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

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By: Matthew Dietz

a doctor's office

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. 

  1. 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

  1. 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

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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 22nd, 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

Gregorio Reyes
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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 25th 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.”

The View from Here – April 2017

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By: Justine Chichester

The last time I drove a car was September 20, 2014. I remember that day like it was yesterday, and yet with everything that’s happened over the past couple of years, it seems like a lifetime ago. Of all the things my injury has taken from me, my ability to walk, to stand, to dance; one of the things I miss the most is driving. I miss the days when I could just hop in my car and get to wherever I wanted to go, whenever I wanted to go there.

Now I sit and wait. And I have for a long time. I have to rely on family and friends to get around when I need to go somewhere. As much independence as I am gaining everyday, getting my strength back in physical therapy, and regaining the ability to take a few steps, not being able to drive still leaves me very dependent on others around me.

I was so excited when I heard about the Advanced Driver Rehabilitation program. I thought that because I had lost the use of my right leg, I had lost the ability to drive all together. But I learned this couldn’t be further from the truth. Through the use of hand controls, many people living with disabilities drive themselves every single day. Now, I would be one of them. It was like a light bulb went off.  I did all of my research and I called to schedule my appointment for an evaluation. I told my family members, friends and anyone who would listen, how excited I was to be taking yet another step towards getting my independence back. I would be driving again.

After much anticipation, the day finally arrived. I took the initial test, passed the evaluation and the time had come to start my training. I was going to be behind the wheel of a car again for the first time in almost three years. As I transferred from my wheelchair into the car, I was finally behind the wheel, ready to drive and I was truly ecstatic. I sat in the driver’s seat and learned how to fold my legs back and how to steer the car using the hand controls on the steering wheel. As we sat in the car in my driveway, I cheered with glee during that first lesson just envisioning the prospect this newfound freedom would bring me.

With my instructor in the passenger seat, I started the car and began to steer out of the driveway using the hand controls to accelerate and to brake. It was very different and very slow at first. I drove down the street in front of my house and around the block. I was surprised at how I was suddenly flooded with the memories of what my life used to be. How I used to drive to work, drive to dinner, to the grocery store, drive to meet friends. I had forgotten what it felt like. Being behind the wheel once again brought back all of these memories of my life before my injury. I could not have anticipated how emotional this new step would be.

As I drove the car around the block for the first time in years, I had to adjust to how different this drive and this future would really be for me. It felt different and it certainly looked different, but in the end, the most important thing is that I was not only regaining the ability to drive my own car again, I was reclaiming the independence I once had and lost for so many years.

The View from Here

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By: Justine Chichester

There are so many great quotes about friendship. One of my favorites came from the champ himself, Muhammad Ali.  He once said, “Friendship is not something you learn in school. But if you haven’t learned the meaning of friendship, you really haven’t learned anything.”

When I first came home from the hospital, I was not prepared for how different my life would be. Before my fall, before all of the tests and subsequent surgeries, before the couple of years in and out of the hospital and then in and out of rehab, I led a very active life. I had a background in theater and dance. I sat on the Board of Directors of a charity organization and managed to work full-time. But after one slip, one night in front of my house, all of that completely changed. I spent the next couple of years immersed in my medical issues. That became my life.

While I was in the hospital, I wanted nothing more than to be home. Once I was home, I felt derailed. Sidelined from life. The transition from the hospital back home was not easy for me. I felt homebound and unsure how to get back to my life as I once knew it. Everyday tasks that used to be so easy for me, were now so difficult. Wheeling around my house, where I used to walk, took a lot of getting used to. I wasn’t comfortable in this new life and as a result, I began to isolate myself from the outside world. Friends and family would call or email and I started not returning their phone calls or their emails. I watched the world go by as I slowly isolated myself from it.

