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

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

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

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

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

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

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.  

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

The View from a DIG Intern

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Tiffany Blackmon

Intern Tiffany Blackmon

As a law student interning with DIG, I spoke with a client recently and I was frustrated to learn that there are attorneys who disregard their duty to communicate with clients who are deaf. When someone is already in a difficult situation, it’s hard to believe that a lawyer would make the situation even worse, by refusing to provide an interpreter for a family member that needed one. Although I realize that some lawyers would have a difficult time paying for interpreters, most lawyers should be able to afford to pay for an interpreter for the clients that need them.
It is a basic tenet of professional responsibility that Lawyers have an ethical duty to communicate with their clients, and most lawyers try to fulfill that duty. There are unique challenges when trying to communicate effectively with a client is deaf. However, it’s still that lawyer’s responsibility to handle those challenges.
If a lawyer refuses to provide a qualified interpreter, it forces the deaf client to make a difficult choice. If he or she files a complaint against the attorney, to require them to provide an interpreter, the attorney may no longer be pleasant to work with. If you want to work with them despite their refusal, and do not file a complaint, the client is left paying for the interpreter yourself. This is a situation that seems very unfair because the client is paying more money for the same service that hearing clients are receiving.
When you’re calling a lawyer, it’s usually because you need help with a legal issue you’re having. You’re likely already in a difficult place in your life, and in need of legal advice or assistance. For an attorney to be able to help you, you need to be able to communicate with them, so they can get all the information they need to help you, and so you can understand the process, and ask any questions you have. I know that most lawyers are willing to fulfill their duty to communicate, and will provide a qualified interpreter when one is needed. For the attorneys who are unwilling, I hope that they become better educated on their duty to communicate with all clients, including those who are deaf. In South Florida, there are many sign language interpreters who are available to assist, and with the technology that exists now, which allows you to communicate with an individual who is deaf through a sign language interpreter via the video relay phone service, or in person through video relay interpreting with a webcam on your workstation, there is no reason for any deaf person to not have the equal opportunity to effectively communicate with their attorney.