Disclaimer Opinions Expressed Herein or Otherwise are those of the - - PDF document

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Steven E. Gordon Assistant United States Attorney Civil Rights Enforcement Coordinator USAO Eastern District of Virginia

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Disclaimer

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Opinions Expressed Herein or Otherwise are those

• f the Speaker and do not Necessarily Reflect the

Views of the United States Department of Justice.

Overview

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1. Background on the ADA. 2. Entities covered by Title II and Title III of the ADA. 3. Requirements common to Title II and Title III entities. 4. Unique requirements for Title II entities. 5. Discussion related to specific types of entities that are required to furnish auxiliary aids and services.

• 6. Ignorance is not a valid defense.

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Most Important ADA Resource: ADA.gov

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Excellent Technical Assistance Publication on ADA.gov: “Effective Communication”

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Congressional Findings Supporting Passage of ADA

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When the ADA was passed in 1990, Congress found, among other things: “[D]iscrimination against individuals with disabilities persists in such critical areas as . . . education . . . health services . . . and access to public services.” 42 U.S.C. § 12101

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Federal Government Statistics

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 The Census Bureau reports that approximately 56.7 million people living in the US had some kind of disability in 2010.  The National Institute on Deafness and Other Communication Disorders (NIDCD) reports that one in eight people in the United States (13 percent, or 30 million) aged 12 or older has hearing loss in both ears, based on standard hearing examinations.  NIDCD reports that approximately 7.5 million people in the United States have trouble using their voices.  According to the Census Bureau, approximately 7.3 million individuals in the United States report significant vision loss.

Definition of Disability

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 A physical or mental impairment that substantially limits one or more major life activities (e.g., hearing, speaking, and seeing).  A record of such an impairment.  Being regarded as having such an impairment. 42 U.S.C. § 12102; 28 C.F.R. § 36.105 (see the new regulatory definition of disability adopted after

ADA Amendments Act of 2008).

What Is Covered By ADA?

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The ADA prohibits discrimination and ensures equal opportunities for persons with disabilities in:

• Employment (Title I)
• State and local government services

(Title II)

• Public accommodations (Title III)

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Title II Covers Public Entities

All state and local governmental entities are covered by Title II, including the following entities operated by state and local governments: 1) Educational institutions. 2) Courts. 3) County Board and City Council meetings. 4) Law enforcement agencies. 5) State and local social service agencies. 6) Health care providers operated by state and local governments. 7) Jails and correctional facilities. 8) Websites affiliated with state and local agencies.

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Title III Covers Public Accommodations

Title III covers a wide range of entities, such as: (1) Privately operated healthcare providers (e.g., hospitals and skilled nursing facilities). (2) Offices of an accountant or lawyer. (3) Private educational institutions. (4) Theaters. (5) Social service centers, including day care centers and adoption agencies. (6) Museums. 42 U.S.C. § 12181(7); 28 C.F.R. § 36.104.

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Websites Operated by Public Accommodations

Places of public accommodation must ensure that they don’t discriminate in their goods, services, accommodations, etc., including via their website. NAD v. Netflix (DOJ Statement of Interest)

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Effective Communication Regulations

The effective communication requirements can be found in the following regulations: Title II: 28 C.F.R. §§ 35.104 (definitions) & 35.160-64 (Communications). Title III: 28 C.F.R. §§ 36.104 (definitions) & 36.303 (Auxiliary aids and services).

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General Effective Communication Requirements

 Covered entities are required to communicate effectively with people who have communication disabilities (i.e., vision, hearing or speech). The goal is to ensure that individuals with disabilities receive equally effective communication to those who do not have a disability.  Covered entities are required to furnish auxiliary aids and services in order to ensure effective

communication with individuals who have communication disabilities.

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General Effective Communication Requirements

 The key to communicating effectively is to consider the nature, length, complexity, and context of the communication and the person’s normal method(s) of communication.  Covered entities may not charge the individual with a disability any surcharge for furnishing auxiliary aids and services.  The rules apply to communicating with the person who is receiving the covered entity’s goods or services as well as with the person’s parent, spouse, or companion in appropriate circumstances.

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The ADA Regulations Broadly Define “Companion.”

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“‘[C]ompanion’ means a family member, friend, or associate

• f an individual seeking access to, or participating in, the

goods, services, facilities, privileges, advantages, or accommodations of a [covered entity], who, along with such individual, is an appropriate person with whom the [covered entity] should communicate.” 28 C.F.R. § 36.303(c)(1)(ii); see also 28 C.F.R. § 35.160(a)(2) (similar definition under Title II).

