Stereotypes & Misconceptions about Disability

By: Lorinda Gonzalez

“Your assumptions are your windows on the world.  Scrub them off every once in a while, or the light won’t come in.” ― Isaac Asimov

Deaf people can’t dance.  Blind people don’t like art.  People in wheelchairs can’t have sex.  These are just a few of the stereotypes and misconceptions that are common trains of thought about individuals with disabilities.  Many people assume all sorts of falsehoods that are, in fact, not true! Such assumptions can lead to extremely serious mistakes in judgment—and lead to missed opportunities to engage with a group of wonderful people.  In order to break through these stereotypes and misconceptions, we can start by having an open mind and acknowledging that no two people are exactly alike.

Deaf to Dancing – Breaking Barriers One Step at a Time

[1]Nyle DiMarco, an American model and actor, showed the public that a deaf person could not only dance, but win the infamous Dancing with the Stars Mirror Ball.  He was paired with professional dancer Peta Murgatroyd, who had no experience whatsoever with working alongside a deaf person, nor did she have any training in sign language.  Interestingly, as the show progressed viewers saw the couple peel away stereotypes one week at a time by showing America that yes … a deaf person can dance and dance well!  During the ninth week of competition, the couple decided to show viewers exactly what it was like for DiMarco to dance without sound.  During a powerful Paso Doble dance series, DiMarco performed 1/3 of a minute to this lively style of dance modeled after the drama and movement of the Spanish and Portuguese bullfight.  These few moments replicated the way DiMarco experiences dance; with no sound, yet high energy and passionate emotion.  His success on the show broke barriers and brought us one step closer to breaking the many misconceptions the deaf community faces on a daily basis.

Good Sex with Any Body – Dr. Sheypuk

 The way people with disabilities are viewed related to sex and intimacy is riddled with stereotypes and misconceptions of inadequacy.  Asexual. Not able to have sex. Not able to have good sex. Can’t be a wife. Can’t be a mother.  Can’t be a good mother. Weak. Infertile. Can’t be a good father[2].  All of these and more are inaccurate patterns of thought that challenge equality and make it an unfair playing field for individuals with disabilities.  Dr. Danielle Sheypuk is a Clinical Psychologist in New York City, who specializes in socialization and sexuality amongst individuals with physical disabilities. According to Sheypuk, “Societies misconceptions and inaccurate assumptions are the largest obstacles we face in this area with a disability, and let me tell you…it’s the size of Mount Everest.” There are hundreds of different disabilities and even more variations making each person completely different from one another.   Through her public appearances and private practice, Dr. Sheypuk is initiating a new trend of accepting that people with disabilities are in fact capable of having healthy, active, and mutually enjoyable intimate relationships.  Her work has caught the public’s eye, as she’s been interviewed and featured in Fox News, Elle Magazine, Daily Mail, The Guardian, and presented a Ted Talk.

Personal Thoughts – Don’t Assume, Just Ask!

 I have found that some of my relationships were more open and honest while others were closed off and full of assumptions, since my suitors varied in their previous experience with a person in a wheelchair.  The key to the most enjoyable of my experiences has been open and honest communication.  I always encouraged them to ask me any questions that may pop up rather than assuming there was anything we couldn’t do.  This same piece of advice goes beyond relationships and can also be used as a way of integrating individuals with disabilities into all societal activities.  This is the first step in eliminating misconceptions and combating stereotypes surrounding disability.

[1] Nyle DiMarco and Peta Murgatroyd, DWTS Season 22.  Retrieved from: http://www.dailymail.co.uk/tvshowbiz/article-3609242/Peta-Murgatroyd-celebrates-DWTS-win-Nyle-DiMarco-GMA-Erin-Andrews-let-pregnancy-news-slip.html

[2] Dr. Sheypuk TED Talk.  https://www.youtube.com/watch?v=7PwvGfs6Pok

He’s Got the Moves

By: Lisa Goodman

He’s got the moves!

