December 10, 2019
♪ Music ♪ Welcome to our Ask the Expert video series. I’m Colleen Miller. I’m the director of the disAbility Law Center of Virginia. The disAbility Law Center of Virginia is the Commonwealth’s designated protection and advocacy system. We are here to promote and protect the rights of people with disabilities throughout the Commonwealth. One of the ways we do that is through education and outreach about disability rights issues. So, this is your chance to Ask the Expert. Let’s ask the expert about effective communication. Thank you so much for setting up this meeting today. We’ve been getting a lot of calls lately from people who are deaf or hard of hearing who are not receiving effective communication when they go to appointments. I was told that you had some questions and hopefully I have some answers. Can you give me an example of some of the calls you have been getting? I’ll give you one we get fairly frequently. Someone who is deaf has gone to make a doctor’s appointment, and the doctor’s office says that they have to bring their own interpreter. That doesn’t sound right! No that isn’t right at all. The Americans with Disabilities Act, or the ADA, requires that a person be provided with effective communication. Now that does not always require an ASL or American Sign Language interpreter, but it does require effective communication. For example, do you remember Joanie who used to work here? Oh, sure! You may recall she never used a sign language interpreter. That’s right, she lip read around the office during the week for routine communication, she wrote when it was important or legal, and when we had staff meetings, there was someone who transcribed the conversation into the computer. If she could lip read, then why would she have the transcriber? That’s called real-time captioning, and real-time captioning is considered an auxiliary aid or service under the ADA. Joanie couldn’t see everybody’s mouth at the staff meeting, and sometimes, more than one person was talking. With more formal settings, she preferred to have the accommodation, even if she didn’t need it in everyday conversation. So, you’re saying an interpreter is not always the required accommodation? That’s correct, what’s required is that the person be provided communication that is effective for them. So what do we tell the client who demands an interpreter? Well, some people can only communicate effectively with a sign language interpreter. Others might use real-time captioning like, Joanie and other people use what’s called a qualified note taker, written materials, and there are other accommodations that might be considered effective given individual circumstances. Well, I have a question. I’ve heard that American Sign Language is not actually based on written English. I thought you just spelled out the words. Spelling out the words is called finger spelling and that is a part of sign language. You need to think of ASL as a foreign language. It’s just as complicated and a sign might mean a letter, it might mean a word, it might stand in for a whole sentence. Again, it comes down to what’s effective for that person in the situation that they’re in based on the nature, length, complexity, and context of the appointment. So, in a doctor’s officewhere other questions about medical history and treatment planning, it gets pretty complicated. Exactly. A doctor’s office is a specific example where if requested, an ASL interpreter is generally the only effective form of communication. A doctor’s office is encouraged to give primary consideration to the choice requested by the patient. But why wouldn’t a family member like a parent or child be acceptable if they can sign? They they can be if that’s what the client wants. But, if that’s not what the client wants, there’s three pretty good reasons that a doctor can’t require the companion to interpret for the patient. First reason is the companion is probably not trained in the specialized vocabulary of a medical office. Secondly, they’re not always impartial. They may put a spin on the news and not give the patient information correctly; and the third reason, which is probably the most important is it’s a violation of the patient’s privacy rights. If the patient is required to bring a friend or family member into medical appointment, communications there are always personal and private. The law puts the burden on the medical office to provide the interpreter for all of these reasons. So, what do we tell the caller? Well first, they should ensure that they have told the medical provider that they need a certain type of accommodation. If they need an American Sign Language interpreter, they have to make that request in advance. I usually recommend they request the accommodations at the same time make the appointment. Then, I usually suggest they call about a week or at least a few days before the appointment to confirm that the accommodations are in place. If they show up the accommodations isn’t provided, they can cancel the appointment with no penalty. And if there’s still no accommodation provided? Tell them to call us back we have other resources that we can provide. We can give them information about how to file a complaint with the Department of Justice, and there’s a lot of information available on the ADA website. Is that the same requirement for everywhere? What about a restaurant or a movie? What about a play? Well, first, there is a difference between services that are provided by the state or local government and other places of public accommodation. What do you mean by state and local government services? Like the courthouse? What about all the county offices? Those are great examples, but it could also be a city park event, something happening at a public library. That doesn’t seem reasonable. How could those places always have an interpreter standing around? That’s a good point. Most places can’t and don’t and really they are required to. If you’re dealing with a government entity, and a person requires an accommodation, the government is required to give primary consideration to the choice of the individual person requesting the services. The city, county, or state have to give the choice that the person requests unless there’s a significant burden the government should have alternatives available like a video phone or a TTY device for people who are deaf to use. Well, we use a telecommunication relay service to communicate with our deaf clients. They just called 711, but who can keep up with all this technology? Well, the Virginia Department for Deaf and Hard of Hearing can tell government agencies what they need to have. But what if it’s not