a wheelchair to reach products at the supermarket.
• Arrange transportation or other programs and services provided to persons without disabilities are equally available to persons with disabilities.

Owners and employees of public accommodations should have training and procedures on how to best serve customers with disabilities. When I train public accommodations on how to comply with the ADA, I make absolutely clear that the customer knows more about his or her needs than anyone else, and the employee does not have the authority to say no. Only a person in a managerial position should have the ability to deny an accommodation, and only where it is an undue burden or fundamental alteration of the resources of the facility. The manager should contact the customer with a disability and explain why her request was denied and then attempt to find an alternate solution.

Are Federal Courts Required to Accept Remediation Plans?

No. No. No. The Americans with Disabilities Act is a Federal law and enforced by Federal Courts. As such, the Florida legislature cannot alter or amend a federal law, and federal court do not take state law into consideration. This is an aspect of the Supremacy Clause of the United States Constitution that establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. Compliance with the ADA is not as simple as a remediation plan, and when a plan is not reasonable or does not cure the violation, then the public accommodation will always be subject to litigation.

Does this law cover “drive-by” lawsuits?

Again, no. Remediation Plans made pursuant to this new law are not meaningful in Federal Court, where ADA lawsuits are filed. Even if a public accommodation is certified or has a remediation plan, it can only be “fully compliant” if it is within the Americans with Disabilities Act Accessibility Guidelines’ standards.

But won’t qualified experts ensure that businesses adhere to the ADA?

Maybe. It depends on your expert. You must remember that professionals, even though they may be skilled in their trade, are not guaranteed to be experts on the ADA.

In my twenty years of experience, I have worked with many experts in all aspects of disability compliance to opine about compliance with the law. Each expert is a specialist in his or her field. To be deemed an expert in federal court, a person must be educated, trained, and experienced in a field. However, the Florida law has derived its own definition of experts:

(d) “Qualified expert” means:

1. An engineer licensed pursuant to ch. 471.
2. A certified general contractor licensed pursuant to ch. 489.
3. A certified building contractor licensed pursuant to ch. 489.
4. A building code administrator licensed pursuant to ch. 468.
5. A building inspector licensed pursuant to ch. 468.
6. A plans examiner licensed pursuant to ch. 468.
7. An interior designer licensed pursuant to ch. 481.
8. An architect licensed pursuant to ch. 481.
9. A landscape architect licensed pursuant to ch. 481.
10. Any person who has prepared a remediation plan related to a claim under Title III of the Americans with Disabilities Act, 42 U.S.C. s. 12182, that has been accepted by a federal court in a settlement agreement or court proceeding, or who has been qualified as an expert in Title III of the Americans with Disabilities Act, 42 U.S.C. s. 12182, by a federal court.

Most of the “Qualified experts” cannot testify in court regarding policies and procedures to accommodate persons with disabilities. Furthermore, many of the above professionals cannot create an architectural barrier removal plan. In order to widen a door to ensure that there is a 32” clearance, for example, the expert must understand if it is even possible to widen the door and the costs of doing so. If a landscape architect or an interior designer made a remediation plan that involved trades the expert was unfamiliar with, then that expert will be held liable for negligence when the public accommodation is sued.

During a lawsuit, a remediation plan may convince a Federal Court to deem that it cannot order any effective relief and may not award the plaintiff fees and costs. However, the expert must be someone who has actual training in remediating such barriers and be able to assess a reasonable time to accomplish the removal of barriers based on the resources and revenues of the public accommodation.

Should I have a Remediation Plan?

Remediation plans, whether or not completed pursuant to a Florida law, are relevant in any action under the Americans with Disabilities Act, and are a good business practice to ensure that you are providing your products and services to all of your customers. These are the steps that I would advise my clients to accomplish to devise a reasonable ADA compliance plan:

1) Hire a licensed contractor or architect with experience in ADA compliance to review the premises and develop a remediation plan and consult an expert before performing any future alterations.

While the Florida law states that ten years is acceptable for a remediation plan, a Defendant would be hard pressed to find any court that would agree with this length of time. Whether a remediation plan is reasonable depends on the difficulty of the architectural modifications and the revenue of the public accommodation. The modifications also need to be accomplished depending on the priorities. The priorities of barrier removal as stated by ADA regulations are as follows:

(c) Priorities. A public accommodation is urged to take measures to comply with the barrier removal requirements of this section in accordance with the following order of priorities.

First, a public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.

Second, a public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, rearranging tables, providing Brailled and raised character signage, widening doors, providing visual alarms, and installing ramps.

Third, a public accommodation should take measures to provide access to restroom facilities. These measures include, for example, removal of obstructing furniture or vending machines, widening of doors, installation oframps, providing accessible signage, widening of toilet stalls, and installation of grab bars.

Fourth, a public accommodation should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

When alterations are underway, that area should be fully accessible and any barrier removal modification plan should take into account the availability of tax credits. I have never seen a barrier removal plan with the largest corporations and the most difficult modifications take more than four years.

2) Review all policies and procedures to ensure that there are specific policies regarding providing sign language interpreters or other auxiliary aids and services, service animal policies, and reasonable accommodation policies.

3) Train all personnel in these policies at initial hiring and annually.

4) If you have any current customers with disabilities, engage them and ask what they like or where they have issues. Your current customers will have the best insight on what needs to be done. If you do not have any customers with disabilities, that issue is indicative of the lack of accessibility.

5) Speak to your employees with disabilities, and ask about barriers that they may face and what could be changed to make the customer experience better. Again, if you do not have any employees with disabilities, it may also demonstrate a corporate culture of not welcoming customers with disabilities.