Nyle DiMarco is without doubt a “triple threat.” His website even describes him as such,“Nyle DiMarco is an actor, model and spokesman.” No offense to whoever wrote his website, but they dropped the ball when they failed to include dancer, which makes him a quadruple threat. Currently, Nyle DiMarco is a contestant on Dancing with the Stars and he is a force to be reckoned with on the dance floor. DiMarco’s celebrity status, which landed him a spot on the show, is attributed to his acting career and winning season 22 of America’s Next Top Model.

Each week on Dancing with the Stars, Nyle dances his heart out without being able to hear anything. Nyle DiMarco was born deaf into a deaf family. He graduated from Gallaudet University with a degree in Mathematics. Gallaudet University is the only liberal arts university in the world for the Deaf. DiMarco is the second deaf contestant to be on Dancing with the Stars, the first was Marlee Matlin in season 6.

On April 18th Nyle DiMarco scored the first 10 while flawlessly dancing the Waltz with Sharna Burgess. Burgess is not his regular partner, Peta Murgatroyd is but this past week was “switch up week” and the regular partners were split up. DiMarco and Burgess brought fans to tears with their incredible performance. Tune in Mondays at 8pm ET on ABC. Between his dancing skills and undeniable good looks you will not regret it!!!

http://www.nyledimarco.com/about/

http://www.gallaudet.edu/news/nyle_dimarco_antm.html

http://www.people.com/people/package/article/0,,20981907_20995238,00.html

Summer Fun and Discrimination against Kids (with or without disabilities)!

By: Matthew Dietz

Unless the housing facility is a qualified 55 and over housing development, a housing provider cannot have rules that treat children differently, and less favorably than adults. When the US Congress amended the Fair Housing Act in 1988, it prohibited housing practices that discriminate on the basis of familial status.When it amended the Act, Congress recognized that “families with children are refused housing despite their ability to pay for it.” In addition, Congress cited a HUD survey that found 25% of all rental units exclude children and that 50% of all rental units have policies that restrict families with children in some way. The HUD survey also revealed that almost 20% of families with children were forced to live in less desirable housing because of restrictive policies. Congress recognized these problems and sought to remedy them by amending the Fair Housing Act to make families with children a protected class. So any rules, that do not have a legitimate safety justification, cannot indicate a “preference, limitation, or discrimination” against children under the age of 18. This includes rules that prohibit children from common areas in the facility with or without supervision, or limit the facilities of the housing development to adults. All rules must apply to children and adults equally, and cannot solely target children’s behavior.

If rules have a legitimate safety rationale, then such rules may be legitimate. But, again rules such as all children under sixteen must be supervised by an adult does not have a safety rationale, but a discriminatory basis against loud teenagers. On the other hand, a fifteen year old at a gym may injure him or herself on free weights without having supervision.

Summer camp must be inclusive

Over the past fifteen years, I have had several cases involving children who were not permitted to go to the summer camp of their choice, or were segregated in the summer camp because of the child’s disabilities. A summer camp, like any other public accommodation under the Americans with Disabilities Act, must provide reasonable accommodations for campers with disabilities, and must not segregate them from other students. Camps operated by governmental entities or colleges have a broader duty to accommodate campers with disabilities than some private entities that do
not have the same resources as a governmental entity. Examples of situations which I have encountered over the years are as follows:

• Children who are Deaf – Deaf kids have the right to a qualified sign language interpreter for all programs and services of a camp that involve communication that is long, complex, or important. Examples of this would be instructions on how to play a complicated game, story time, puppet shows, and educational instruction. If there are games that involve communication, then an interpreter would be appropriate so the Deaf child is included.
• Autistic kids – If a child who lives with autism has a one-on-one aide at school, for the same reasons, that child may need a one-on-one aide at a camp. Further, if a child needs further instruction in a game, or assistance with social interactions, that would be an accommodation that must be provided.
• Kids who have a medical condition such as Diabetes – If a child has a medical condition, or needs assistance with a medical condition, such as diabetes or HIV, then the question is whether the child poses a direct threat to his or her own health or the safety of others. If a child needs minor assistance with a medical condition, or can manage his or her own medical needs and monitoring, a camp cannot discriminate against these children.
• Kids with mobility impairments or other physical disabilities – Camps, like any other public accommodations, must have their facility accessible to children with disabilities. Older camps must do modifications that are readily achievable, easily accomplishable and able to be carried out without much difficulty or expense, and those camps altered or built after 1991 must be constructed accessibly. The camp is also responsible for making reasonable accommodations for campers with disabilities, which may involve some personal services, such as assistance in dressing, if similar services are available for able bodied campers.
• Kids with allergies – Kids who have allergies cannot be excluded from camps, and camps must be prepared to exclude certain allergens to accommodate a camper, and be trained in the event a camper has an allergic reaction. It would not be unreasonable to expect camp counselors to learn how to administer epinephrine auto-injector (“Epi-pen”) shots and dispense asthma medication, assist in administering Diastat for seizures in emergencies or otherwise teach camp counselors in basic first aid or CPR.

Parents can choose to send their child to a segregated camp, because some camps may provide special skills or advantages for children with disabilities, but the choice of going to a specialized camp is a choice, such as camps where all children are deaf.
However, all children may not be able to go to integrated camps. For example, there may be children with developmental disabilities or intellectual disabilities who would not be able to care for themselves at a sleep-away camp, and it would be a fundamental alteration of the camp’s programs to develop a program for one child’s disability. Further, if a child is dependent on mechanical supports, a camp would not be required to hire medical personnel to accommodate medically complex children. For these kids specialized camps are a phenomenal way to get out and enjoy the community. For example, Nicklaus Children’s hospital operates the VACC camp for technologically dependent children which includes swimming, field trips to local attractions,campsite entertainment, structured games, “free play”, to promote family growth and development while enhancing these kids’ self-esteem and social skills.

It’s so damn hot – my kid has asthma and needs an air conditioner

Last year, we represented a mother who had a child who lived in HUD-subsidized low-income housing. Asthma is often triggered by inhalation of air particles that contain allergens such as pollen, mold spores, dust mite droppings and animal dander. Air conditioners contain filters that collect and store these particles, keeping intake to minimum. Air conditioning also helps eliminate humidity on hot Florida nights which enables mold and algae to grow much more rapidly than it could if it were living in dry air. Some children and adults suffer from asthma to the degree that not having air conditioning may result in serious harm and hospitalization. Requesting to install an air conditioner unit in a home or apartment would be a reasonable accommodation for a person with a disability.

According to the Fair Housing Act, a tenant with a disability can request a reasonable modification. According to HUD Guidance, “A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas.” Under the Fair Housing Act, a housing provider must permit the modification, the tenant is responsible for paying the cost of the modification. If the housing provider is a public housing authority or a housing provider that receives federal financial assistance, the modification must be paid for by the housing provider unless providing the modification would be an undue financial and administrative burden.
Another example modifications can be a pool lift!

Discrimination in Pool Rules

• No inflatable flotation devices.
• Water wings, swimmies, floats, bathing suits rings, and other inflatable devices are not permitted in the pools.
• Absolutely no dogs allowed in pool area

Also, under the Fair Housing Act, persons with disabilities can ask for “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford … person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.” So when a person is required to use water wings, floats, special swimming devices, they can do so. In order to request an accommodation, the person needing an accommodation should ask the housing provider, and if the disability is not obvious, then the person may need to obtain verification from a doctor, therapist, or any other provider verifying the disability and need for the accommodation.

In addition, “no dogs allowed” rules do not apply to service or emotional support animals, where their presence is necessary for the person with a disability equal use and enjoyment of the premises. The Fair Housing Act and the ADA does not override public health rules that prohibit dogs in swimming pools. However, service animals must be allowed on the pool deck and in other areas where others are allowed to go.

Deaf Woman Denied Career Choice at Keiser University

Katy Daniel-Rivera 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. Keiser University has an enrollment of over 20,000 students and earns over 300 million dollars in revenue per year. Its main campus is in Fort Lauderdale, with fifteen additional branches located in other parts of Florida.

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.” Katy was crushed.

