Rule 326

Things interpreters think but probably should not say (an on-going series):

This termination letter is beautifully written… but, understand where is says, “ceasing your duties as an employee” the most semantically correct sign for that really just equals “fired.”  And where it says “immeadate separation,” that sign also basically means “fired.” Humm. “Transfer of all work related duties,” uses the sign, “fired.” Yep, and like three more of these euphemisms are expressed in ASL using a sign that semantically equates to “fired.”  
Beautifully written though. 

Uncle Dale’s “You Probably Should Know”: Employee vs Independent Contractor (MLM)

I got this question a bunch this week. Many people who are Deaf and a few interpreters are outraged because there is a multi-level marketing convention in town and it has refused to provide interpreters because it says that the Deaf attendees are not “employees.” The MLM is right, they are not employees-but 100% wrong that it does not need to provide interpreters for them.

If you are not familiar with the idea of an MLM, it’s one of those companies that sells soap or skin care products or essential oils or found some awful tasting fruit that they now sell as a health drink.  They don’t sell them from stores or on-line. One person gets a few sales reps “under” them or in their “downline” who then get people “downline” from them and so on and so on… its a huge business.  

Anyway.  Most of these companies are run by lovely people, but every now and again I run into this issue.  A Deaf person joins the group as a sales rep and buys a ticket to a MLM convention (where they have motivational speakers and sales trainings and opportunities to network and build your business) as all sales reps are encouraged to do.  The person who is Deaf requests an interpreter and the MLM says no.  The MLM doesn’t believe it has to because, as I said, the person who is Deaf does not “work” for the MLM; the person who is Deaf is not their “employee.”  The MLM is right.  The person who is Deaf is an independent contractor.  If they try to force the issue using Title I the person who is Deaf will lose because Title I does not apply.

But, if you are not an employee you are “the public” and that falls under Title III.  Once a person who is Deaf bought a ticket to the MLM event that person became a “qualified person with a disability” under Title III (I know the who disability thing leaves a bad taste in your mouth–I wrote a paper on it, me too–but if you want to use the ADA…).  A person with a disability because the Deaf person is… well… Deaf, and qualified because a person is qualified to attend the MLM event if that person has a ticket to the event.  So when the MLM said it would not provide interpreters the person who is Deaf got the last thing they needed to have “standing” (the legal ability) to sue.

[t]o establish Article III standing, a plaintiff must show that: (1) she has suffered an ‘injury-in-fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to being merely speculative, that the injury will be redressed by the relief requested. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004).

MLM’s at this point will scream and cry that is not on the list of “places of public accommodation” that is contained within Title III, it is not a store nor does it maintain a place that “accommodates” the “public” (not the same thing as a reasonable accommodation— different thing/similar name… different discussion for a different time).

Again, the MLM is right.  It is not on the list of “places of public accommodation” found in Title III.  But the convention center it is using for the convention is.

“Oh,” you say, “so the convention center must provide the interpreter?”  Nope. Well, the MLM can allocate the responsibility to provide interpreters to the convention center by contract… but usually the convention center will be responsible for the physical accessibility (more permanent structures) but the MLM is “operating” the venue (selling tickets, controlling access…) so the MLM would be responsible for non-structural access (psst. interpreters).

The person who is Deaf paid a price to attend the conference, the conference is held in statutorily defined place of public accommodation and the place public accommodation is operated, at least for the duration of the conference by the MLM, which Title III says makes the MLM, for the time frame of the conference at defacto public accommodation (even if the “lease” of the space is for a very short time).

So an “independent contractor” sales rep has the ability to enforce the ADA against an MLM using Title III, not because the person who is Deaf is an independent contractor… but because the person is NOT an employee, just a qualified member of the public.

I included a case that shows how it all works.

Jensen v United First Financial

http://cases.justia.com/federal/district-courts/utah/utdce/2:2009cv00543/70925/20/0.pdf?ts=1411581661

This blog and the attached vlog are informational but not meant to be legal advice or replace discussing your situation with a licensed attorney in your area.