Consultation Requirement

An individualized assessment is important. One size does not fit all. To determine the type of auxiliary aid or service that will ensure effective communication, the covered entity should consult with the individual with a disability to determine their method of communication. Further, covered entities should consider the nature, duration and complexity of the

• communication. 28 C.F.R. § 36.303(c)(2)(ii); see also 28

C.F.R. § 35.160(a)(2).

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Factors to Consider To Determine the Type of Auxiliary Aid for Effective Communication

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(1) What is the method of communication used by the individual? (e.g., ASL, signed English,

• ral interpreter)

(2) How lengthy is the communication? (3) How complex is the communication? (4) What is the nature of the communication?

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Communication Request Form in DOJ ADA Settlements Are A Useful Tool To Obtain Individualized Information

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Communication Request Form in ADA Settlements Are A Useful Form To Obtain Individualized Information

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The Auxiliary Aid Must Work For the Individual

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There are many types of auxiliary aids and services for individuals who are deaf or hard of hearing, including: Real-time captioning (a.k.a., CART); CapTel Phones; Cued-speech interpreters; Assistive listening systems and devices; Telephone relay service; Hearing-aid compatible telephones; Videophones; and Sign language interpreters (ASL, signed English, etc.); 28 C.F.R. § 35.103; 28 C.F.R. § 36.303 (b).

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The Auxiliary Aid Must Work For the Individual

There are many types of auxiliary aids and services for individuals who have speech disabilities, including: A qualified speech-to-speech transliterator (a person trained to recognize unclear speech and repeat it clearly), especially if the person will be speaking at length, such as giving testimony in court. A communication board. Allowing more time for communication.

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The Auxiliary Aid Must Work For the Individual

There are many types of auxiliary aids and services for individuals who have vision loss, including: Qualified reader; Information in large print, Braille, or electronically for use with a computer screen-reading program; and An audio recording of printed information.

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Hearing Loss Later in Life

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Sign language interpreters are effective only for people who use sign language. Other methods of communication, such as the use of a transcriber may be necessary for those who lose hearing later in life and do not use sign language.

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Communication Access Realtime Translation (CART)

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CART

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“Computer Assisted Real-Time Transcription (“CART”) Many people who are deaf or hard of hearing are not trained in either sign language or speech reading. CART is a service in which an operator types what is said into a computer that displays the typed words on a screen.” DOJ ADA Business Brief: Communicating with People who are Deaf or Hard of Hearing in Hospital Settings

Many Kinds of Assistive Listening Devices

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PockeTalker Hearing aid compatible

telephones

TTY New technology, including

Captel phones

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PockeTalker (Used for hard of hearing patients who do not wear hearing aids or do not want to bring their hearing aids to the hospital, or hearing aid wearers with t-coils in their hearing aids if they use a neckloop.)

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Captioning & Telecommunications

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• Information provided by video should be captioned
• Televisions for patients in hospitals
• TDD, if telephone is offered to others

Hearing aid compatible telephones and amplified telephones

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Captel Phone

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Sign Language Is An Auxiliary Service

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A doctor uses sign language interpreter to communicate with a patient who is deaf.

Qualified Interpreter

If an interpreter is required, a covered entity must furnish a “qualified interpreter.” 28 C.F.R. §§ 36.104 & 35.104.

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Requirements for a “Qualified Interpreter”

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Able to interpret: 1. Effectively – interprets both receptively (i.e., understanding what the person with the disability is saying) and expressively (i.e., having the skill needed to convey information back to that person) using the sign language of the individual needing the interpreter (e.g., ASL, Signed English, etc.)

• 2. Accurately

3. Impartially 4. Understanding the necessary specialized vocabulary that is used for the particular setting (e.g., not all interpreters are qualified for medical settings). 28 C.F.R. § 36.104 (definition of “qualified interpreter”); see also Technical Assistance Manual, § III-4.3200.

In Addition, In Order to be Effective…

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• Accessible formats
• Timely manner -- delays mean that

service is not equal.