On January 7, 2016, National Association of the Deaf Law and Advocacy Center, and Miami-based Disability Independence Group filed suit on behalf of 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.

Katy Daniel-Rivera would like 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.

Are Doctors Required to Provide 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

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:

Humana

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.

Aetna

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.

Assurant Health

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.

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 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

ADA 25th Anniversary – The State of the Florida Bar and Courts

By Matthew W. Dietz

And today, America welcomes into the mainstream of life all of our fellow citizens with disabilities. We embrace you for your abilities and for your disabilities, for our similarities and indeed for our differences, for your past courage and your future dreams. Last year, we celebrated a victory of international freedom. Even the strongest person couldn’t scale the Berlin Wall to gain the elusive promise of independence that lay just beyond. And so, together we rejoiced when that barrier fell.
… 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.

Remarks of President George Bush at the Signing of the Americans with Disabilities Act, July 26, 1990.
Last month, Florida Supreme Court Chief Justice Jorge Labarga signed a proclamation honoring the 25th anniversary of the enactment of the Americans with Disabilities Act and designated July 2015 as a month of commemoration for the anniversary within Florida’s state courts system.
In 1990, the Americans with Disabilities Act was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Since 1990, many more persons with disabilities have entered into the legal profession, but equally as important, the Florida Bar has attempted to create an inclusive profession where more attorneys who have obtained a disability later in life or chose not to disclose their disability were able to stay in the profession and are able to obtain accommodations so as to focus on doing his or her job, rather than focusing on barriers that prevent such lawyers from doing their jobs.

In 2004, the Florida Bar recognized persons with disabilities as an element of diversity to be included in the definition of diversity and inclusiveness in the Florida Bar at the First Diversity Symposium. Then Bar President Miles McGrane was committed to increasing representation of and services to its members with disabilities in the Bar. From that symposium, the Bar, with the assistance of Disability Independence Group, engaged in a systematic process to survey and develop focus groups of lawyers with disabilities to identify all barriers – architectural, policy and attitudinal barriers – for persons with disabilities in the legal profession in Florida. Every Florida Bar president since President McGrane has renewed the Bar’s continuing dedication to the needs of lawyers with disabilities.
In his June 2006 passing of the gavel address, Chief Justice Lewis vowed to make architectural accessibility of the courts one of his top priorities and drew attention to this issue, declaring, “These artificial barriers must not be in place for Florida’s citizens.” This vow was carried out when each court facility was surveyed and a plan was developed to eliminate architectural barriers in our state courts. Thereafter, in 2010, the Florida Bar proposed, and the Supreme Court amended, Rule 2.540, Rules of Judicial Administration, to ensure that all participants of services of the courts receive accommodations to have an equal opportunity to participate in programs and services of the courts. This rule was precipitated by a lawyer with a hearing impairment who required an accommodation to represent his criminal defendants but could not receive an accommodation unless he paid for it himself. This rule transformed an ad hoc process to obtain accommodations into a specialized and formalized process to ensure that all participants with disabilities have full and equal participation in all programs and services of the court without additional cost or burden. Additionally, each court maintained and trained an ADA coordinator who would be able to address disability-related issues.
Further, the Court kept up with technological advancements. By 2009, electronic filing became the new rule. In 2012, e-fling was required to be ADA compliant, which means that persons who are visually impaired could have the same opportunities to read documents with screen reader programs on their computer as other lawyers. The Florida Supreme Court further found that a litigant with a visual impairment had the due process right to receive documents and information in a format that was accessible to that person.

First, the Due Process Clause of the Fourteenth Amendment and Sixth Amendment to the United States Constitution grant the Petitioner a clear legal right of access to the courts. See Tennessee v. Lane, 541 U.S. 509, 523, 529, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004). Second, the Fourth District has an indisputable legal duty to provide accommodations to the Petitioner. …. The substantive merit or lack of merit in the Petitioner’s underlying claim does not determine the ADA analysis. The Fourth District has refused to provide the Petitioner with an accommodation as mandated by the ADA and the Florida Rules of Judicial Administration. Third, the Petitioner has no remedy available other than to petition this Court for relief. Consequently, the Petitioner has satisfied the requirements for mandamus and we grant the mandamus petition as it pertains to Braille formatted documents.