Is there a better solution than the Florida “Remediation Plan” Statute?

The new Florida law, Section 553.5141, Florida Statutes, is a mean spirited response to a twenty-seven year old mandate to eliminate discrimination against persons with disabilities. However, Title III of the ADA does not provide damages as a remedy to an aggrieved party. As such, there is no alternative for an aggrieved party than to file a case in federal court.

For straight forward barrier removal cases, a better solution would be to enact a remedy that is more beneficial to the aggrieved party than a federal lawsuit. For example, if the legislature amended the Florida Civil Rights Act to include the ADA, claims would be required to exhaust administrative conditions before filing a lawsuit to obtain damages. However, most claims would be resolved within the administrative process, so there would be nothing for a federal court to litigate. In most cases, damages would be nominal—especially compared to litigation in federal court.

Summer Fun in Sunny Florida

By: Lorinda Gonzalez

…it’s a smile, it’s a kiss, it’s a sip of wine … it’s summertime!

     – Kenny Chesney

The temperature is rising and soon everyone will hit the beach. Summers in Florida are epic, and people travel from all over the world to feel the warm sun on their face. As a motorized wheelchair user, I too enjoy the beautiful Atlantic Ocean and sandy beaches on our coast. However, a Florida beach day isn’t as simple for me as putting on a bikini, packing towels, a beach hat and sunscreen. There’s a lot more that goes into the planning process. Unless it’s highly compacted and solid, getting your wheelchair on the sand is next to impossible. Good news! Here in Miami there are a number of recreational opportunities available for wheelchair users to enjoy in the summer festivities just like everyone else.

Sabrina Cohen Foundation
Shake-a-Leg

Click here to read more

About Lorinda

Asset Building for Individuals with Disabilities

By: Lesly Lopez

Public benefit programs for people with disabilities, especially Supplemental Security Income (SSI), are not aimed at increasing assets and independence for people with disabilities as a result individuals with disabilities often have very limited income and few, if any, assets. The intent of asset building initiatives is that as individuals develop assets, they will be able to move out of poverty and remain out of poverty. Many asset building services for people with disabilities will NOT cause loss of critical SSA disability cash payments and essential health insurance such as Medicaid or Medicare.

Types of asset building services for people with disabilities:

• Financial literacy education
• IDAs: Individual Development accounts
• Earned Income Tax Credit (EITC)
• College Savings Accounts
• ABLE account
• Work Incentives from SSA

Hurricane Preparedness: Emergency & Evacuated Assistance Program (EEAP)

Don’t let a hurricane catch you off guard, prepare in advance by registering for the Emergency & Evacuation Assistance Program (EEAP). Intended for residents that may need specialized transportation assistance or whose medical needs prevent them from evacuating themselves, the program is designed to provide evacuation support to those who live in their own homes or with their families. EEAP also offers post-disaster wellness checks. Pre-registered clients have priority so register now by calling 3-1-1 or through the online application.
Remember, in the event of an emergency call 3-1-1 or see the attached list of evacuation centers. All shelters allow service animals. Disaster kits containing your bedding, medications and personal supplies are encouraged.

Emergency & Evacuation Assistance Program Application: http://www.miamidade.gov/fire/library/hurricane/OEM/EEAP-Application-English.pdf

List of Evacuation Centers in Miami-Dade County:

Click to access hurricane-evacuation-centers.pdf

=——-]=–]]]]]][

Hurricane Preparedness: Personal Support Network

One of the most important elements in preparation for a hurricane is establishing a personal support network. There’s nothing wrong with asking a friend for help, especially in the case of an imminent disaster. A self-help team can help you prepare as well as assist you post-disaster. Your network can include people from your home, school, work, volunteer job, a neighbor, or a roommate! It’s important to choose people whom you trust, who know your needs and capabilities and who can check on you, in the event of an emergency. Establish your network and let them know ahead of time, include at least three different people for each location you spend a lot of your time at, your plan should also include an out-of-town contact. For example, choose three co-workers as well as three people from an organization you volunteer for.

Hurricane Preparedness: Personal Assessment Plan

In the upcoming segments, we will discuss two vital resources any person living with disabilities should have handy in the event of an emergency: a personal assessment and personal emergency plan. Hurricanes can strike quickly, however, knowing your functions, needs and abilities will help you to be informed and plan efficiently to save you and your family stress.
A personal assessment is designed to help the person with disabilities know what they can do for themselves and what assistance may be needed pre, post and during a hurricane. The first step is to make a list of your current needs and necessary resources. Be sure to also include other anticipated needs and required assistance in the event that you are in your lowest level of functioning during and after the disaster. Write them down and share with your personal support network. Some important questions to answer are:

• Do you need help with bathing?
• What will you do if the water service is cut off?
• Do you eat food independently?
• How will you use equipment that functions on electricity if the power runs out?
• Do you need help to get medications?
• What will you do if your caregiver cannot reach you?
• Will you be able to care for your animal in the event of an emergency?

Disasters are no easy challenge, but being prepared puts you in the best position to handle any situation.