• Protect privacy and independence

28 CFR 36.303(c)(1)(ii)

Problems With Using Staff Who Signs “Pretty Well”

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Can a public accommodation use a staff member who signs “pretty well” as an interpreter for meetings with individuals who use sign language to communicate? Signing and interpreting are not the same thing. Being able to sign does not mean that a person can process spoken communication into the proper signs, nor does it mean that he or she possesses the proper skills to observe someone signing and change their signed or fingerspelled communication into spoken words. The interpreter must be able to interpret both receptively and expressively. Americans with Disability Act, Technical Assistance Manual, §§ II-7.1200 & III-4.3100.

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Is Certification Necessary?

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If a sign language interpreter is required for effective communication, must only a certified interpreter be provided? No. The key question in determining whether effective communication will result is whether the interpreter is “qualified,” not whether he

• r she has been actually certified by an official licensing body. A

qualified interpreter is one “who is able to interpret effectively, accurately and impartially, both receptively and expressively, using necessary specialized vocabulary.” An individual does not have to be certified in order to meet this standard. A certified interpreter may not meet this standard in all situations, e.g. , where the interpreter is not familiar with the specialized vocabulary involved in the communication at issue. Americans with Disability Act, Technical Assistance Manual, § III-4.3100 (emphasis added).

VDDHH’s Discussion of “Qualified Interpreter”

Perhaps the biggest misconception concerning interpreting for people who are deaf or hard of hearing is the generally- held assumption that a beginning course in sign language or fingerspelling is a sufficient qualification to work as an

• interpreter. A person who knows conversational sign

language does not necessarily possess the expertise required to perform well in the role of an interpreter. Professional interpreting requires intense training and experience before proficient levels of skill are attained. VDDHH, Directory of Qualified Interpreters for the Deaf and Hard of Hearing, at 3 (emphasis in original).

Enlisting Companions

Generally, covered entities may not rely upon companions to interpret or facilitate communication. 28 C.F.R. § § 35.160(c)(2) & 36.303(c)(3).

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ADA Prohibition On Relying Upon Adult Companions To Facilitate Communication

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A covered entity shall not rely on an adult accompanying an individual with a disability to interpreter or facilitate communication except –  In an emergency involving an imminent threat to the safety or welfare

• f an individual or the public where there is not interpreter available;
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 Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.  28 C.F.R. §§ 35.160(c)(2) & 36.303(c)(3).

ADA Prohibition On Relying Upon Child Companions To Facilitate Communication

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“A [covered entity] shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.” 28 C.F.R. §§ 35.160(c)(3) & 36.303(c)(4).

Video Remote Interpreting (“VRI”)

 VRI is a fee-based service that uses video conferencing technology to access an off-site interpreter to provide real-time interpreting.  VRI is not effective in all circumstances. For

example, if someone is in extreme pain and cannot focus on a screen.

 In order for VRI to be effective communication, users must be trained to quickly and efficiently set up and operate the VRI.

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Performance Standards for VRI

If VRI is chosen, specific performance standards must be met:  Real-time, full motion video and audio over a dedicated high speed, wide-bandwidth video connection or wireless connection.  No lags, choppy, blurry, or grainy images, or irregular pauses in communication.  A sharply delineated image that is large enough to display the both interpreter’s and the individual using sign language face, arms, hands, and fingers. 28 C.F.R. §§ 35.160(d); 36.303(f).

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Specific Requirements For Title II Entities

Substantive Requirements. Procedural Requirements. Structural Requirements.

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Animating Principle of Title II Of The ADA

No qualified individual with a disability shall, by reason

• f such disability, be excluded from participation in or

be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132; see also 28 C.F.R. §§ 35.130(a); 35.152(b)(1).

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The Consultation Requirement

“When an auxiliary aid or service is required, the public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice and must give primary consideration to the choice expressed by the individual. It is important to consult with the individual to determine the most appropriate auxiliary aid or service, because the individual with a disability is most familiar with his or her disability and is in the best position to determine what type of aid or service will be effective.” Americans with Disability Act, Technical Assistance Manual, § II-7.1100 (emphasis added).

Consultation Requirement Ongoing

“A public entity has a continuing obligation to assess the auxiliary aids and services it is providing, and should consult with the individuals with disabilities on a continuing basis to assess what measures are required to ensure effective communication.” Section-by-Section discussion of 2010 ADA Regulations (emphasis added).

“Primary Consideration”

The ADA regulations state that: “[i]n determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the request of individuals with disabilities.” 28 C.F.R. § 35.160(b)(2) (emphasis added).