Gabriele v. State, 99 So. 3d 943 (Fla. 2012).
While the mandate of the ADA has been implemented, it still has far to go before its mission has been accomplished. As our Bar both grows and ages, we need to ensure that the tools are available to ensure that the environment is inclusive for lawyers with disabilities and all barriers are eliminated to a successful practice. Twenty five years after the enactment of the Americans with Disabilities Act, persons with disabilities still face barriers to the legal profession and the legal system. We still have a long way to go.
1. Mental Illness
In February of 2014, the Department of Justice entered a settlement with the Supreme Court of Louisiana prohibiting it from requesting information regarding whether an applicant to the bar suffers from a mental illness, except if the information was related to conduct that would otherwise disqualify the applicant from becoming a lawyer. Notwithstanding the Department of Justice’s settlement with Louisiana, the Florida Board of Bar Examiners continues to use mental health questions and evaluations to screen and disqualify potential applicants with disabilities from becoming members of the bar.
For example, many members of the bar with a history of treated mental illness have “conditional” admission and are required to have their mental health provider report to the bar every quarter, and they must pay $75.00 per quarter for that privilege. Those lawyers have difficulty in finding jobs because of their “conditional admission” status. This self-appointed duty to screen for mental illness has a more dramatic effect on law students. I have spoken to many law students that have refused to receive mental health treatment for fear of being required to submit mental health records or of being subjected to “conditional admission” by the bar.

While this may seem Orwellian, this is the reality of what bar applicants face in the guise of protecting the public. However, there is no established correlation between merely having a mental illness – without any unlawful conduct, and the ability to practice. The Florida Board of Bar Examiners continues to demand disclosure of mental health history and records and screens all applicants for mental health status that is acceptable to them. According to an April Article in the ABA Student Lawyer, Shedding the Stigma of Mental Illness, depression rates for persons entering law school are at eight to nine percent, and then the depression rate skyrockets to twenty-seven percent after the first semester, thirty-four percent after two semesters, and forty percent after three years. Because of the stigma attached to mental illness, depression in lawyers is not often treated. Lawyers rank fifth in incidence of suicide by occupation, and one third of actively practicing lawyers suffer from depression, alcoholism, or both.
Focusing on actual dangers and conduct rather than stereotypical views relating to persons with treated mental illness is the essence of the mandate of the ADA. The existence of mental health eligibility screening by the Florida Board of Bar Examiners, and the imposition of differing standards of admission to lawyers with a mental disability is discrimination without evidence of need and is unlawful. If the Florida Bar attempted to screen existing members of the Bar for mental illness or treatment for mental illness, the ranks of the Bar would be decimated. However, the issue that is more of a threat are those persons who do suffer from mental illness, drug or alcohol addiction and do not receive assistance.

Instead of stigmatizing mental illness, we must work to ensure that lawyers and law students have access to mental health treatment as well as wellness programs to find methods in which to control depression and anxiety caused by the stressors that are part and parcel of our profession. Our Supreme Court must respond to the epidemic of mental illness by forming a committee with mental health professionals, lawyers who have mental disabilities, members of the bench, members of the Florida Board of Bar Examiners and the Florida Bar Board of Governors to develop appropriate questions to ensure that the public is protected from persons who demonstrate behavior that pose a safety to the public, to end stigma against lawyers and applicants to the bar with a history of mental illness, and to encourage psychological wellness and treatment for mental illness.

2. Ensuring that court accommodations are strictly administrative
Since the enactment of Rule 2.540, Florida Rules of Judicial Administration, there has been an unwritten exception to this rule, where the ADA coordinator, who is the administrator who provides accommodation, does not have the authority to control courtroom procedure. While the need for a sign language interpreter is not considered an alteration of courtroom procedure, appearing by telephone would be considered a change of courtroom procedure. For example, if a person is required, due to disability, to attend a court proceeding telephonically or videoconferencing, the attorney or party must file a written motion to the presiding judge as part of the case.
According to the Americans with Disabilities Act, an accommodation does not need to be provided if it is a fundamental alteration in the nature of the court’s program or activity. This would include an issue which would deny a criminal defendant the Constitutional right to confront his or her accusers. This should not include appearing by telephone for motion calendar or for an evidentiary hearing, or moving to a more accessible courthouse.