Hurricane Preparedness: Personal Emergency Plan

A hurricane can impair daily life for as little as a day or even up to a few weeks, this can pose a real problem for everyone and especially for people living with disabilities. Your usual caregiver may not be available during or post a disaster and there’s also the chance you will be evacuated somewhere, this is where a personal emergency plan can come in handy. Your personal emergency plan should be completed and kept up to date at all times, it should be kept with you and also distributed to people in your personal support network. Your plan should include:

• Medical Information
• Immunization and Medications
• Daily Living Needs
• Communication / Emotional Needs
• Contact Information
• Escape plan
• Steps in an Emergency
• My Documents
• My Health Summary

Westchester Institute for Human Development developed this personal emergency plan template: http://www.wihd.org/wp-content/uploads/2015/02/Personal-Emergency-Plan-12-19-2011-fill.pdf

Hurricane Preparedness: Hurricane Checklist

The days leading up to a storm are stressful: from tracking the storm’s every move to swarming the stores to make sure you have everything you and your family may need. It’s easy to overlook some essential items so organize yourself by making a supply checklist. Below are some essential items to ensure you’re well prepared for any potential disaster!

• 3 day supply of water
• 3 day supply of non-perishable food
• Flashlight
• Battery Powered radio
• Batteries
• First aid kit
• Medications
• Copies of personal documents
• Personal Emergency Plan
• Personal Assessment Plan
• Extra clothing
• Camera to take photos of any damage
• Extra cash

 

The View From Here- June 2017

By: Justine Chichester

I read this quote the other day and it really resonated with me. “Stop hating yourself for everything you aren’t. Start loving yourself for everything that you are.”

I’ve been making some progress in my physical therapy lately. I started walking a little outside in front of my house. Using my walker, I’m able to take some steps down the ramp outside of my front door. I’ve managed to also walk a few more steps down my driveway, which I was so scared of when I first started. Most recently I’ve been able to take a few more steps down the sidewalk in front of my neighbors’ house too.

While up on my feet, I try to remember all of the instructions from my physical therapist – weight shift when you step with the left, weight shift when you step with the right; try to take the weight out of your arms; press down on each foot. Who knew walking could be this complicated? But at the same time, my mind is also flooded, once again, with the memories of what was. How easy it used to be to walk down this same sidewalk without even thinking about it. Daily walks with my dog Bailey; trick or treating at Halloween with my nieces and nephews. As I struggle now to move around on my feet, I can’t help but think how much I used to take this walk in front of my house for granted. Now I struggle to take a few steps to the end of the driveway. It will never be like it used to be. No matter how hard I work, it will never be the same.

My husband proudly took some video of me walking outside with my physical therapist. When I watched it back, my heart sank. I was so disappointed in what I saw. My struggle to move around was difficult for me to watch. I couldn’t believe how much I was relying on my arms, not my legs, and how short, choppy and sometimes non-existent my steps were. Suddenly I had lost all faith in my progress and how far I’d come.

It was so easy for me to let the negative thoughts overwhelm the positive ones. I so readily forgot about all of the hard work I had been putting in every, single day since I came home from the hospital. And what about all of those moments, lying in my hospital bed, I promised myself I would be out there participating in life again? How could I be this critical of myself now that I’m here, doing all of things I promised I would do?

I had to regroup. Had to remind myself that although my steps may not look like they used to, and I may never be able to take nearly as many as I used to, I am still doing it. I have fought very hard to get here and I continue to fight every day to get just a little bit further. A little bit further down the sidewalk and a little bit further towards being proud of myself living my new life everyday with a disability.

So I posted the video to my Facebook and my Instagram pages. Struggles and all. Just put it all out there for everyone to see. I was flooded with love and support from family and friends who watched and saw the progress, not the flaws. And I was proud. Just another reminder for me to “stop hating myself for everything I’m not, and start loving myself for everything I am.”

Arnaldo Rios Files His Lawsuit

Arnaldo Rios-Soto is the 27 year old Autistic Man who was involved in the North Miami shooting on July 18, 2016. Arnaldo was sitting in the middle of the street by his group home with his favorite toy truck, rocking back and forth. His hand movements and rocking behavior was self- soothing behavior that is not unusual for an Autistic person. His behavioral technologist, Charles Kinsey, was trying to get him to go back to the home. Eighty-five seconds after it was announced on the police radio that Mr. Rios-Soto had a toy, Officer Jonathan Aledda aimed his rifle at Arnaldo Rios-Soto, and shot Charles Kinsey. Like everyone, Arnaldo’s family saw the video of Charles Kinsey lying on the street with his arms raised attempting to protect Arnaldo. Until last week, it was believed that Arnaldo was held in a police car for over three hours, until he was returned to the group home.

For the three hours after the incident, North Miami stripped away Arnaldo Rios-Soto’s civil rights and human rights. Even though it was known that Mr. Rios-Soto had a toy, he was arrested and handcuffed at gunpoint, held in police vehicles for hours, and then repeatedly questioned, and interrogated at the police station. At all times, each person knew that

Arnaldo Rios-Soto had a disability and was not able to respond to questions. Nevertheless, North Miami disregarded the trauma that he had undergone as a victim, and held him solely in an attempt to extract a confession to exonerate Officer Aledda. Click here to view the custodial interrogation of Arnaldo Rios-Soto. In treating Arnaldo Rios-Soto worse than any criminal who they recognize have constitutional rights, the North Miami Police trampled the bounds of a civilized society and victimized a person who they were obligated to safeguard.

The question that we are most often asked is – How is Arnaldo doing?

Arnaldo Rios-Soto is not doing well, and it will take years for him to recover. After the incident, he went back to the scene of the shooting and was inconsolable. He continues to believe that any person in a uniform is going to hurt him.

Now, the only placement option to provide the increased care Arnaldo needs was in an intensive residential placement in Central Florida that specializes in persons with intellectual or developmental disabilities who exhibit complex and extreme behavioral disorders. Arnaldo is currently living in a residential behavioral facility in Mt. Dora, Florida, Carlton Palms Educational Center. Gladys Soto and her daughter moved from their long time residence in South Florida to Ocala to be near Arnaldo.

