If you are disabled and you are pursuing employment, you are not alone. You can find many agencies providing employment support that will help you reach your vocational goal.
If you are disabled and you are pursuing employment, you are not alone. You can find many agencies providing employment support that will help you reach your vocational goal.
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.
(Actual copy of letter)
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.
Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity.
Martin Luther King, Jr.
Larry McDowell’s needs were basic human needs, and the outright denial of such services based solely on his disability transforms him, in the eyes of this medical provider, into a human who is not worthy of basic services. Mr. McDowell is a man who has transformed his life to assist others. He is a member of the National Federation of the Blind and is currently the President of the Braille Club of Palm Beach County. The Braille Club of Palm Beach County organizes social activities and weekly meeting among the blind and visually impaired community in Palm Beach. In his free time, Mr. McDowell seeks to live an ordinary life filled with friends and outings.
“Aside from the public health issues that most racial/ethnic minorities face, minorities with disabilities experience additional disparities in health, prejudice, discrimination, economic barriers, and difficulties accessing care as a result of their disability—in effect, they face a “double burden.” “Disability-based discrimination in health care is illegal under the Americans with Disabilities Act and will not be tolerated,” said Eve L. Hill, Deputy Assistant Attorney General for the Civil Rights Division at the Department of Justice. “All types of health care providers – from hospitals to nursing homes, from surgeons to general practitioners – all across the country – need to provide equal access to people with disabilities, including people who are deaf…, the time for compliance is now.”
Notwithstanding the fact 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. Some of the issues which serve as barriers to persons with disabilities include inaccessible physical environments, and inflexible policies and procedures that, for example, assume that everyone must be able to independently fill out forms, undress unaided, transfer to high examination tables, and communicate in spoken English to receive standard health care services.
The failure to provide accommodations and an accessible environment will, at the least, lead to health care disparities, and at the worst, lead to injury and death.
The most common issue at Disability Independence Group is doctors and hospitals that refuse to provide sign language interpreters for people who are deaf. Instead these professionals choose to communicate in English by writing notes or using technology that fails to work accurately and timely. This leads to miscommunication and does not allow the deaf patient to have the full opportunity for medical choice as any hearing person would expect. This failure to communicate leads to misdiagnosis, failure to take the appropriate medicines, and continued illness. When it comes to psychiatric treatment, it often exacerbates the symptoms. Other issues that often arise are as follows:
However, the main issue is the fact that because of the difficulties that persons with disabilities encounter, such persons 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 non disabled 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. Larry McDowell is not a statistic, but instead a blatant example of an issue which needs to be addressed. Equality in health care is not a benefit, but a basic right.
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
At least once per week, I receive a call from a Deaf person complaining that their doctor will not provide them a sign language interpreter for their visit to the doctor. The doctor insists that the patient should communicate by passing notes back and forth or by trying to lip read. If the Deaf person insists on an interpreter, the doctor demands that the Deaf person pay the costs of the interpreter.
Why is this wrong?
For many persons in the Deaf population, English is not their primary language, American Sign Language is their primary language. The Deaf person’s English ability may be in the Elementary School level. Also, the majority of English speech sounds emanates from the tongue, throat, breath, and are invisible on the lips. Only about 30% of English speech sounds appear on the lips. Approximately 70% of speech reading involves guesswork apart from the actual information received by viewing speech on the mouth. During a discussion on 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. Also, 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?
A doctor’s office is a public accommodation that is 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 to providing interpreters for the doctor?
Besides the basic benefit that doctors are able to communicate with their patient, 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 is spent, this amounts are 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 from the shot, an interpreter may be required.
2. When providing an interpreter is an “undue burden”. If providing an interpreter for $75 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 doctor’s appointment. (1) (2) (3) (4) (5)
How do you ask for an Interpreter?
1. Ask for the interpreter when you make the appointment.
2. If they say no, then ask to speak to the office manager or the doctor.
3. Ask the office manager or the doctor.
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.
5. Try to ask for their fax number so you can give them the information.
6. Call before the appointment to make sure than an interpreter will be there.
What to do if the Doctor 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.
Insurance Companies are not always that helpful.
I asked Kayla, Disability Independence Group’s client concierge, to call up several insurance companies to ask them if they would cover the cost of interpreters if the doctors would not. This is what occurred:
I called their customer service asked: “If someone is deaf and their doctor cannot give them an interpreter when they ask because the doctor’s insurance doesn’t cover it, will the patient’s insurance cover it?”