Of course, the danger is that, once the issue of disability is raised in litigation, it becomes subject to argument and evidentiary proof and becomes a corollary and distracting issue in the case. While the bench should work with the ADA coordinator to ensure that the burden to a court is minimized, the nature or extent of a disability and the court accommodation needed should not be subject to the rigors of the adversary process.

3. Ensuring that Courthouses remain accessible for persons with disabilities.

Crumbling courthouses have a greater effect on persons with disabilities than those who do not have disabilities. The Miami-Dade County Courthouse houses a total of forty-one judges and only twenty-three courtrooms with a total caseload of 192,000 cases, forcing delayed access to the judicial system. Judges have been forced to leave their chambers as mold is discovered growing behind walls causing an unprecedented amount of illness. Water intrusion has ruined court files and has made it necessary for employees to wear boots and masks when working on lower floors. The probate division in Miami moved to a different facility to avoid further carbon dioxide exposure.
While this has an effect on the timeliness of hearings for lawyers and litigants without disabilities, it creates untenable work situations for those with breathing difficulties, mobility disabilities and other disabilities who are not able to use court facilities.

4. Ensuring that all rules do not discriminate against persons with disabilities
When the Court ensured that electronic documents are accessible to persons with disabilities in Rule 2.526, Rules of Judicial Administration, it implemented a rule that required court documents to be in compliance with state and federal accessibility requirements. However, when reviewing all policies and procedures, the Bar and the courts should always be aware of the needs of lawyers and litigants with disabilities. For example, in March, the Supreme Court approved the amendments to the Florida Rules for Certification & Regulation of Spoken Language Court Interpreters. However, by limiting the rule to “Spoken Language” court interpreters, it allows courts to obtain sign language interpreters that are not certified.
Lack of qualified interpreters for the deaf community has been a long-standing problem for access to the courts for the deaf. Approximately twenty percent of my current caseload are claims by the deaf who cannot obtain interpreters for medical treatment, employment, or governmental services. Many lawyers also refuse to provide interpreters for prospective deaf clients. The one place where the lack of effective communication access should not be an issue is the courts. While there are currently very few certified interpreters that are qualified to interpret in a legal situation, the failure to require such a certification provides no incentive for interpreters to increase their skills to meet the needs of the deaf community and the courts.
Conclusion
Persons with disabilities should not be “inspiring” or be required to “overcome” their disability to be a member of the Florida Bar. No other population needs to proffer its superstars to become eligible to be a lawyer. The ADA’s intent was to open the door and create a level playing field so anyone who has the intellectual ability and required ethical standards to be able to practice law should be able to do so. As a profession, we need to examine our practice, our rules, and our profession to remove attitudinal barriers and accept each other as equals.

Are Deaf Women entitled to Reproductive Choice?

Disability Independence Group files suit against Planned Parenthood for failing to provide sign language interpreters or programs for Deaf Girls and Women

On August 2, 2013, Maura Mena went into a Planned Parenthood location in Miami, Florida.   As a pregnant woman, Maura did not know what her options were at that point and was not sure what she wanted to do. She thought of an abortion. On August 1, 2013, Maura’s boyfriend suggested Planned Parenthood.  Since Maura did not have a phone, he made the call for her and set up a time for the very next day. It was clear that the boyfriend was in a rush to have the procedure done as soon as possible.  Maura did not hear the call.  She is deaf.

Like most of Maura’s relationships, her boyfriend did not understand American Sign Language and communicated through basic signs and pantomime. As a result of the relationship between Maura and a hearing man, he assumed dominance in all interactions between Maura and others who could hear and understand English.  She asked him to make sure that they provided her with an interpreter, but Planned Parenthood advised him that she would need to bring a “translator” with her at the time of the appointment.