Rule 302

VRS Call Center, Saturday 2:30 AM: This isn’t Hell. Hell only has 9 rings.

(I answered more than that my first hour.)

Uncle Dale’s “You Probably Should Know”: The Affordable Care Act and Interpreters 

OBAMACARE? Yow! Thems fightn’ words!  I have another blog where I express my political views and try to keep this one more informative and neutral. At risk of being accused of political speech hear me out!  This is something you probably should know and a scary number of people don’t.

It has to do with hospitals and doctors offices providing interpreters; even live interpreters over VRI.

A little background first. The ADA has five parts called Titles (you will never use the last two). Title II applies to government entities. Title II of the ADA has what is called the “Primary Consideration Rule.”  What that means is when a person who is Deaf attempts to access government programs, benefits and services the government entity must give “primary consideration” to the auxiliary aid or service requested by the person who is Deaf.  What that means is the government agency must give the person who is Deaf the specific aid they requested, like a live interpreter, or the government entity must prove it was not needed.  It is not easy to prove something is not needed.

Title III of the ADA doesn’t say that.

Title III has to do with accessing the services of private businesses, like hospitals and doctors offices. Title III only says the private business “should consult with” the person who is Deaf. IT INCLUDES NO OBLIGATION TO GIVE CONSIDERATION TO WHAT THE PERSON WHO IS DEAF REQUESTS.

In recent years when the Department of Justice has settled cases involving people who are Deaf who sue government entities (the settlement agreements are called Consent Decrees) the DOJ has been including language that says the definition of “primary consideration” is that the government entity must ask the person who is Deaf what kind of accommodation the Deaf person needs*.  Think about that. Prior to that the expectation has always been that the government entity only had to give “primary consideration” to the auxiliary aid or service that the person who is Deaf ACTUALLY REQUESTED.  If the Deaf didn’t ask… too bad! But if that language becomes the standard then anytime the law requires “primary consideration” the entity or business must ASK the Deaf person what they want and give it to the Deaf person or have the burden to explain in court why it did not.

So compare that with Title III where the private business doesn’t even have to consider the request of the person who is Deaf… the law just says it should, not that it must.

Section 504 has always been somewhere in the middle of the two.   The regulations under the Department of Health and Human Services have much stronger language than “should” but still not as strong as “primary consideration.” For some weird reason HHS also limited the application of Section 504 to medical providers with 15 or more employees.  So many small town doctors are not required to follow 504.

Now. I CAN FINALLY get to the thing you probably should know.

A couple of nights ago I was meeting with a group of people who are Deaf and who had complaints about hospitals using VRI and mentioned the Affordable Care Act (Obamacare) and fully 2/3 of the people in the room groaned, rolled their eyes, or made a disgusted face (I will freely admit, the Deaf Republican has always been a strange notion to me) there were comments flying around the room about how terrible Obamacare is and supporting the Senate Bill.  At this point I got everyone’s attention.

“I will not have a political discussion here,” I said, “that is not why we are here-but I will tell you all something you probably should know.”

“Most of the hospitals we are discussing fall under Title III as they are private businesses.”  I explained what the concept of “should” to them.

“Only one of the hospitals is a government entity.” I explained the benefit ‘primary consideration’ like I did above.

“All of them must follow Section 504,” I explained, “because they accept Medicare.”

Here is kicker, ready?

Obamacare has a section called the nondiscriminatory rule or Section 1557.  It applies to any health program or activity, any part of which receives HHS funding, such as hospitals that accept Medicare or doctors who receive Medicaid payments; the Health Insurance Marketplaces and issuers that participate in those Marketplaces; and any health program that HHS itself administers (Medicare Part B is excluded).

In Section 1557 it states that covered entities must give “primary consideration” to an individual’s choice of aid or service.

Yes you read that right!