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Head of the Agency Makes Decision in Writing Regarding Fundamental Alteration or Undue Burden

The head of a public entity or his or her designee is responsible for making the determination that would result in “a fundamental alteration in the nature of a service, program, or activity or in undue financial or administrative burden . . . after considering all resources available.” 28 C.F.R. § 35.164. This decision must be accompanied by “a written statement of the reason for reaching that conclusion.” Id.

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ADA Coordinator

The ADA regulations provides that: “A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part [of the ADA Regulations].” “The public entity shall make available to all interested individuals the name, office address, and telephone number of the employee or employees designated pursuant to this paragraph.” 28 C.F.R. 35.107.

ADA Coordinator

The section-by-section Analysis of the ADA Regulations explain the rationale for the designation of an ADA Coordinator: “The requirement for designation of a particular employee and dissemination of information about how to locate that employee helps to ensure that individuals dealing with large agencies are able to easily find a responsible person who is familiar with the requirements of the Act [ADA] and this part [of the ADA regulations] and can communicate those requirements to other individuals in the agency who may be unaware of their responsibilities.”

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Effective Communication in Specific Settings

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Barrier-Free Health Care Initiative

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Through the Barrier-Free Health Care Initiative, U.S. Attorneys’ Offices and DOJ’s Civil Rights Division are targeting their enforcement efforts

• n access to medical services and

facilities to ensure effective communication for people who are deaf or have hearing loss.

DOJ Publication Provides Very Helpful Guidance For Healthcare Settings

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Healthcare Settings: “ADA Business Brief: Communicating with People Who Are Deaf or Hard of Hearing in Hospital Settings”

 Situations where an interpreter may be required for effective communication:  Discussing a patient’s symptoms and medical condition,

medications, and medical history

 Explaining and describing medical conditions, tests, treatment options, medications, surgery and other procedures  Providing a diagnosis, prognosis, and recommendation for treatment  Obtaining informed consent for treatment  Communicating with a patient during treatment, testing procedures, and during physician’s rounds

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ADA Business Brief: Communicating with People Who Are Deaf or Hard of Hearing in Hospital Settings

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 Situations where an interpreter may be required for effective communication (continued):  Providing instructions for medications, post-treatment activities, and follow-up treatments  Providing mental health services, including group or individual therapy, or counseling for patients and family members  Providing information about blood or organ donations  Explaining living wills and powers of attorney  Discussing complex billing or insurance matters  Making education presentations, such as birthing and new parent classes, nutrition and weight management counseling, and CPR and first aid training

Healthcare setting cases

Fairfax Nursing Center Failure to provide a qualified ASL interpreter to the daughter and granddaughter of a resident at FNC during a six week physical rehabilitation stay. Equitable relief, $80,000 in compensatory damages, $12,500 to train other skilled nursing facilities in Virginia

• n the ADA effective communication requirements, and $5,000 to

effectuate the public interest. Commonwealth Health & Rehab Center Failure to provide ASL Interpreter to rehab patient, who is deaf. and his Mother and Sister, who are also deaf, during 27-day physical rehabilitation stay at the facility. Equitable relief, $160,000 in compensatory damages & $2,500 civil penalty

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Educational Entities

Very helpful publication issued jointly by the United States Department of Justice and United State Department of Education: “Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools.”

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Educational Entities

Under Title II, what must public school districts do to provide effective communication to students with hearing, vision, or speech disabilities?

• Answer. Title II and its implementing regulations require public school

districts to ensure that communication with students with hearing, vision, or speech disabilities is as effective as communication with students without disabilities. To do this, public schools must provide appropriate “auxiliary aids and services” where necessary to provide effective communication; that is, schools must provide appropriate auxiliary aids and services so that students with disabilities have an equal opportunity to participate in, and enjoy the benefits of, the services, programs, and activities of the public school district.

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Educational Entities

Under what circumstances is a public school required to provide auxiliary aids and services to persons with a hearing, vision, or speech disability who are not students, such as parents, other relatives, and members of the public, who seek to participate in or benefit from a district's services, programs, or activities?

• Answer. Title II’s effective communication obligations are not limited

just to students - schools are obligated to provide effective communication to all individuals who seek to participate in or benefit from a school district’s services, programs, or activities such as student registration, parent-teacher conferences, meetings, ceremonies, performances, open houses, and field trips. All of the same Title II requirements and considerations discussed in the context of students with hearing, vision, or speech disabilities apply to other individuals with disabilities who are covered by this requirement.