On the morning of August 2, Maura arrived first at the Planned Parenthood location in Miami, and her boyfriend arrived late. When Maura arrived for her procedure, she asked her boyfriend, “Where is the interpreter?”  Maura was upset and argued with her boyfriend in sign language and in front of the staff about how she needed and wanted an interpreter.  Her boyfriend told her to be quiet, as it would cost them more money if she was going to postpone the abortion, and as she was homeless, she did not have any more money to spend.  Maura started to cry.

Usually, when a hearing woman goes to a Planned Parenthood, the staff ensures that the woman is not a victim of domestic violence.  Because they could not speak to her, that was not done. Only the boyfriend spoke with the doctor and could not and did not interpret what the doctor told him to tell to Maura. She did not receive information about the abortion procedure, the parental counseling or other procedures conducted by Planned Parenthood.

Maura was provided forms on an electronic tablet to sign.  In all forms, Planned Parenthood referred to Maura as “MAURA (FULLY DEAF) MENA”, as if “FULLY DEAF” was part of her name given to her by her parents.  The forms were not translated to American Sign Language, and Maura was asked to sign them to get the procedure.

At no time in the medical record does it indicate that Maura’s boyfriend was present during the intimate partner violence screening, the abortion procedure, the parental counseling or other procedures conducted by Planned Parenthood.

Even though they insisted that she bring someone to translate for her, they tried to communicate with her by both “lip-reading” and writing notes.

Only about 30% of English speech sounds appear as lip movements. The majority of English speech sounds emanate from tongue, throat, breath, and other physiological functions invisible on the lips. Thus, approximately 70% of speechreading involves guesswork apart from the “data” gathered from watching lip movements.  Because she is not fluent in English and does not have the ability to do this guesswork, Maura was able to answer only the most basic questions and understand only a fraction of any information provided to her.

As for notes, the first communication was when the receptionist wrote down the price of the procedure and asked if she could pay.  The second was during a point in the procedure when Maura’s boyfriend left the room, leaving Maura alone with the doctor. The doctor displayed a series of pamphlets in the examination room, none of which Maura understood, and then wrote down on a piece of paper, “NEXT TIME USE A CONDOM.”

Maura received the medications for the medical abortion but did not understand how to use the medication.  She did not know how much or in what order she was supposed to take the medication. Maura was told to come back on August 16, 2014.  After that appointment, she was still in pain and cramping and did not know what was occurring, and she was not provided an adequate understanding of what was happening. On August 20, 2013, because she did not believe she was permitted an interpreter at Planned Parenthood, Maura went to the Emergency Department of Hialeah Hospital because she was experiencing vaginal bleeding.

After the abortion, Maura continuously cried.  She did not know what alternatives she had other than to have the abortion, and she wanted to have more children.  A year later, Maura gave birth to a baby boy.

Deaf Women and Girls Have the Rights to be Given the Same Information and Education as Hearing Women and Girls.

Planned Parenthood Federation of America (PPFA) and its affiliates are the nation’s largest reproductive health care provider, with more than 700 health centers across the country.  PPFA and its affiliates serve more than three million people per year and provide sex education training to over one million young people per year. To provide this education and training, PPFA and their affiliates receive over 300 million dollars of federal funding per year.  Persons with disabilities have unique needs, and PPFA should recognize this and modify their practice so that they provide the same services to persons with disabilities as other “able-bodied” women.

According to PPFA publications, women with physical disabilities are at a great risk of being victims of intimate partner violence (IPV).  Women with disabilities experience almost twice the rate of all forms of abuse compared to women without disabilities.  In fact, studies have shown that 83% of women with disabilities are sexually assaulted at some point in their lives. The IPV risk factors potentially associated with different disabilities (e.g., blindness, spinal cord injury, cognitive impairment, or deafness) are different in consideration of the barriers they may (or may not) present to self-defense, judgment, mobility-related safety, and access to IPV services or preventive educational initiatives. Deaf women, like Maura Mena, are often subject to communication control as a form of IPV, including when perpetrators had greater speech abilities.