Prior to the incident, Arnaldo was classified as requiring intensive behavioral care at a level one, from a scale from one to six. Currently, he is at the highest level, or level six, of behavioral needs. Unlike adults or persons who can fully verbally express themselves, it is difficult for Arnaldo to convey how he feels.

For adults, post-traumatic stress disorders (PTSD) manifest by demonstrating a range of symptoms which includes hypervigilance, flashbacks, nightmares, sleep disturbance, mood disorder, emotional numbing, and difficulties with concentration. As a result, PTSD has a correlation with depression, substance abuse, eating disorders, personality disorder, chronic pain, somatization, greater use of medical and mental health resources, and non-compliance with treatment.

However, with a person with intellectual and developmental disabilities who cannot express himself, it manifests itself in aggressive and regressive behaviors. Arnaldo has gained 35 pounds and yells out “Police!” spontaneously, irresponsive of any activity going on around him. He has withdrawn from community or group activities and would prefer to sleep. Because of the lack of appropriate treatment for extreme stress related treatments for persons with intellectual disabilities with limited verbal skills, this will be an extremely difficult road for Arnaldo.

The Lawsuit

The goal for Arnaldo’s family is for Arnaldo to be able to live at home with adequate staffing and treatment, but Arnaldo has a long road before he is able to do that. There is no question that this tragedy could have been worse, and Gladys still has her son to hug and care for, that serves as no excuse to any human being treated as if their rights and lives are worthless.

Arnaldo and his mother brought claims for a violation of Arnaldo’s constitutional rights, as well as his right to be able to live in the community as a person with a disability under the Americans with Disabilities Act and the Fair Housing Act. Click here to read a copy of the complaint, which was filed in the U.S. District Court for the Southern District of Florida,

This event should be a clear call to police departments across the nation to learn about the residents with developmental or intellectual disabilities who live in their neighborhoods. For the past ten years, the North Miami Police responded to incidents in Arnaldo’s group home. Instead of obtaining training regarding these disabilities, they arrested, or tazed the residents of the group home. Disability should not be viewed as a crime, people with disabilities should not be assumed to be dangerous or unstable. Stereotypes of persons with disabilities, as well as the stereotypes of caregivers of persons with disabilities led to this shooting.

 

Disability Discrimination Ordinance Has More Teeth Than A Denture Provider

Mr. Larry McDowell presented to our office for a consultation on the afternoon of Thursday, March 17, 2016. When Mr. McDowell arrived, he needed to be guided by holding on to someone in order to get places in the office; he will need to bring someone with him who can assist him in walking as it is a liability for the office staff to physically guide him themselves. Mr. McDowell will also need assistance in going over treatment, signing paperwork, and etc.

We Apologize for Any Inconvenience.

When Larry McDowell went to Affordable Dentures in West Palm Beach, Florida, to have a dental procedure on March 17th, there was no reason that he could possibly believe that he wouldn’t be able to get the same services as anybody else. But once Mr. McDowell reached the front desk, he was directed to follow someone to the examination room. Mr. McDowell then said, “I’m blind, could you help to where I’m going?” The employee at the desk said nothing. Once a member of the office staff arrived, Mr. McDowell asked for assistance to the examination room – Mr. McDowell asked to hold her elbow.

She said, “No. We can’t help you unless you have someone to help you. We can’t treat you unless you bring someone to assist you.” Mr. McDowell then asked to speak to the dentist. When Mr. McDowell asked where the dentist was, the employee replied that he was in surgery and would be there for the next two hours. A patient who was watching the interaction told Mr. McDowell, “No he’s not. He’s standing right there.” After the patient’s remark, the employee said to Mr. McDowell, “The dentist doesn’t want to speak to you today.”

Mr. McDowell requested Affordable Dentures to email a copy of written reason to his sister, and they sent the above letter. It was then while Mr. McDowell was waiting in the office, an employee approached him and informed him he could not wait inside the office any longer and must leave, since the dentist would not be seeing him today—with the knowledge that Mr. McDowell had taken public transportation.

The Human Rights Ordinance of Palm Beach County provides more remedies than the Americans with Disabilities Act or the Florida Civil Rights Act by providing both monetary damages and requiring changes of businesses that discriminate against persons with disabilities. It also investigates complaints and attempts to resolve complaints before a lawsuit is necessary.

On July 18, 2016, Mr. McDowell filed a complaint against Affordable Dentures for disability discrimination in violation of the Housing and the Places of Public Accommodation Ordinance. The County did a full investigation and made a finding that Mr. McDowell was the subject of discrimination on March 7, 2017, and with the facilitation of the Palm Beach Office of Equal Opportunity, entered into a Conciliation agreement. While Affordable Dentures did not admit liability, it agreed to the following in an enforceable settlement with Palm Beach County.

1. Pay Larry McDowell thirty-five thousand dollars;
2. Provide Mr. McDowell a written apology in an accessible format so he can read it in his screen reader;
3. Affordable Dentures will not exclude persons with disabilities from its business;
4. Affordable Dentures will revise its policies and procedures to ensure that persons with disabilities (or their family members or companions) will receive accommodations and its policies will be modified to ensure that persons with disabilities will be provided necessary assistance when patronizing their business; and
5. Affordable Dentures will provide appropriate auxiliary aids and services to ensure effective communication.