a government agency? What if it’s a regular theater or store? Most businesses are required to have every form of communication available on standby at all times; but, it might be reasonable to expect a large Hospital to know that they may have to serve a patient who is deaf or hard of hearing at any time and have some sort of system in place. Movie theaters should have captioned options for patrons who require them, but for the most part, a customer should request accommodations ahead of time and confirm they will be provided before showing up at a non-government business. Places of public accommodation under Title III of the ADA are required to provide effective communication, but a lot of businesses haven’t necessarily dealt with someone who is deaf or hard of hearing, and they need instructions from the visitor to know what form of communication will be effective and what will work for them. Can one of you help me? I have a woman on the phone and she says her husband was stopped and arrested by the police for driving under the influence; but she says he wasn’t drunk at all. He was just swerving a bit. He can’t speak at all, and because he’s deaf , he couldn’t understand the police, so they just pulled him out of the car and took him to jail. She’s on the phone right now. Can you put the call through to this phone, please? You got it. Her name is Veronica Vaughn and just calling about her husband Billy. Thank You. (Phone rings) Hello? Hello Hi, Ms. Vaughn, I have you on speakerphone, and there arre two advocates with me taking notes. Is that okay? Yes, that’s fine, but my husband, he’s with police. Okay, I’m very sorry about your situation. First thing I need to emphasize is that we do not practice criminal law here. We will not be able to represent Billy in any of these criminal proceedings. Do understand that? Okay, we have someone that we can call about that. Okay, good. Um, we can tell you about some of your husband’s issues. Billy. He’s at the police station. Okay, what sort of problems is Billy having with his communication and his rights? Well, he needs an interpreter to talk to anyone, but they won’t let me back there with him. OK. First advise the police that Billy only uses ASL and that none of the other forms of communication that they may try to use will be effective. So, he needs to be provided with an ASL interpreter before he’s read his rights or any other procedures are explained to him. Before he signs any papers, he needs to be provided an ASL interpreter, okay? Okay. Any sort of instructions, anything he’s told to do, any directions he’s told to follow, again, he needs to be provided an interpreter before those instructions are provided by the police. Okay. And you’re sure there’s no other form of communication that’s effective for Billy not any sort of phone or writing at all? No, he only understands ASL Okay. It’s important that you emphasize that to the police because they may be familiar with other methods that they’ve used before, so it’s really essential that you demand that an ASL interpreter be provided for Billy. Okay. I’m going to go in now and explain that he needs an ASL interpreter or he’ll never understand. Okay. Please call us back if the police refuse to provide an interpreter. Again, we cannot help you with the criminal law aspects of the case, but we can try to ensure that the proper accommodations are provided. Okay. Okay, I gotta go. Thank you! Okay, thanks and please do callback. Okay. That’s so unfair! He doesn’t have a chance. Well, it isn’t always right, but we get calls like this sometimes. I read that the police have some discretion to ensure public safety, and they can remove the individual from the road before providing a reasonable accommodation. A lot of people who are deaf or hard of hearing carry a card that explains that they are deaf and the accommodations that they need, and we recommend that people present this card to the police officer when they give them their other information, such as their driver’s license. And sometimes people are handcuffed, and the police put their hands behind their backs, so they’re allowed to request their hands be put in front of them so they can communicate. Other people may need to ask the officer to stand in front of them in plain view so they can lip read, and other still may want to use note taking or pass notes. Again, what works for one person may not work for someone else, and not everybody uses ASL. What if he goes to jail? Even in jail, he’s entitled to effective communication. When he’s given instructions or information about meals, rules, anything that happens in the jail, how to access his attorney. If a phone is available, they need to make sure there is a phone is available that you can use, and in Billiy’s case, we’ve already established he can’t use a phone, so he would need to have an ASL interpreter. Any service provided to anyone in jail has to be made accessible for someone who needs accommodations. Ms. Vaughn called back. Billy is at the jail but, they have called for an interpreter. They should just release him! Actually, they should just treat him the same as they would anyone else pulled over for erratic driving. As long as they provid him effective communication with the police, the courts, and his attorney, then they’ve met their burden. I guess that makes sense, but I think I’ll follow up with Ms. Vaughn next week to see how everything went. What don’t you suggest that she has Billy give us a call if he needs any further help? Got it. Thank You! So, now we have all the answers. Not me, I think I havemore questions than when we started Understandable. It’s actually good that we don’t think we have all the answers. Every person is different, every situation in case is unique. What works for one person may not be right for someone else, so we don’t ever want to assume and start providing information until we know what someone needs. And we have to ask a lot of questions, and when in doubt about the rights of an individual to effective communication, ask the expert! If you would like to discuss your disability rights issue, please call the disAbility Law Center of Virginia our intake hours are Monday, Wednesday, and Friday from 8:30 to 4:00pm. You can call us at 1-800-552-3962 or you can email us at [email protected] Thanks for watching! This video contains general information for educational purposes. This should not be considered legal advice. It is not a comprehensive statement of the law and may not reflect more recent legal developments. If you have specific questions concerning any matter contained in this video or if you need legal advice, please consult with an attorney.