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

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

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

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

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

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

Deaf Inmates Will Receive Services in Miami-Dade Jails

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 non-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.”

The 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.  

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

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

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

“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.

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

Domestic Violence and the Deaf

By: Sharon Langer

 

The deaf and hard of hearing world is unique because of the difficulty in communicating with others. The world of the victim of domestic violence is also one of isolation and lack of access to the outside world. A batterer typically isolates their victim to instill dependency. When you combine both realities, it is easy to understand why a deaf victim takes up to seven times longer to leave his or her abuser than it would for a hearing victim.

Deaf victims must also struggle with the decision to use the systems and services that even hearing victims find almost im

possible to navigate. There are so many questions that must be addressed: where will I live if I seek a restraining order? What will happen if I go to a shelter? Will someone be able to communicate with me? What will happen to my children? Will I be treated equally if my abuser is a hearing person? Because most folks are unfamiliar with the deaf culture,the victim sometimes has to spend

his or her time educating the providers on the communication and cultural differences of the deaf community rather than being

the recipient of support and services.

The National Association for the Deaf published an article in 2007 titled “Domestic Violence: we can’t ignore it anymore.” It explored why deaf women suffer a greater risk of domestic violence. They

(who?) found that while there has been a lot powerful advocacy work on other issues, the issue of domestic violence and sexual assault have largely been overlooked or misunderstood in the deaf

community. Deaf survivors are unable to seek help from either the hearing or the deaf community. This is largely caused by misconceptions, putting blame on the survivor and the code of silence that still exists in the deaf community.

Now that I have raised the issue… What do we do? We need a two-

prong approach that addresses both outreach and education. We have begun that effort with a committed group of folks who are creating a training for deaf high schoolers in Dade public schools,

and we have begun a dialogue with the provider community and the courts. We will keep you posted on our efforts. If you are

interested in the effort email me…sharon@justdigit.org