Larry McDowell’s needs were basic human needs, and the outright denial of needs bases solely on his disability transforms him, in the eyes of this medical provider into a human who is not worthy of these basic needs. Notwithstanding that the ADA is over 25 years old, it is common-place that medical professionals, who are dedicated to the health of their patients, are too often dismissive of their patient’s disability-related needs. Most discrimination against persons with disabilities are not so blatant and ignorant as what occurred with Mr. McDowell.

Mr. McDowell did receive a written apology, not in an accessible format, but, it stated as follows:

Dear Mr. McDowell:

We are aware that your visit to our office for dental consultation on March 17, 2016 did not meet your expectations for the level of service that we strive to deliver. This entire incident has been the subject of substantial scrutiny and review and has resulted in changes to some of our procedures to avoid any such occurrences in the future.

Please understand that it is my personal policy and the practice in my office that all patients and other visitors to our facility are treated with dignity and respect. My staff and I sincerely regret that you left our office feeling that you had not received the level of care you deserve. We apologize for any shortcoming on our part, no matter how unintended it was.

This non-apology does not admit that there was anything wrong with the refusal of services to Mr. McDowell and further implies that Mr McDowell was hypersensitive or irrational in taking offense at the discrimination that he felt.

However, this is not an issue of perception of slight, the greater issue is that because of the type of behavior exhibited by Affordable Dentures, persons with disabilities are less likely to receive needed health care. According to a Disability Healthcare Access Brief published by the Disability Rights Education and Defense Fund, 19% of people with disabilities reported that they did not receive medical care needed in the previous year, compared to 6% of able-bodied persons.People with disabilities tend to be in poorer health and to use health care at a significantly higher rate than people who do not have disabilities.

However, a biding conciliation agreement and a substantial settlement ensures compliance, especially when a law with teeth is more powerful than a pair of dentures.

Are Doctors or Hospitals Required to Provide LIVE Interpreters for Deaf Patients?

By: Matthew Dietz

I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon’s knife or the chemist’s drug.

Modern Hippocratic Oath

You can’t always get what you want 
You can’t always get what you want 
You can’t always get what you want 
But if you try sometimes well you might find 
You get what you need

Rolling Stones

At least once per week, I receive a call from a Deaf person complaining that their doctor or hospital will not provide them with a sign language interpreter for their medical care.  The doctor insists that the patient should communicate either by passing notes back and forth, using Video Remote Interpreters, or by trying to lip-read.  At the same time, the Deaf person insists that they must have an in person, live interpreter for any and all medical interactions. The doctor or hospital insists that they have the choice, and the Deaf person insists that it is their choice.  Who is right?

The Answer is always effective communication!

Recently, the Eleventh Circuit Court of Appeals defined “effective communication” in a medical setting.  The court stated as follows:

There can be no question that the exchange of information between doctor and patient is part-and-parcel of healthcare services. Thus, regardless of whether a patient ultimately receives the correct diagnosis or medically acceptable treatment, that patient has been denied the equal opportunity to participate in healthcare services whenever he or she cannot communicate medically relevant information effectively with medical staff. It is not dispositive that the patient got the same ultimate treatment that would have been obtained even if the patient were not deaf.

What this means is that a Deaf patient has the right to participate in his or her care to the same degree as a hearing person, including conveying and receiving medical information from doctors or other hospital.  The ultimate result of the treatment does not matter as much as having the ability to understand the entire treatment.

So now the question is, how does a doctor or a hospital ensure effective communication?

Why is lip reading or exchanging notes often ineffective?

For many persons in the Deaf population, English is not their primary language; American Sign Language is. The Deaf person’s English ability may be at the Elementary School level.  Also, the majority of English speech sounds emanates from the tongue, throat, breath, so they are invisible on the lips. Approximately 70% of speech reading involves guesswork because only about 30% of English speech sounds appear on the lips. During a discussion about medical information, where the patient is usually nervous and anxious, this type of guesswork leads to misunderstandings and may place the patient in serious danger. Written notes may be acceptable for short and simple conversations, such as asking a question in a store, but not when the information is long, important, or complex.

Why are Qualified Interpreters necessary?

Sign Language interpreters are highly experienced professionals that have specialized expertise and training. While proficiency in English and in Sign Language is necessary, language skills alone are not sufficient for an individual to work as a professional interpreter. Becoming an interpreter is a complex process that requires a high degree of linguistic and technical skills. According to ADA Regulations, a qualified interpreter is required to be able to interpret accurately, both expressively and receptively using any specialized vocabulary needed for the communication.  While professional certification is not required under the law, an important measure of an interpreter’s proven ability is professional credentials by an accrediting organization such as Registry of Interpreters for the Deaf, Inc. (RID)

Does the Law Require Doctors to provide interpreters?

Doctors’ offices located inside of a hospital are public accommodations and are required to provide auxiliary aids and services, such as an interpreter for the appointments.  It also requires that the doctor provide an interpreter to a companion of a patient that the doctor would normally communicate with during the appointment.

Are there any benefits for the doctor by providing interpreters?

Besides the basic benefit that doctors are able to communicate with their patient and be compassionate and understanding to the Deaf patient’s needs, the Internal Revenue Service provides a “Disabled Access Tax Credit” for 50% of all amounts spent on services for the Deaf. After the first $250.00, this amount is in addition to the 50% deduction for the business expense.  So if you have several Deaf patients, the tax benefit pays for the price of the interpreter. 

When can a Doctor decide not to provide an interpreter?

