Deaf Inmates Will Receive Services in Miami-Dade Jails

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Disability Independence Group and Disability Rights Florida Resolve Lawsuit against Miami Dade Department of Corrections and Rehabilitation to Provide Services to Deaf Inmates

Miami FL, October 19th, 2016, Disability Independence Group, a jailcellnon-profit organization that advocates for the rights of people with disabilities, and Disability Rights Florida, Florida’s federally-funded Protection and Advocacy organization, have resolved a lawsuit concerning Miami-Dade County Department of Corrections and Rehabilitation (Miami-Dade County) over its systemic failure to comply with federal measures intended to protect individuals with disabilities processed and incarcerated at their locations throughout the County. Upon filing the case, Miami-Dade County endeavored to resolve the matter to ensure that deaf inmates do not suffer from discrimination in the jails.

The case came about because of the experiences of numerous individuals who are Deaf who have faced discrimination in Miami-Dade County jails.  The Complaint recounts the ordeals of two individuals who are Deaf who have suffered directly from Miami-Dade County’s failure to comply with the federal laws intended to protect such individuals.  As a result of non-compliance with disability rights laws, Deaf prisoners are not provided adequate access to communication with their family and lawyers, adequate medical services, and may be assaulted and victimized without recourse.  This follows a nationwide trend as several disability rights groups have filed similar lawsuits.

Joel Martos is a profoundly Deaf individual who communicates primarily using American Sign Language (ASL) which is his native language.  He relies on ASL interpreters and other auxiliary aids to communicate with individuals who do not use sign language.  Throughout a period of more than three years of incarceration, Miami-Dade County failed to provide Mr. Martos with even the most basic communication accommodations.  He was denied accommodations beginning at intake, underwent medical tests and psychological examinations without any communication and was denied other programs in the jail.  Because Mr. Martos was unable to communicate, he had no understanding of programs available or conditions of probation and had no meaningful contact with family, friends or lawyers.

Joshua Santuche is a profoundly Deaf individual who also communicates using ASL.  Mr. Santuche was arrested in October 2015 and was not provided with an interpreter upon arrival at Miami-Dade County jail.  Mr. Santuche attempted to communicate with officers through hand gestures that he was Deaf and needed an interpreter, but was ignored by some officers and ridiculed by others. At no point was Mr. Santuche provided with a videophone or any other means of communication to contact an attorney, a bail bondsman, or his family.  At his bond hearing, no ASL interpreter was provided.  Had Mr. Santuche’s mother not been available and present at the hearing to interpret for him using what she refers to as “survival sign language”, Mr. Santuche would have remained incarcerated.  At the majority of subsequent hearings at the Miami-Dade County Courthouse, no ASL interpreter had been provided despite Miami-Dade County having ample knowledge and time to secure one.

“This settlement ensures that Deaf inmates will be treated fairly.  Like hearing inmates, Deaf inmates will be able to communicate with their lawyers and families, not be subject to discipline or medical examinations without a full understanding, and will not be victimized by other inmates.” said Matthew W. Dietz, Litigation Director of Disability Independence Group, “Without communication, a Deaf inmate is required to become invisible, to avoid confrontation, to avoid medical need, to avoid rehabilitative services, to avoid recreational services, and wait endlessly in isolation for the incarceration to end.”

“As Florida’s Protection and Advocacy organization, we have a responsibility to ensure that the rights and dignity of individuals with disabilities are being respected,” said Molly J. Paris, Staff Attorney at Disability Rights Florida. “The law requires that individuals who are Deaf are properly accommodated and are afforded the opportunity to communicate so that instances of unnecessary incarceration or re-incarceration are avoided.”

dadecountyjail_pretrial_detention_centerThe Settlement requires Miami-Dade to timely provide qualified interpreters for all programs and services of the jails, including: booking, intake process, at classification hearings, medical or psychological treatment, disciplinary hearings, religious services, educational classes, Narcotics and Alcoholics Anonymous meetings or the equivalent, and interactions with staff that implicate an inmates’ due process rights.  It also provides access to and use of video relay phones and TTYs (communication device that allows the typing of messages), and repairs and replacement batteries for hearing aids and cochlear processors.  The county employees will receive training regarding the needs of and effective communication with the Deaf, and procedures for identifying and providing accommodations to Deaf inmates.

The Plaintiffs are represented by attorneys Matthew Dietz from Disability Independence Group and David A. Boyer and Molly J. Paris from Disability Rights Florida.

For more copies of the Complaint and the Settlement Agreement, please click the links.

Disability Rights Florida was founded in 1977 as the statewide designated protection and advocacy system for individuals with disabilities in the State of Florida. It has been advocating for access to services, education, employment, independence, and the elimination of abuse and neglect for over 35 years.