The Office of Civil Rights confirmed that all covered entities will be held to the higher standards established under Title II of the ADA, which requires covered entities to give primary consideration to the choice of an aid or service requested by the individual with a disability.

OCR also explicitly stated that the communications requirements of Section 1557 apply to all providers even those with fewer than 15 employees.

In essence the ACA/Obamacare makes the standard for Section 504 the same as the standard for Title II. It means that hospitals and doctors must give you the accommodation you asked for (or maybe even ask you what you want) and if they don’t the court will make them prove a live interpreter was not needed instead of requiring the Deaf person to prove it was.

If the ACA/Obamacare goes away, so does that protection.

You should probably know that.

*Primary Consideration. In determining what type of auxiliary aid or service is necessary to comply with the ADA, the ACSO agrees to give primary consideration to the expressed preference for a particular auxiliary aid or service by an individual who is deaf or hard of hearing. “Primary consideration” means that Personnel will inquire as to the choice of auxiliary aid or service of the individual and will honor the expressed choice unless the ACSO can demonstrate that another equally effective means of communication is available.  See Consent Decree for LAWRENCE et al., v. CITY OF ENGLEWOOD, et al., and ARAPAHOE COUNTY SHERIFF para 27 https://www.ada.gov/lawrence-arapahoe.htm 2013

This blog and the attached vlog are informational but not meant to be legal advice or replace discussing your situation with a licensed attorney in your area.

Rule 284

Interpret for four and a half hours alone?  If I’m alone, I don’t even want to do something that feels good for over two hours.

Note from Uncle Dale: The Mind of Tommy Westphall

Hi everyone! Uncle Dale here… maybe.  I mean maybe I’m here… but maybe not.  That will be clear in a minute.  Maybe not “clear.” Clearer?  We will go with that.  

Much like my Note called “Enjoy the Little Things” this Note is only somewhat related to interpreting.  It mentions the word.  I would say it’s worth your time… but I don’t know your billable hours. 

Anyway.  Just for fun!  In the 1980s there was a critically acclaimed tv show called “St. Elsewhere.” It was a hospital drama; think ER/Gray’s Anatomy. St. Elsewhere is famous for its cutting edge storytelling but also for its final episode where, in the final shot, the camera pans out showing a snow storm and we see that the entire hospital is actual a snow globe being held by Tommy Westphall, a boy with Autism who is the son of one of the doctors. But we also find out Tommy’s father is not a doctor, he is a construction worker, suggesting that the whole show took place in Tommy’s mind. (Yep! Lost and The Sopranos did not invent the “whaaa?” ending).

So, here is the conundrum. If the whole show happened in the mind of a boy with Autism named Tommy Westphall–then if any characters from another show crossed over into St. Elsewhere’s universe they and their show must also have just happened in the mind of Tommy Westphall

This happened, a lot. 
Two doctors who identified themselves from being from St. Elsewhere spoke to Carla on an episode of Cheers. Bang. Cheers happened in Tommy’s mind. 

Thus if characters (not actors, the actual characters they played) from Cheers crossed over to another show then THAT show, by extension, was in the head of Tommy Westphall. Mapping this out people have connected over 400 shows from Andy Griffith to the Wire to Veronica Mars, to X-Files to Red Dwarf as “logically” occurring in the mind of Tommy Westphall. There is the set up.  

Ok?
Ready? 

Years ago I was an extra on show called Promised Land where I “played” an interpreter. I was uncredited, but the call list identified my character as me, “Dale the Interpreter.” Promised Land was a spin off of Touched By an Angel which had a crossover with X-Files which had a crossover with Law and Order which had a crossover with Homicide Life on the Streets which had two characters cross over from St. Elsewhere (after St. Elsewhere was already cancelled) which means… 

I only exist in the mind of Tommy Westphall. 
And by extension because you know me… you only exist in his mind too! 

You’re welcome.  

It’s Tommy Westphall’s World We Just Live In It  

http://www.wnyc.org/story/tommy-westphalls-universe-we-just-live-in-it/