I have been so lucky to have a loving family and a few close friends with me throughout this experience. To say that my best friend is persistent would be an understatement. She pushed through. When she called and I didn’t answer, she would send text messages. When I wouldn’t answer her text, she came to the door.  And she knocked on the door until I answered. She continued to try. She didn’t give up. While I felt like the world was going on without me, she helped me remember that I was not alone and I could rely on my friends to help me through this transition. As a result of her persistence, I answered the door. I let her in, and by doing so, I realized that I could rely on those close to me to help me adjust to my new normal. I started answering the phone and those emails. With the support of my friends and my family, I slowly began to participate in my life once again. I started getting out, and I was excited about meeting up with my friends and not feeling like I had to be so alone.

I’ve learned so much since that day two years ago. One of the most valuable lessons, though, has been the power of friendship. It is so important to reach out, even when someone may seem distant. Don’t give up on those you love, no matter how busy life can be. We don’t always know exactly what battles our friends and loved ones may be facing. Sometimes just letting them know you are there, and that they are needed, can make all the difference.

 

4-F – Disabled and Unfit for Military Service

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Can you be drafted in the military if you have a disability?

What constitutes a disability that would make you ineligible to be drafted?

By Matthew W. Dietz

As a father of a 19-year-old in a volatile time where a tweetstorm of thoughtless insults can turn into a firestorm of bombs, I worry about the future of my son and all young men of his generation. Currently, the United States Armed Forces is an all-volunteer military force, and there has not been a draft since 1973. However, reactivating the draft is a possibility in the event of a need to supplement the military — all men between 18 and 25 are potentially subject to miliarmy-pic2tary conscription or “the draft.”  In the event that Congress and the President authorize a mobilization to increase the number of active troops, a lottery would be held based on birthdays which determines the order of men to be drafted.  Those with low lottery numbers receive examination orders and are ordered to report for a physical mental and moral evaluation at a Military Entrance Processing Station (MEPS) to determine whether they are fit for military service.  Once the person is notified of the results, a registrant will be given ten days to file a claim for exemption.

Disability is a reason for an exemption. The United States military requires that all enlisted and commissioned personnel be ready for “active duty.” This means one must at all times be physically, emotionally, and psychologically ready to serve – to the military’s standards of fitness.  The military has standards for fitness to be inducted into the military, and the purposes of the standards are to ensure that inductees are:

(1) Free of contagious diseases that probably will endanger the health of other personnel.

(2) Free of medical conditions or physical defects that may require excessive time lost from duty for necessary treatment or hospitalization, or probably will result in separation from the Service for medical unfitness.

(3) Medically capable of satisfactorily completing required training.

(4) Medically adaptable to the military environment without the necessity of geographical area limitations.

(5) Medically capable of performing duties without aggravation of existing physical defects or medical conditions.

What Types of Disabilities are Disqualifying?

The goal of the military preparedness is to develop a fighting force without the need of special accommodation for disability. In as much as a person would need an accommodation, including, but not limited to, specialized equipment, medication, or additional services, may potentially lead to a danger to the unit.  As such, the military lists the conditions and impairments that are disqualifying.

Physical Disabilities – There is a listing of a plethora of physical disabilities that are potentially army-pic1disqualifying for a person that is conscripted.  This includes issues regarding functioning of bodily systems and physical deformities.

  • Blindness or low vision that does not correct with glasses
  • Deafness of hard of hearing, even with the use of a hearing aid
  • History of Bariatric Surgery
  • Anything that interferes with the proper wearing of a military uniform or equipment
    • Limitation of motion
    • HIV or AIDS
    • Anaphylaxis due to stinging insects or systemic allergic reactions to food
    • Diabetes
    • Rheumatologic conditions
    • Migraine headaches or trauma as a result of head injuries
    • Chronic insomnia

Learning, Psychiatric, and Behavioral Disabilities –

The military is currently very selective with regards to allowing persons with learning or other mental disabilities to be inducted into the military. Part of becoming an effective soldier is to learn to suppress one’s individual needs for the needs of the unit.  Thus neurodiversity is not valued as much as conformance to the operation as a unit that can follow orders.   As such, many cognitive, learning, or developmental conditions would be disqualifying:

Attention Deficit Hyperactivity Disorder (ADHD) – A person may be disqualified from military duty if

  • The applicant has not required an Individualized Education Program army-pic6or work accommodations since the age of 14.
  • There is no history of comorbid mental disorders.
  • The applicant has never taken more than a single daily dosage of medication or has not been prescribed medication for this condition for more than 24 cumulative months after the age of 14, and prior to enlistment.
  • During periods off of medication after the age of 14, the applicant has been able to maintain at least a 2.0 grade point average without accommodations.
  • Documentation from the applicant’s prescribing provider that continued medication is not required for acceptable occupational or work performance.
  • Applicant is required to enter service and pass Service-specific training periods with no prescribed medication for 14 months.

In 2011, according to the Centers for Disease Control, approximately 11% of children 4-17 years of age (6.4 million) have been diagnosed with ADHD. Apparently, dependence on stimulants for ADHD is disqualifying.  These medications include Strattera, Adderall, Ritalin, Vyvanse and many other medications.  Currently, one in three children with ADHD take medications for this disability.

History of learning disorders, including but not limited to dyslexia – a person will be disqualified UNLESS applicants demonstrated passing academic and employment performance without utilization of academic and or work accommodations at any time since age 14.

Autism – Pervasive developmental disorders) including Asperger Syndrome, autistic spectrum disorders, and pervasive developmental disorder-not otherwise specified.

Psychosis – Current or history of disorders with psychotic features such as schizophrenic disorders, delusional disorders, bipolar disorders or other and unspecified psychoses.

army-pic9Depression – History of depressive disorders, including but not limited to major depression, dysthymic disorder, and cyclothymic disorder requiring outpatient care for longer than 12 months by a physician or other mental health professional, or any inpatient treatment in a hospital or residential facility.

Mood Disorders – Depressive disorder not otherwise specified, or unspecified mood disorder

  • Outpatient care was required for longer than 24 months (cumulative) by a physician or other mental health professional.
  • The applicant has not been stable without treatment for the past 36 continuous months.
  • The applicant required any inpatient treatment in a hospital or residential facility.

Adjustment disorders – History of a single adjustment disorder within the previous 3 months, or recurrent episodes of adjustment disorders.

Behavior Disorders – Current or history of disturbance of conduct, impulse control, oppositional defiant, other behavior disorders, or personality disorder.

  • History (demonstrated by repeated inability to maintain reasonable adjustment in school, with employers or fellow workers, or other social groups), interview, or psychological testing revealing that the degree of immaturity, instability, of personality inadequacy, impulsiveness, or dependency shall likely interfere with adjustment in the Military Services.
  • Recurrent encounters with law enforcement agencies (excluding minor traffic violations) or antisocial behaviors are tangible evidence of impaired capacity to adapt to military service.

Encopresis (fecal incontinence) after 13th birthday.

Eating Disorders – History of anorexia nervosa or bulimia, and other unspecified disorders of eating occurring after the 13th birthday.

Stuttering – Any current receptive or expressive language disorder, including but not limited to any speech impediment or stammering and stuttering of such a degree as to significantly interfere with production of speech or the ability to repeat commands.

Suicidal behaviors – History of suicidal behavior, including gesture(s) or attempt(s) or history of self-mutilation or injury used as a way of dealing with life and emotions.

PTSD or OCD – History of obsessive-compulsive disorder or post-traumatic stress disorder

Anxiety – History of anxiety disorders, panic disorder, agoraphobia, social phobia or other acute reactions to stress UNLESS:

  • The applicant did not require any treatment in an inpatient or residential facility.
  • Outpatient care was not required for longer than 12 months (cumulative) by a physician or other mental health professional.
  • The applicant has not required treatment (including medication) for the past 24 continuous months.
  • The applicant has been stable without loss of time from normal pursuits for repeated periods even if of brief duration; and without symptoms or behavior of a repeated nature that impaired social, school, or work efficiency for the past 24 continuous months.