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Cases Involving On-line Access To Educational Programs

Settlement Agreement with edX, Inc. 4/2/2015 Provider of massive open online courses (MOOCs) agreed to make its website, platform, and mobile applications accessible to individuals with disabilities. Settlement Agreement with Louisiana Tech University 7/22/2013 Addressed use of an Internet-based learning product for university course work (homework, testing) that was inaccessible to a student who is blind.

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State and Local Courts

Access to state and local courts and the ability of individuals with hearing disabilities to participate in such proceedings were a special concern that Congress considered when it enacted the ADA. See, e.g., Tennessee v. Lane, 541 U.S. 509, 527 (2004) (explaining that “Congress learned that many individuals, in many States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities,” and citing legislative testimony concerning the “failure of state and local governments to provide interpretive services for the hearing impaired”).

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State and Local Courts

“Because of the importance of effective communication in State and local court proceedings, special attention must be given to the communications needs of individuals with disabilities involved in such proceedings. Qualified interpreters will usually be necessary to ensure effective communication with parties, jurors, and witnesses who have hearing impairments and use sign language. For individuals with hearing impairments who do not use sign language, other types

• f auxiliary aids or services, such as assistive listening devices or

computer-assisted transcription services, which allow virtually instantaneous transcripts of courtroom argument and testimony to appear on displays, may be required.” Title II Technical Assistance Manual, II-7.1000

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State and Local Courts

In Prakel v. Indiana, 100 F.Supp.3d 661 (S.D. Ind. 2015), the court held that because there is a clear history of the public’s right to attend criminal proceedings, being a spectator of a court proceeding is included within Title II’s protections. Settlement Agreement with Orange County Clerk of Courts (DOJ case) Inaccessibility of filed court documents for blind

• attorney. Court agrees to ensure documents in

accessible format upon request.

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Meetings of State and Local Governmental Bodies

“A deaf individual does not receive an equal opportunity to benefit from attending a city council meeting if he or she does not have access to what is said.” Title II Technical Assistance Manual, II-3.3000.

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Law Enforcement Activities

A DOJ Technical Assistance Publication “Commonly Asked Questions About The Americans With Disabilities Act And Law Enforcement” explains that: “[t]he ADA affects virtually everything that [police]

• fficers and [sheriff’s] deputies do, for example . . .

arresting, booking, and holding suspects.”

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Law Enforcement Activities

“Under the Americans with Disabilities Act (ADA), people who are deaf or hard of hearing are entitled to the same services law enforcement provides to anyone else. . . Law enforcement agencies must make efforts to ensure that their personnel communicate effectively with people whose disability affects hearing.” “When you are interviewing a witness or a suspect or engaging in any complex conversation with a person whose primary language is sign language, a qualified interpreter is usually needed to ensure effective communication.” DOJ Publication: Communicating with People Who Are Deaf or Hard of Hearing; ADA Guide for Law Enforcement Officers

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Law Enforcement Activities

“A municipal police department encounters many situations where effective communication with members of the public who are deaf or hard of hearing is critical. Such situations include interviewing suspects prior to arrest (when an officer is attempting to establish probable cause); interrogating arrestees, and interviewing victims or critical witnesses. In these situations, appropriate qualified interpreters must be provided when necessary to ensure effective communication.” U.S. Dep’t of Justice, Americans with Disabilities Act: Title II Technical Assistance Manual 1994 Supplement § II- 7.1000(B),

• illus. 3 (Nov. 1993 & Supp. 1994)

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Law Enforcement Activities

DOJ recently filed an amicus brief in City and County of San Francisco v. Sheehans, No. 13-1412 (United States Supreme Court), in which the Solicitor General (“SG”) expressed the view of the United States Government with regard to the ADA’s coverage to local law enforcement activities as follows: “[t]he statutory text [of the ADA] further demonstrates that law enforcement entities are subject to Title II’s anti- discrimination mandate with respect to all of their operations, including arrests.” Id. at 19 (emphasis added). The SG went on to explain: “[b]ecause law enforcement entities are subject to Title II, they must ‘make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis

• f disability.” Id. at 22 (citing 28 C.F.R. 35.130(b)(7); Title II Technical

Assistance § II-3.6100, at 14).