1. Where the information conveyed is short, simple and not important. If the visit is to provide a flu shot, with not much discussion or conversation, then passing notes may be acceptable. However, if the patient has a pre-existing condition that would cause a side effect, an interpreter may be required.
2. When providing an interpreter is an “undue burden,” meaning that providing a $75 interpreter would have a substantial material effect on the overall resources of the doctor’s office. This may be the case if the doctor’s office has a very few patients and can hardly make ends meet. When a doctor has an active medical practice, it does not matter whether the cost of the interpreter exceeds the amount of the appointment. (1) (2) (3) (4) (5)

When can a Hospital or Doctor provide a Video Remote Interpreter?

With a Video Remote Interpreter, a live ASL interpreter is located remotely and communicates with the doctor and patient through an Internet connection via portable screen and camera located in the hospital or doctors office. According to Department of Justice Regulations, the requirements to use a VRI are as follows:

(f) Video remote interpreting (VRI) services. A public accommodation that chooses to provide qualified interpreters via VRI service shall ensure that it provides –

(1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;

(2) A sharply delineated image that is large enough to display the interpreter´s face, arms, hands, and fingers, and the participating individual´s face, arms, hands, and fingers, regardless of his or her body position;

(3) A clear, audible transmission of voices; and

(4) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI.

When the VRI does not work, or lags, is choppy, blurry, repeatedly disconnects, or the staff does not know how to use the VRI, then it is not effective communication.

VRI is good for many situations.  In some areas, it could take two or more hours to obtain an in-person interpreters for an emergency, and, without VRI, there would be only basic exchanges of notes. VRI also is useful for conversations about insurance or payment information, short exchanges of medical information, such as hospital rounds or quick questions, or other calm, straightforward, one-on-one communications.

There are many circumstances and medical procedures that VRI would NOT provide effective communication:

• Patients with low vision who cannot accurately see the screen.
• Patients with an injury or procedure that impedes their ability to view the screen. For example, this includes procedures where a person is lying on their stomach, has their feet in the air, or visiting the eye doctor.
• Patients that cannot position their hands or arms in a location where the camera on the VRI allows the remote interpreter to adequately see what the person is signing. For example, this would include someone who has IVs in their arm(s), broken arms or hands, or is in pain when moving.
• Situations where there are multiple hearing persons who would be speaking. The remote interpreter may not be able to distinguish one person’s voice from another.  The remote interpreter will not be able to distinguish between a doctor and your Aunt Martha.
• Situations where there are multiple deaf persons who are communicating with hearing medical professionals. In these situations, it may be difficult to move the VRI so multiple deaf professionals can use it.
• Situations that involve movement of the Deaf patient, such as physical or occupational therapy, as the VRI cannot be constantly moved. It would also be difficult placing the VRI in a location where the therapist could be viewed at the same time as the interpreter.
• Patients who are emotional, medicated or intoxicated, or young children who may not be able to concentrate on the screen and may not be able to keep their signing within the limited area so the VRI camera can send the image to the remote interpreter. This is similar to requesting that a hearing person who is emotional, medicated or intoxicated, or a child whisper to a doctor in order to be understood. For the same reason, if the Deaf patient is discussing sensitive issues or other emotional issues, a VRI will not be effective. 

How do you ask for an Interpreter?

1. Ask for the interpreter when you make the appointment, or immediately when you arrive at a hospital
2. If they say no, then ask to speak to the office manager or the doctor.
3. You need to ask everyone who has the authority to obtain an interpreter for you that you need an interpreter.  If it is a doctor’s office, ask to speak to the doctor or office manager.  At a hospital, ask everyone from the person who first sees you at admissions, to each nurse and doctor for an interpreter so you can understand.
4. If they say no, say that you are deaf and you will not understand if you do not get an interpreter. Tell them that it’s your right under the ADA and provide them this article or information from the ADA website about medical information.

If they insist on providing a Video Remote Interpreting, and you do not believe that it will be effective, you need to tell the doctor or nurse why the VRI will not be effective. According to the National Association of the Deaf, these are a few examples:

I need a sign language interpreter on site because (choose one or more):

1.  I cannot see the VRI screen.
2.  The VRI screen is too small; I cannot understand the interpreter.
3. The VRI machine keeps freezing and/or pixelating; I cannot understand the interpreter.
4. The VRI interpreter cannot hear you and therefore cannot interpret.
5. The VRI machine has disconnected too many times. It is not reliable.
6. The personnel here do not know how to set up the VRI machine.

Also, you can advise the doctor or nurse about the other issues above about why the VRI would not be effective.

Who gets to choose, the doctor or the Deaf patient?

According to the Eleventh Circuit Court of Appeals, “If effective communication under the circumstances is achievable with something less than an on-site interpreter, then the hospital is well within its [Americans with Disabilities Act] obligations to rely on other alternatives. Indeed, the implementing regulations clarify that ‘the ultimate decision as to what measures to take rests with’ the hospital.” 

So it all depends on whether the deaf person has an equal opportunity to understand and participate in his or her medical treatment and medical decisions. 

What do you do if the hospital refuses an interpreter or you believe a live interpreter is needed?

1.  The most important thing to do is to complain to the doctor, nurse, or other hospital staff that can provide an interpreter.
2. If the VRI is working, use the VRI interpreter to explain to the doctor or nurse why the VRI is not effective for the treatment or service. It is not enough to just say that you do not like VRI.
3. If no interpreter is provided, constantly complain to every doctor, nurse, and supervisor, and have your friends and family complain.

What to do if the Doctor in his or her office says no?