Current or history of dissociative, conversion, or factitious disorders, depersonalization (300.6), hypochondriasis, somatoform disorders, or pain disorder related to psychological factorsarmy-pic10

Current or history of psychosexual conditions, including but not limited to transsexualism, exhibitionism, transvestism, voyeurism,and other paraphilias. Whenever I think of this factor, I cannot help but remember Maxwell Q. Kinger from M.A.S.H.

 Medical Marijuana is Disqualifying!

Current use of Marijuana, or any of alcohol dependence, drug dependence, alcohol abuse, or other drug abuse is disqualifying.  A history of such use may be disqualifying as well.

Documentation Required to Establish Disability

As part of my practice, when a person requires an accommodation, I am a stickler for developing a history of disability and receipt of accommodations, and then when subsequent accommodations are needed, the proof will be at hand.  In the same way, this information is essential in establishing ineligibility for the draft.  It is good practice to obtain all copies of Individual Education Plans, reports of disability by doctors, and prior requests for accommodations, and provisions of accommodation, as well as a medication log.  All of this information should be kept in a binder as well as electronically.

But, what happens if you want to serve your country?

Rest assured, you can play a role to serve your country. If you believe that you are still able to serve, you can always seek a waiver of disability.   But even with a disability, you can work in a civilian role in the military.  A federal mandate states that all U.S. Military bases must have 10% of their civilian workforce composed of individuals with disabilities. The U.S. Navy boasts that they have been ranked number five in the nation among all employers—private sector corporations included—who employ individuals with disabilities.

References

Department of Defense – Medical Standards for Appointment, Enlistment, or Induction in the Military Services – Policy No. 6130.03  – http://dtic.mil/whs/directives/corres/pdf/613003p.pdf

Army Regulation 40–501, Medical Services – Standards of Medical Fitness – http://www.apd.army.mil/pdffiles/r40_501.pdf

DIG Builds Partnerships

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In 2016 DIG Builds Partnerships at the INTERSECTION of Domestic Violence and DisabilityTwo roads crossing

In 2016, one of DIG’s greatest accomplishments was becoming part of the solution for the serious problem of access to domestic violence and sexual assault services for persons with disabilities.  We did this by spending the year building partnerships with three organizations that are the pillars in our community for serving victims of abuse. They are MUJER ( Mujeres Unidas en Justicia,Educacion,y Reforma, inc.) CVAC ( Coordinated Victim assistance Center of Miami Dade County), and Dade Legal Aid.

 

With a grant from the Office of Violence Against Women, US Dept. Of Justice (only 6 awarded in the country) we spent this year creating a Charter that will direct our work together for the next two years.

One organization can never offer all the services victims/survivors with disabilities need when experiencing violence and abuse. With funding so scarce, it is almost impossible for one organization to serve everyone and offer all services. That is why the only solution is creative and meaningful collaborations. The Miami Inclusion Alliance (MIA)’ that we formed this year,  is such a collaboration. The four of us have come together to forge a partnership that will lead to a safer, more accessible system of care for victims who are persons with disabilities.  This partnership will allow each of us to expand our understanding of victims/survivors’ needs and combine our resources to create a system of services that is more complete and integrated.

What Can Be Achieved when you build the right Collaboration?  NEW and CREATIVE SOLUTIONS

To do that you must:

  1. Involve the right organizations and people.
  2. Learn about each organization.
  3. Create a shared mission and vision, and shared values.
  4. Develop clear expectations regarding roles and responsibilities.
  5. Determine how best to work together.
  6. Keep safety and access at the forefront.
  7. Dedicate sufficient time and resources to the collaboration. *

 

That is what we have done in 2016 and we look forward to even more important work in 2017.

*(http://www.endabusepwd.org/)