*Put on hold while they researched the answer*
They said they weren’t sure what the answer was and maybe sales would know, that maybe it was a benefit of one of the policies.
I asked if they had anything on their website about it, they asked if I had seen anything on the website about it, I said no, and they said there probably isn’t anything on the website then. They said they would connect me to sales. I was put on hold for sales then sales disconnected me. I tried again and I kept on being transferred.
I called their main line at 1-800-872-3862 and was directed to sales, specific for the state I lived in and whether your plan is private or employer. I said it was a private plan (like a Medicare plan), and I was told that obtaining an interpreter would depend on your plan if insurance would cover an interpreter. Nothing on their website about it. I also sent the question online in their question/contact form but haven’t heard back yet. Then, when I called, I was transferred over from sales to someone else, went back to “general questions” people. I just kept getting transferred from person to person and everyone said someone else would know better than them…I never got an answer from anyone.
On their website say they accept TTY calls and to let them know if you need assistance when contacting them in general. Did not see this on the Aetna or Humana websites. Called 1-800-553-7654. Spoke to them and they said “we have Spanish interpreters” even though I explicitly said for someone who is deaf or hearing impaired. They said they do not have that.
Matt, I want to sue 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 that you would like to use to provide you with an interpreter. Title III of the ADA does not provide a claim for money damages. This may be different for states other than Florida that have laws that provide more remedies than the ADA, such as California.
So, I would always have concerns about suing a doctor that I would want to see. The same concerns that I would have about being rude to a waiter who is serving my food.
Under the ADA, a doctor cannot refuse to see you if you complained or filed a suit against him, but, again, would you feel comfortable in treating 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! There are two circumstances where damages could be obtained without being required to go back to the doctor that you are suing.
1. If the doctor’s office has over fifteen employees and they accept Medicare or Medicaid, they would need to provide interpreters under the Rehabilitation Act. Under the Rehabilitation Act, you would need to make sure that you asked the doctor and office manager for an interpreter, and if they said no, you told them about your rights, and they still continued to deny you an interpreter.
2. By complaining to the Department of Justice and the Department of Justice brought a case on your behalf against the doctor.
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 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
By: Rachel Goldstein
For the last part of my series I am going to address how the Americans with Disabilities Act (ADA) applies to service animals and the responsibilities of businesses to allow service animals into their facilities. The ADA defines “service animal” as limited to a dog that is individually trained to do work or perform tasks for an individual with a disability and the tasks must be directly related to the person’s disability. An important distinction from other federal law (such as the Fair Housing Act) is that the ADA defines service animals to include only dogs and the ADA does not consider emotional support, therapy, companion or comfort animals as service animals.
When it is obvious that the animal is trained to do work or perform tasks for an individual with a disability, such as when the dog is retrieving items out of reach for a person using a wheelchair, staff cannot question the person. However, when it is not obvious that the dog is a service animal, businesses and their staff may ask only two specific questions:
In either instance, staff is not allowed to ask about the nature of the person’s disability or require any documentation for the dog like proof that the animal has been certified, trained, or licensed as a service animal, or require that the dog show what tasks it performs. The ADA does not require service animals to wear a vest, ID tag, or specific harness and businesses are not allowed to require such identification for entry. Staff must also allow service animals to go anywhere in the business the public and other customers are allowed to go and cannot be restricted to ”pet friendly” areas or rooms.
Staff are not responsible for watching or caring for a service animal when in its business and do not have to walk, feed or groom the dog. It is the responsibility of the person with a disability or a handler to supervise, care for and control the dog. If the service animal is out of control and the handler does not or cannot control it, or if the dog is not housebroken, staff may then request the animal be removed from the business. Also, if allowing service animals would fundamentally alter the nature of a service or program (change the essential nature of your business), service animals may be excluded.
Again, as I have previously emphasized, comprehensive training is essential! Staff has to be aware of their obligations and what they can and cannot ask as they play such an important role in making sure individuals with disabilities are included in everyday activities and provided the same opportunities as individuals without disabilities.
The Department of Justice issued guidance on July 13, 2015 entitled Frequently Asked Questions about Service Animals and the ADA, which may provide further useful information for your business. For more information please visit http://www.ada.gov/regs2010/service_animal_qa.html
By: Matthew Dietz
“We are more than happy to have you all with us to experance a bit of TEXAS. Unfortunately the Law in Texas does not allow us to serve alcohol drinks to high functing individuals.”
