Uncle Dale at the Utah Association of the Deaf Conference.

Saturday, September 7, 2019, I was honored to be present at UAD’s annual conference in Ogden, Utah.

My workshop was an overview of Federal laws. I present it like each applicable law (the ADA, 501, 504, the ACA and IDEA) or Title thereof (ADA Titles I, II and III) are separate countries and we are all taking a tour and learning the culture and language of each.

This workshop is designed to be presented in a gym or large conference room and it takes six hours (two sessions of three hours each). I map the “laws/countries” out on the floor and the participants physically travel from one “law/country” to the next while we discuss the similarities and differences in each law/country’s history, language, culture, and customs.

It’s a big undertaking.

As you can imagine I’ve only been asked to do the full presentation a few times but each time has been amazing (I am thinking of organizing one for a Saturday in early November at the Utah Community Center for the Deaf and filming some of it so people or groups who are interested can see how it works). The first time I did it I had souvenirs from the different “laws/countries” the participants visited.

Like I said, it’s labor intensive for me to do the full tour and to do it right, but it’s worth it.

Usually I am asked to give a less involved version of it in a 2-3 hour time slot. It’s still a fantastic workshop but I sometimes feel like the participants are taking a tour by bullet-train!

In the 2-3 hour version the attendees stay in one place and I move (if you look at the top of the projector screen you can see one of our “stops” marked out.

This time I had just a little over an hour-so I really had to strip it down. Luckily, Jared Allebest’s presentation covered many of the details I had to edit out for time.

I was thrilled UAD asked me to present because the venue was a little bit of a homecoming for me. The conference room where I gave my presentation was right down the hall from my former office at The Utah Schools for the Deaf and Blind.

Back in the 1990’s I was the lead mentor for all of the interpreters working within the USDB system.

By the way, Jared Allebest, the guy I mentioned before, is an attorney who is Deaf here in Utah.

Yes. Utah has two attorneys who are fluent in ASL! (I’m just kidding. Utah actually has FOUR attorneys who are fluent in ASL. Two of us who are solo practitioners, one who works the for state in the juvenile court system and one who works with a firm in southern Utah-it’s kind of an embarrassment of wealth I will admit that).

My next two scheduled presentations will be on October 12, 2019 through Zaboosh on-line trainings. You can get more info here:

https://zaboosh.com/collections/frontpage/products/what-works-october-2019-conference

And

The Colorado RID Conference, October 18-20, 2019, details here:

http://www.coloradorid.org/crid-conference-2019.html

I’d love to meet you so if you see me don’t hesitate to come up to say hi!

Uncle Dale’s, You Probably Should Know: The Hospital ER Script.

ASLized courtesy of Delawaredeaf.org

Last night there was a town hall meeting at the Deaf Center discussing the failure or refusal of hospitals to give primary consideration to the request of the patient who is Deaf when they ask for a Live In-Person Interpreter and are told they have to use VRI or get nothing at all. I was in the audience and suggested a script for making such a request.

Several people who are Deaf in the town hall asked, “why should we have to go through all that? Shouldn’t they just respect our request?”

Yes, of course they should. But if they did or would there would be no need for this town hall meeting. Hospitals are businesses and as such will not change just because the Deaf community asks. They will only change if they are forced to.

This script will help build a factual basis for future lawsuits which is the only thing hospitals will respond to.

THE SCRIPT

(If you are in too much pain or stress whomever is with you can follow this script for you)

I require a live in-person ASL Interpreter for effective communication.

Let’s use VRI until we can get an interpreter here for you.

VRI is not effective for me because (pick the one that fits):

I am in pain/stress/destress and I can’t follow the three dimensional language of ASL on a two dimensional screen;

I’m not ordering a pizza, I’m trying to get medical care;

The screen is too small;

The picture keeps freezing;

Your staff does not know how to hook it up;

The VRI Interpreters can’t see or hear what is going on off screen and so I miss half the message;

My eye-sight is not good enough to see ASL on a VRI screen; or,

Your reason here.