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State And Local Detention Facilities

The ADA’s Title II implementing regulations expressly cover “jails, detention and correctional facilities” run by state and local governments. 28 C.F.R. § 35.152. The Supreme Court expressly held (in a unanimous decision) that the ADA’s requirements apply to state and local detention centers. Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998); See also Title II Regulations, 2010 Guidance and Section-by-Section Analysis.

Individuals with Communication Disabilities Are Entitled to Equal Access To Communication

State and local detention facilities are required to take appropriate steps to ensure that communications with inmates with disabilities are as effective as communications with others, including furnishing appropriate auxiliary aids and services. 28 C.F.R. §§ 35.130(b)(1)(ii) & 35.160(b)(1). One example: the Section-by-Section Analysis of the ADA regulations explain: “that correctional facilities and jails must ensure that inmates who are deaf or hard of hearing actually receive the same information provided to other inmates.”

Effective Communication in Correctional Facilities

In Pierce v. District of Columbia, 128 F.Supp.3d 250 (D.D.C. 2015), an individual who is deaf was incarcerated for 51 days. The prison staff never assessed Plaintiff’s communication needs, and instead assumed lip- reading and written notes were sufficient. Plaintiff asserts he asked for an interpreter for medical intake, health services and various classes. The court granted summary judgment for Plaintiff on effective communication and intentional discrimination and denied prison’s motion for summary judgment. The Court also held that the jail violated the ADA as a matter of law by failing to evaluate Plaintiff’s need for accommodation when taken into custody.

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Pursuant to the ADA, Prisons Have An Affirmative Duty To Assess Inmates With A Disability

“[B]ased on its reading of federal law, this Court holds that prison officials have an affirmative duty to assess the potential accommodation needs of inmates with known disabilitieswho are taken into custody and to provide the accommodations that are necessary for those inmates to access the prison’s programs and services, without regard to whether or not the disabled individual has made a specific request for accommodation and without relying solely on the assumptions of prison officials regarding that individual’s needs.” Pierce v. District of Columbia, Pierce v. District of Columbia, 128 F.Supp.3d 250, 272 (D.D.C. 2015)

Common Issues That Have Arisen in Failure To Provide Effective Communication Cases

 Failure to obtain interpreter for late night emergency admissions to hospital;  Relying upon family members, friends and/or unqualified staff members to facilitate communication;  Failing to recognize that a companion with disabilities is entitled to effective communication;  VRI issues: (1) staff does not know to set up VRI and/or (2) the VRI system is not working properly;  Inappropriate reliance on hand-written notes for individuals whose primary means of communication is ASL;

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Common Issues That Have Arisen in Failure To Provide Effective Communication Cases

 Erroneously assuming that an individual who is deaf or

hard of hearing can read lips and does not need an auxiliary aid or service;

 Refusal to provide auxiliary aids and services due to cost;  Failure to train staff on the ADA’s requirements and the services available to individuals who are deaf or hard of hearing; and  Failure to ensure website accessibility to individuals with disabilities.

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The ADA Requires Hospitals To Ensure That Interpreters are Available For After-Hours Emergencies

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Hospitals are required to ensure that qualified interpreters are readily available for after-hours emergencies. A Department of Justice publication, entitled, “ADA Business Brief: Communicating with People Who Are Deaf or Hard of Hearing in Hospital Settings,” explains that: “Hospitals should have arrangements in place to ensure that qualified interpreters are readily available on a scheduled basis and

• n an unscheduled basis with minimal delay, including on-

call arrangements for after-hours emergencies. Larger facilities may choose to have interpreters on staff.” (Emphasis added).

Legal Principles Addressing Common Issues

 Covered entities are required to furnish auxiliary aids and services including interpreters and may not require the person with a disability to bring their own. 28 C.F.R. § 35.160(b)(1) & (c)(1) & 36.303(c)(2).  Covered entities may not enlist companions to interpret. 28 C.F.R. § 35.160(c)(1) & 36.303(c)(3).  ADA regulations define “qualified interpreter” to be someone who can interpret effectively, accurately, impartially and understands the necessary specialized vocabulary. 28 C.F.R. § 35.104; 36.104.  A patient’s companion, who is deaf or hard of hearing, is also entitled to effective communication. 28 C.F.R. § 35.160(a)(1) & 36.303(c)(1).  In order for VRI to be effective communication, users must be trained to quickly and efficiently set up and operate the VRI. 28 C.F.R. § 35.160(d)(4) & 36.303(f)(4).