Kelly @ Stampede Houston
Becky Dowling runs a program in the Metro Atlanta area called “Just” People, which provides support services and housing to persons with developmental disabilities. These folks are what is considered “high functioning” and are able to do many activities of daily living on their own, and need some support services on a daily or weekly basis to assist them in living independently. As part of this program, “Just” people has a social component, where the participants in the program can do outings every weekend, from bowling and movie night to international cruises. The “Just” People community has been to eighteen cruises in the past twenty years.
So, it was not unusual for the “Just” People community to want to have a taste of some good ‘ole Texas hospitality, do a little line dancing, the tango with the mechanical bull, and down a few buds down in Houston Texas. So, director, Betty Dowling set up a trip to take 88 people in the “Just” People community to Houston to have a taste of Texas, and book a party at Stampede Houston.
They were told that they all were welcome down at Stampede Houston, and they’ll take their money and let them “experance a bit of TEXAS. Unfortunately the Law in Texas does not allow us to serve alcohol drinks to high functing individuals.”
All oxymorons aside, not only is this wrong, it violates the Americans with Disabilities Act. One of the stated purposes of the law is as follows:
In enacting the ADA, Congress recognized that physical and mental disabilities in no way diminishes a person’s right to fully participate in all aspects of society, but that people with physical or mental disabilities are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers. (ADA Amendments Act, 42 U.S.C. 12101(a)(2))
The most common form of prejudice and antiquated attitudes is the perceived infantilization of persons with disabilities, that persons with disabilities are perpetually childlike, innocent and vulnerable. People with disabilities should and could enjoy life, just like anyone else, including, but not limited to drinking, having a sex life, and even….having children!
The first time that I had a speaking engagement outside of Miami was at the University of Florida Disability Student Association symposium. Unbeknownst to me, it focused on disability and sexuality, and the keynote speaker was little person porn star, Bridget “the midget” Powers. I was invited to the conference by a student, Bethany Stevens, who is now a renowned disability sexologist. When I met this small woman in a wheelchair with a t-shirt that said “Gimp Pimp”, she was better versed in dildos that I was in discrimination. The remainder of the conference expressed the goal that whoever you are, whatever beautiful forms your body comes in, you can have enjoyable sex. I was truly out of my league. And as Bethany herself says, in her blog – cripconfessions.com – “Sexuality is a human right that EVERYONE is worthy of and EVERYONE can find someone to be interested in them.” So, infantilization is a pernicious stereotype. It is just made for able bodied persons to make them feel good about protecting persons with disabilities.
As for drinking, I find it hard to believe that a person with a developmental disability poses more of a danger than Texas citizens who exercise their right to carry a shotgun or a rifle in the open enjoying a few beers. However, Texas law does prohibit the sale of alcohol to some people, as follows:
Sec. 101.63. SALE TO CERTAIN PERSONS. (a) A person commits an offense if the person with criminal negligence sells an alcoholic beverage to a habitual drunkard or an intoxicated or insane person.
Now, there is no definition of “insane” person under this section, but the traditional legal test is whether or not a person knew the difference between right and wrong. That then begs the question, whether anyone after six beers can really be deemed sane (disabled or able-bodied). Maybe Stampede Houston needs a new lawyer….
Believe it, or not, Betty Dowling and the world travelers at “Just” People would like to still go to Stampede Houston on September 11th. If you think this is wrong, why don’t y’all go down to Stampede Houston and have some hooch and tango with the mechanical bull and give them a piece of your mind, or better yet, call them and tell them that they are wrong, and it’s time to stop treating persons with disabilities like children that they need to protect – they should worry more about drunk folks with guns.
Back to School – This graphic is the symbol of accessibility at Florida State University. It reflects the importance of a free and equal education for all persons with disabilities, which is essential to ensure that there are persons with disabilities who are leaders in society, including, lawyers, doctors, teachers, politicians, and every single other profession.
According to the UN Convention on the Rights of Persons with Disabilities, the right to education is a cornerstone of full societal inclusion. The convention (of which the United Sates has not adopted) requires nations to ensure an inclusive education system at all levels and lifelong learning directed to:
Without education and inclusion, there will be no effective enforcement of Disability Rights.