1. If the doctor leases space from a medical building that is owned by a hospital, call the hospital’s interpreter services and ask them to provide an interpreter for the doctor’s office. Under the ADA, the person who owns the space where the medical office is located may also be responsible for the accommodation.  This is the case where the building owner focuses on having all doctors and medical offices in its building
2. Call up the insurance company. Most insurance companies receive and administer Medicare policies, especially those that are a part of the Affordable Care Act (a/k/a Obamacare), and if they do, they are not allowed to discriminate in their programs and services under a law called Section 504 of the Rehabilitation Act.  Tell them that the doctor on their plan refused to provide an interpreter and you want to see a doctor that will provide an interpreter.

Mr. Lawyer, I want to sue the hospital or my doctor for not providing an interpreter!!!

Anyone can sue.  But, the only relief that Title III of Americans with Disabilities Act provides is to force the doctor or hospital that you would like to use in the future to provide you with an interpreter when you return.  Title III of the ADA does not provide a claim for money damages.  This may be different for states other than Florida where the laws provide more remedies than the ADA, such as California. 

Under the ADA, a doctor or hospital cannot refuse to see you if you complained or filed a suit against him, but, again, would you feel comfortable in treatment with a doctor that you are suing.  If you would go back to the hospital, then it’s your right!

When can I sue and receive money for discrimination.

The question that is always asked of lawyers!  Damages could be obtained without being required to go back to the doctor or hospital that you are suing.  However, if you did not complain to the doctor, nurse or someone else that had the authority to provide an interpreter, then you will not be able to sue for damages. 

Other Resources. 

1. Filing a complaint with the Department of Justice. http://www.ada.gov/filing_complaint.htm

If you are deaf and cannot communicate in English, call up the Department of Justice ADA Information Line at 1-800-514-0301 to schedule an appointment for them to take the complaint by phone.  If you file a complaint, the complaint may also be referred to the Key Bridge ADA mediation program, which will give you an opportunity to resolve the case without substantial delay. 

2. If the doctor’s office has over 15 employees or a hospital, you can complain to the Department of Health and Human Services at https://ocrportal.hhs.gov/ocr/smartscreen/main.jsf

If you are Deaf and cannot communicate in English, call up the Department of Health and Human Services, at 1-800-368-1019,to schedule an appointment for them to take the complaint by phone

3. For information on the standards when Video Remote Interpreters are effective, see the following:
   1. National Association of the Deaf position paper on Video Remote Interpreting
   2. National Association of the Deaf position paper on VRI in hospitals
   3. Registry of Interpreters for the Deaf Position Paper on Video Remote Interpreting

Katy Daniel-Rivera wins $75,000 jury verdict from Keiser University

On April 19, 2017, a jury of eight people, none of whom were deaf or knew anyone who was deaf, awarded Katy Daniel-Rivera $ 75,000 and found that she was subject to intentional discrimination based on disability because she was not provided the opportunity to enter into Keiser University’s Radiologic Technology program.

Katy is a Deaf woman who lives in Florida, and works at the Bay Pines Veterans Administration (“VA”) Hospital as a Radiology Medical Support Assistant in the Imaging Service Department.  After receiving many positive performance reviews over her three years at the VA, Katy sought to advance her career by becoming licensed by the State of Florida in Radiologic Technology.  As a Deaf woman, Katy has been successful in her chosen career and has had sign language interpreters or other services through all of her education and other licensing opportunities.

As Katy began researching programs in 2014, Keiser University had reached out to Katy and told her what a good match she would be for the University and its program in Radiologic Technology.  After finding out about the program, Katy wanted to meet personally with the admission counselor to discuss the assessment test and the program, and requested a sign language interpreter for the meeting.  The counselor denied her request, but assured her that Keiser would provide accommodations once she was admitted.  Over a twelve-month period, Katy had numerous meetings about the accommodations she needed, but was not provided an interpreter for any of them. On September 29, 2015, Keiser accepted Katy into the Radiologic Technology Program and told her to show up at orientation on October 22^nd, where they finally would provide an interpreter.  At the orientation Katy was handed a letter from the Office of the Chancellor of Keiser rejecting her from the Keiser program because she is deaf, claiming that she posed a safety risk to others and that providing interpreters would be “inordinately expensive and extremely difficult to maintain.”  Further, Keiser claimed that they could not find clinical placements for her.   Katy was crushed.

On April 10, 2016, Matthew Dietz and Lisa Goodman from Disability Independence Group, and Caroline Jackson from National Association of the Deaf Law and Advocacy Center tried the case in the U.S. District Court behalf of Ms. Daniel-Rivera.   After a six day trial and two days of deliberation, the jury of seven men and one woman found in favor of Ms. Daniel-Rivera, finding that she was subject to intentional discrimination based on her disability, and rejected Keiser’s defense that hearing was an eligibility criteria that was required for a student that was entering its Radiology Technologist program.  The jury awarded 75,000 for her mental pain and suffering as a result of this denial.  However, contrary to the verdict of the jury of Ms. Daniel-Rivera’s peers, the court felt that Ms. Daniel Rivera was not entitled to injunctive or declaratory relief, such as requiring the school to enroll Ms. Daniel Rivera.