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Individuals Who Are Deaf Often Lack Good English Reading and Writing Skills

The ADA Technical Assistance Publication entitled “Communicating with People Who Are Deaf or Hard of Hearing: ADA Guide for Law Enforcement Officers” explains that: “[w]hen communicating by writing notes, keep in mind that some individuals who use sign language may lack good English reading and writing skills.” (Emphasis added).

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Public Accommodation Must Absorb Costs Associated With ADA Compliance

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“Although compliance [with the ADA] may result in some additional cost, a public accommodation may not place a surcharge only on particular individuals with disabilities or groups of individuals with disabilities to cover these expenses.” “ILLUSTRATION 2: In order to ensure effective communication with a deaf patient during an office visit, a doctor arranges for the services of a sign language interpreter. The cost of the interpreter’s services must be absorbed by the doctor.” Technical Assistance Manual, § III-4.1400 (Emphasis added).

Lip Reading Has Many Limitations

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• - Can have high error rate
• - Facial hair or accents obscure
• - Don’t assume that just because

someone can lip read a few words, they understand everything. Ignorance of the ADA’s Legal Requirements Is Not a Valid Defense

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A covered entity’s subjective belief that it is complying with the ADA -- when in fact it is not in compliance -- is not a valid defense. The plain language of the ADA places liability upon a public accommodation for simply failing to comply with the ADA’s requirements. Thus, “discrimination” under the ADA is broadly defined to include: “the failure to take such steps as may be necessary to ensure that no individual with a disability is excluded [or], denied services. . .” 42 U.S.C. § 12182(b)(2)(A)(iii).

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Ignorance of the ADA’s Legal Requirements Is Not a Valid Defense

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As one court recently noted: “[t]he ADA seeks to prevent not only intentional discrimination against people with disabilities but also – indeed primarily – discrimination that results from ‘thoughtlessness and indifference,’ that is, from ‘benign neglect.’” Brooklyn Cntr for Independence of the Disabled v. Bloomberg, 980F. Supp.2d 588, 640 (S.D.N.Y. 2013) (quoting, H.R.Rep. No. 101–485(II), at 29 (1990)).

Medicare & Medicaid Providers Have An Affirmative Obligation To Inform Themselves and Comply with the ADA and Rehab Act

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The courts have long-held that those impacted by a legal requirement, particularly those who seek funds from the public fisc, are presumed to have knowledge of the applicable laws, including statutes and

• regulations. In this regard, the Supreme Court has written that:

 “[p]rotection of the public fisc requires that those who seek public funds act with scrupulous regard for the requirements of law; respondent could expect no less than to be held to the most demanding standards in its quest for public funds. This is consistent with the general rule that those who deal with the Government are expected to know the law . . . ”  Heckler v. Community Health Serv., 467 U.S. 63 (1984) (emphasis added).

ADA Enforcement & Remedies

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Injunctive Relief (e.g., establishing new

policies and procedures, and training).

Compensatory Damages (actual

damages and pain and suffering).

Civil Penalty

42 U.S.C. § 12188.

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Elements for Successful ADA Compliance

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 Understand the ADA and how it relates to your

• rganization.

 Designate an ADA Coordinator or Administrator, who has

sufficient authority within the organization to ensure compliance.

 Train staff who have direct contact with the public on the requirements of the ADA and on how to use equipment that supports individuals with disabilities.  Develop a process within the organization to handle ADA Accommodation requests that include communication with individuals with disabilities to ascertain their needs.

Elements for Successful ADA Compliance

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 Easy access to auxiliary aids, including sign language interpreters, for staff.  Proper documenting/charting when dealing with ADA issues.  Effective grievance procedure for ADA issues.  Develop a procedure to assess and monitor ADA compliance.

Staff Training is Critical

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A critical and often overlooked component of ensuring success is comprehensive and ongoing staff training. Covered entities may have established good policies, but if front line staff are not aware of them or do not know how to implement them, problems can arise. Covered entities should teach staff about the ADA’s requirements for effective communication, HIV and accessible

• equipment. Many disability organizations can provide

ADA trainings.

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Reminder: ADA.gov Is Great Resource

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My Contact Information

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Steven Gordon Civil Rights Enforcement Coordinator Assistant United States Attorney Eastern District of Virginia Steve.Gordon@usdoj.gov (703) 299-3817