By: Zachary Trautenberg
On July 26th the Americans with Disabilities Act will be turning 25 years old. The Americans with Disabilities Act is a law designed to make the United States accessible for persons with disabilities. Originally enacted in 1990 it has been updated over the 25 year period.
The Americans with Disabilities Act is a great tool that has literally and figuratively opened many doors for persons with disabilities, but it is not perfect by any means. The biggest challenge for persons with disabilities is the fact that our abilities and inabilities are extremely unique. Each and every persons has certain strengths and weaknesses. The best accommodation for one person may not be the best accommodation for another. For example, I have recently been looking at refrigerators and many are rated accessible by the standards set in the Americans with Disabilities Act, but these refrigerators are still not accessible for me.
My advice is always follow the regulations in the Americans with Disabilities Act if for no other reason than for not getting sued. Just be there to assist a client, friend, and or family member that has a disability. Do your best to assist them even if that means going above and beyond the Americans with Disabilities Act. For example, if the door to your store is legally considered accessible by the Americans with Disabilities Act, but you see someone in a wheelchair struggling offer to hold it for them.
I see the Americans with Disabilities Act as a set of legal guidelines for us to follow. I also do not believe that it should mean we ignore what is right in front of us. We have a moral duty to try and provide the best services for everyone regardless of our abilities or inabilities.
I believe that the Americans with Disabilities Act has done some amazing things for persons with disabilities, but I believe that it should be a living document ever evolving and expanding. I feel that the United States and the Americans with Disabilities Act is amazing, but we can continue to learn and make things better.
If you like this article and want to read more by Zachary Trautenberg, check out his blog Independent and Accessible Living at http://www.independentaccessibleliving.com.
The ADA has had an overarching impact on all aspects of life, including competitive sports. Casey Martin, a professional golfer, highlighted the true impact of the ADA in the sports world in 2001 when he won his lawsuit against the PGA tour under the Americans with Disabilities Act. The PGA Tour, the main organizer of professional golf tours in the United States, required the golfers to walk between shots in the third round of competition. Martin, who has a circulatory condition which affects his right leg, was unable to adhere to this rule, and therefore requested a golf cart as an accommodation for all rounds of the game. Through the ADA’s stipulations of accessibility and inclusion, the Supreme Court ruled for Martin in a 7-2 decision. This court ruling demonstrated the importance of complying to the ADA by providing reasonable accommodations for disabled athletes while still playing a fair game.
By: Lester Langer
OVER THE LAST SEVERAL editions of our newsletter we have discussed mediation. But did you know mediation is available under the ADA Mediation Program? This is an informal process but you have to request it after you file your complaint. Since its inception the program has mediated more than 4000 complaints with 78% being resolved successfully.
Complaints under tile II (state and local government services) and title III (public accommodations) can be mediated. There is NO COST to either party and it is not necessary to have an attorney. However as we have discussed previously it would be in your best interest at least to consult with an attorney or retain one to navigate the law and the process.
Remember the process is confidential, efficient and voluntary.
You can terminate the mediation at any time during the process but once you sign off on the settlement agreement you will be bound by it as well as the other side.
Should you decide not to mediate you will not give up any of your legal rights to pursue an appropriate legal action to redress your issues.
For more information you can visit the ADA web site at:
In the next newsletter we will begin discussing Arbitration. Should you have any questions please contact me through this newsletter and I will try to give you and our readers a full answer.
Lester Langer, Florida Supreme Court Certified Civil and Appellate Mediator
So on a sunny day 25 years ago … President George H.W. Bush stood on the South Lawn and declared a new American Independence Day. “With today’s signing of the landmark Americans with Disabilities Act,” he said, “every man, woman and child with a disability can now pass through once-closed doors into a bright new era of equality, freedom and independence.”
Twenty-five years later, we come together to celebrate that groundbreaking law and all that the law has made possible. Thanks to the ADA, the places that comprise our shared American life — schools, workplaces, movie theaters, courthouses, buses, baseball stadiums, national parks — they truly belong to everyone. Millions of Americans with disabilities have had the chance to develop their talents and make their unique contributions to the world. And thanks to them, America is stronger and more vibrant; it is a better country because of the ADA.
That’s what this law has achieved.
Remarks of President Barak Obama on the 25th Anniversary of the ADA, July 20, 2015.