In recognition of the prevalence of IPV, PPFA and all of its affiliates, have adopted a policy where, for each visit, each medical center provides intimate partner violence (IPV) screening. It is standard practice that screening for IPV should be confidential, direct, and non-judgmental. Screening should be done on a routine basis as part of the medical intake. For clients with limited English proficiency, trained interpreters should be used; the use of family or friends as interpreters should be avoided if at all possible.  IPV screening must be done in absolute privacy to reduce the danger that the patient’s partner will learn of the disclosure and retaliate. Such IPV screening is to ensure that the woman is not in a position of coercion, and the choices with regards to reproductive choice are her choices, and not that of a parent, partner or caregiver.

In order to ensure a woman’s choice, privacy, and the absence of coercion, PPFA and their affiliates use Language Line when an in-person staff member does not speak a patient’s verbal language.  Language Line provides on-demand interpreters in any spoken language. PPFA and their affiliates, should, at a minimum, utilize Video Remote Interpreting or any other device to communicate with deaf women to determine whether their choice of waiving an interpreter is voluntary and their privacy is secured.  Further, states like Florida have heightened consent requirements, which require providers to ensure that effective communication is provided to convey what is statutorily required to present.

Through Maura’s story it is clear that the issue of IPV, as well as sexually predatory actions by men or women who are deaf, spread from the absolute lack of any sexual education in American Sign Language.  As parents do not communicate in ASL, schools do not teach sex ed, and television or other media is not in ASL, there is no background or context in which to discuss sex or reproductive health.  As a result, deaf women are often victims.

Education for Deaf Girls and Women

Maura was born deaf and grew up in South Florida with divorced parents, neither of whom were deaf or communicated in sign language.  Similar to many deaf children of hearing adults, Maura received no sex education from her parents or school, nor any education regarding her rights to have access to information. Maura did not begin her education until she was seven years old and later attended high school at South West Miami Senior High School.  She spoke primarily ASL and graduated with a fourth grade written English ability, which is not uncommon, as ASL is Maura’s primary language. She had her first child when she was 20 years old in 1996, while in a long term relationship.  Maura gave birth at Baptist Hospital, and her cousin was in the delivery room with her and interpreted for her. Four years later, Maura had two surgical abortions in North Miami.  She did not have interpreters at either of these abortions and did not know the risks, alternatives, or health effects of these abortions.  Subsequent to the abortions, she could not walk and had severe fever and bleeding for several days. At the time, she lived with her mother, who disapproved of the procedure and criticized and belittled her while she was in pain.  Her mother stood by while Maura on both occasions stayed at home until the adverse effects of the abortion subsided.

Planned Parenthood provides information for those who can hear and those who can read English and Spanish, but not for those women who are deaf, and who are in need of such information because of the lack of any other outlet to receive this information.  When women have this information, they have the power to control their own bodies and their own choices.  Deaf women are entitled to this power as well.

Remedial Actions:

DIG’s goal in this action is to ensure that deaf women receive the same services and information as any hearing person who goes to any PPFA affiliate, which includes, but is not limited to:

• The right to make independent decisions regarding reproductive care or treatment without pressure or coercion from a non-disabled partner;
• The right to ask questions and receive information in American Sign Language;
• The right to learn about alternatives to terminating the pregnancy and entities available who can help her with her pregnancy and her children;
• The right to learn about the availability of medical assistance benefits for prenatal care, childbirth, and neonatal care;
• The right to understand the medical procedure, the medications that are being administered, and other emotional and medical issues involved in obtaining an abortion;
• The right to have printed or electronic information converted into ASL for the Deaf;
• The right to understand her contraception choices, and be able to discuss her issues with contraception and the types of contraception she used in the past; and
• The right to be  treated with dignity, and not be relegated to a label, instead of a name.

The message needs to dramatically change that women who are deaf or have other disabilities have the right to reproductive education and care for their needs.

Complaint

Exhibit A,  Exhibit B, Exhibit C