 Disability Independence Group is a 501(c)(3) non-profit organization that promotes recruitment, education and employment of persons with disabilities thereby improving their lives through competitive employment and financial stability; and through the changing of society’s perception of person with disabilities.  

Deaf Woman Denied Career Choice at Keiser University

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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 new student orientationcounselor 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?

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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

a doctor's officeAt 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

A note from Matt….

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By: Matthew Dietz

According to the United Nations Convention on the Rights of Matt standing next to a giant blow up dog with the dog's paw touching Matt's head.Persons with Disabilities, the right for education for persons with disabilities are essential to the development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity.  Today, there should be no limits.  This month, DIG has filed an action to strengthen sexual and reproductive education for the Deaf, provide effective technologies and, the use of alternate therapies to encourage participation in society.

Deaf Mom-to-be gives Birth in the Wrong Hospital?

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“Hello this is Byron, Cheylla needs your help…”

As a lawyer practicing civil law, you rarely receive a cry for help at 8:45 in the evening from a client. I knew that it was happening again – another client who is Deaf that could not get an interpreter for medical care.

I represent Cheylla Silva in a case against South Miami Hospital that was the subject of an August 30, 2014 Miami Herald article  We ensured – guaranteed – that Cheylla was going to receive a sign language interpreter when she gave birth at South Miami Hospital after her high risk pregnancy, so she would have the ability to understand the doctors and nurses. She would not be forced to contort her body to use a remote interpreter on a monitor that rarely works or pass notes during contractions.

However, it seems the best plans often go astray, especially when a baby was not clued into the fact that there are court cases and agreements and guaranties! The baby decided to come early, and Cheylla was bleeding. The ambulance was called and insisted on bringing her to the closest hospital, Kendall Regional Medical Center. Cheylla and her boyfriend, Byron, pled for an interpreter to every person in the hospital. The nurse asked Byron, if he could be the interpreter, and he said “no, I’m hard of hearing” so they provided the number for an interpreting service, Accessible Communication for the Deaf (ACD).

There was no communication with Cheylla or Byron until Cheylla’s younger brother, who knows a little sign language, arrived at the hospital and asked the nurse about the interpreter and was told but it would take them at least 24 hours to obtain an interpreter. Cheylla was furious. She was bleeding and having contractions, she did not know what was happening or going to happen. Her baby was just not ready. She did not know if she or her baby were going to live. She did not have 24 hours to wait to understand what was happening to her. Byron texted ACD and asked for help. Byron emailed me and pled for help.

At the same time, the head nurse tried, but could not get the video remote interpreter to work and instead, used the interpreter’s number – that Cheylla provided – to get assistance to get the video remote interpreter to work. Thereafter, Lisa Campbell from ACD called me and discussed Cheylla’s needs.

Cheylla has a right to an interpreter when giving birth. She should not be worrying about communication more than the directions that she needed, the pain she was feeling and the questions about her health, the baby’s health that she and her boyfriend would have. There are some basic tenets of care during labor that demand basic reassurances and comfort during this time. There was no other option than for ACD to provide interpreters without promise of payment. Lisa was 45 minutes away, but another ACD interpreter, Brenda Adkinson, was only 15 minutes away, and immediately went to Kendall Regional Medical Center. Brenda stayed until 5:30 the following morning, and then Lisa took over and was there when baby Zoey was born at 8:15a.m.. Interpreters then continued to be provided during her hospitalization.

Picture of Baby Zoey in incubator

Baby Zoey

Baby Zoey was born at four pounds, five ounces, and is a beautiful and healthy baby. Cheylla and Byron are doing fine.

The staff at the maternity ward knew about the article in the Herald about Cheylla, but they could not understand the importance of it since no one else has ever complained. They insisted that they called the HCA Language Line and they said they would get an interpreter in 24 hours. While she was there, ACD Interpreter Brenda Adkinson took the time to educate them:

So I then explained to them that is a misuse of VRI. It is only to be used in a reception desk environment. I said, “can you imagine being hospitalized and having to sit up to communicate? If the patient is in labor, who is going to hold the whole computer system up above the patient’s head to see it? What if Wi-Fi drops? What if you need to call tech support? Will the baby wait until tech support arrives?

A live interpreter guarantees you are able to provide best care to your patient. It is a federal law. It doesn’t come out of your pocket, let the hospital pay, why stress yourself out?

When management of the hospital were made aware of the situation, they immediately agreed to pay for the interpreter fees and agreed that VRI should only be used as an interim measure until a live interpreter arrives.

However, the denial of effective communication for the deaf is systemic. Doctors and hospitals know their duties to communicate with their patients, and many hospitals and doctors continue to ignore this duty, and even refuse to see patients. A lawyer should not be needed in the delivery room!

Byron Mena and Cheylla Silva with newborn baby Zoey

Byron Mena and Cheylla Silva with newborn baby Zoey