Keiser’s reasons for rejecting Katy Daniel-Rivera were based on stereotypes and out-moded beliefs and not on the actual capabilities of Ms. Daniel-Rivera.  She has been successfully practicing in this field for several years, not once compromising other’s safety because she is deaf. Further, numerous ASL-using deaf and hard of hearing individuals have successfully trained for and performed healthcare jobs that exceed the demands of Radiologic Technology. For example, ASL-using deaf individuals currently or previously have worked as pediatricians, and as hospitalists in teaching hospitals.  Regarding expense, universities routinely provide sign language interpreters for all programs or services, as required by law.  Indeed, Keiser accepts tens of millions of dollars of federal financial assistance each year conditioned on a promise to provide interpreters when needed.  All Katy Daniel-Rivera was requesting was the opportunity to succeed in her chosen career and earn a license to be a Radiologic Technologist.  With appropriate auxiliary aids and services, a person who is Deaf can perform any job.  To deny a person that opportunity is discrimination.

SETTLEMENT UPDATE – Fired Because of Cancer

By: Matthew Dietz

In August 2015, DIG represented Gregorio Reyes in a case where he claimed that he was terminated because he had cancer.  This month, IDEX Corporation agreed to pay $380,000 to Mr. Reyes and furnish significant relief to resolve a disability discrimination lawsuit filed on his behalf by the U.S. Equal Employment Opportunity Commission (EEOC).

IDEX Corporation is a Lake Forest, Ill.-based manufacturer and supplier of fluidics systems with locations nationwide, Gregorio Reyes was originally hired in October 2007, as the Regional Sales Manager for the Caribbean for IDEX in the Fluid and Metering Segment.

In November 2010, Gregorio was diagnosed with Stage III colon cancer, hospitalized, and underwent surgery.  Immediately thereafter, Gregorio reported to his supervisor, Christopher Clarke, what had transpired and that it would be a lengthy recuperation process. Gregorio told Mr. Clark that he required chemotherapy starting in January, with a total of 12 bi-weekly sessions. The process, barring any complications, would take from 6-8 months.

At that time, IDEX appeared to be supportive. Prior to his leaving IDEX in January of 2011, Mr. Clarke advised John Boland, Mr. Clarke’s direct supervisor and Vice President that Gregorio Reyes was the person who was best suited to replace him based on Mr. Reyes’s experience and product knowledge; and Mr. Reyes had cancer.  But Mr. Boland did not take Mr. Clarke’s recommendation and hired Raul Aguilar to replace Mr. Clark.

During this time, Gregorio did not stop working, and he loved his job and relationships that he built with his customers.  He did not ask for family and medical leave time, and he did not ask for short term disability.  During the chemotherapy, Gregorio had to be hospitalized due to complications with blood clots in his left leg.  Gregorio continued to work. Mr. Aguilar spoke to Gregorio and asked him to work even while he was in the midst of chemotherapy treatments, and the exact nature and prognosis of Mr. Reyes was discussed with both Mr. Aguilar and John P. Boland, on several occasions. Gregorio was asked direct questions about his illness and the treatment.

On several occasions Raul Aguilar asked about the names of the medications that were being used for his chemotherapy and the type of procedures being used. He also inquired about Gregorio’s blood cell count and the time it would take for a full recovery.   Upon being asked again, Gregorio told Raul he should contact his doctor if he needed further clarification, or if he preferred, Gregorio could ask for a letter from her explaining his condition.   On April 6, 2011, Gregorio received an email from John Boland asking “I’m curious on your cancer diagnosis – I suspect you have a non-small cell variety and are Stage III” .  Gregorio was also asked whether his health would prohibit him from continuing to work in the future.  Gregorio continued to work, even during critical stages of his condition, and aspired to grow IDEX even more.

After his regimen of Chemotherapy was completed, Gregorio began travelling again, and made several trips from August 2011 to November 2011.

Without notice or cause, Gregorio was discharged on December 8, 2011.  When asked why, Gregorio was advised that it was not due to his performance at all, but instead, due to a restructuring of the region.  As one of the top producers, Gregorio was shocked as it did not make sense why his position would be cut.  Gregorio made it clear that he was interested in moving to keep his job, as most of his career involved relocating for jobs, and travelling for my job.  Gregorio was ignored.  Gregorio Reyes came to Matthew Dietz of Disability Independence Group to assist him in enforcing his rights as a person with a disability.

Gregorio Reyes filed a complaint with the EEOC, and the EEOC found cause that he was subject to discrimination.  On July 27, 2015, on the day after the 25^th Anniversary of the Americans with Disabilities Act, the Equal Employment Opportunities Commission filed suit on behalf of Gregorio Reyes.

In addition to the $380,000 in monetary relief to the terminated employee, the two-year consent decree resolving the suit also requires IDEX to create a disability discrimination policy to be used with IDEX’s U.S.-based employees. The company is also required to train all U.S.-based human resources managers on the ADA’s prohibition against disability discrimination and the rights and responsibilities of managers and employees under the ADA, as well as IDEX’s new policy. The HR managers will, in turn, train all U.S.-based managers on these matters. IDEX also will address questions managers may have about the company’s new policy and review hypothetical accommodation request scenarios with managers. IDEX must post and distribute notices concerning the decree through email, its company website, and at locations nationwide.

Also, IDEX must make periodic reports to the EEOC, including reports on employees who are involuntarily separated from IDEX during the decree’s duration, and who requested and/or received a medical or health-related accommodation, including ADA accommodations, within the six months prior to that employee’s involuntarily separation from IDEX.

“The conduct in this case is a shocking reminder of why the Americans With Disabilities Act is such a critical law,” said EEOC Miami District Director Michael Farrell. “Situations like this demonstrate why the EEOC’s law enforcement responsibilities are so important in today’s workplace.”

EEOC Miami District Office Regional Attorney Robert Weisberg added, “The ADA was intended to eradicate the mistreatment of employees with disabilities based on misconceptions about their ability to perform their jobs.”