Please make a note of the reason that VRI is not effective for me in my medical records so that we don’t have to have this discussion every time I come to the hospital.

But it’s after 5/it’s the weekend and there are no live Interpreters available.

That is not true. Interpreter referral agencies are open 24 hours a day 7 days a week. Please make a note of that in my medical record so I don’t have to explain this every time I come to the hospital.

VRI is the same as a live interpreter.

It is not. VRI and Live In-Person Interpreters are listed as separate accommodations under federal law. The Affordable Care Act in Section 1557 says that Section 504 of the Rehabilitation Act requires you to give primary consideration to the specific accommodation I request and I request a Live In-Person Interpreter. Please make a note of that in my medical file so I will not have to have this conversation every time I come the hospital.

Well, it could take a long time for the interpreter to get here so let try VRI until then.

I will use VRI until the Live In-Person Interpreter gets here if AND ONLY IF you provide me with the following information:

1. The name of the hospital staff person who requested the interpreter on my behalf;

2. The exact time that staff person called to request the interpreter for me;

3. The name of the agency the hospital staff person called to request an interpreter for me;

4. The name of the specific person the hospital staff person spoke to at that agency to request an interpreter for me; and,

5. The time the agency estimates the interpreter will arrive at this hospital.

Provide that to me in writing and make a note of it in my medical file and I will use VRI until the interpreter arrives.

Why do you need to know all of that?

Because I need to know who has ownership of my request.

We are not allowed to give you that information.

Yes you are. None of it is protected by law. If you refuse to give me the information I request please provide me with the specific law that forbids it and also make a note in my medical record that I requested it and you refused to provide it.

We don’t put things like that in medical records.

You put all kinds of things in medical records and this is my medical record and you will put whatever I tell you to put in it.

There is not an interpreter available.

I will now call the interpreter referral agency that you told me the hospital called and verify the time you called and that there is no interpreter available. If there is in fact no interpreter available I will require you to call a different referral agency. Make a note of my request in my medical records.

We can’t call another agency, we only contract with this one.

Who this hospital does and does not contract with is not my problem. I am the patient and have a right to effective communication and if the hospital cannot provide it with the agency it uses it needs to contract with a different agency. Make a note of that in my medical records.

Do that each and every time.

If they refuse to document it then as soon as possible make a request by email to the hospital’s Office of Customer Service or Risk Management Officer that you made the request I explained above and that your nurse/doctor refused to document it in your record. Use the names of the specific people you spoke to as often as possible.

One last point, and I can’t stress this enough. Never say “I prefer a Live In Person interpreter” or “I don’t want VRI” or “I don’t like VRI.” That says to the hearing people that is just a choice you are making. The magic words are, “I need” or “I require a Live In Person Interpreter for effective communication (that comes right from the law).

Random Thoughts From Uncle Dale: The ADA 29 Years and Counting.

A couple of weeks ago Shelby Hintze, a television producer and the daughter of my cousin, asked me to review the script of a segment she was planning for a local Sunday talk show discussing the ADA’s 29th anniversary.

See if you can spot the part that I helped write, Grin.

https://youtu.be/FtMyIQU35r0

(The prepared video transcript. I am working on a transcript for the live portion.)

Voice of Shelby Hintze

According to the 2010 Census—nearly 20 percent of the U.S. population has some sort of disability. That’s one in five people in this country. As the Baby Boomer generation ages—that number is expected to grow a lot.

Despite the sheer numbers, the unemployment rate for disabled Americans is nearly twice the rate of their able-bodied peers. But historically, that’s an improvement. 29 years ago—our country took a big step in the civil rights of disabled Americans when President George H. W. Bush signed the Americans with Disabilities Act—also known as the ADA.

Activists argued that people with disabilities were not as disabled by their bodies as they were by their environment. They had a right to access all the services of their able-bodied peers. King Jordan, the first deaf president of Gallaudet University, said, “We’re not asking for any favors. … We’re simply asking the same rights and equality any other American has.” In what is described as the biggest catalyst to the bill’s signing 60 activists left their wheelchairs and dragged themselves up the 83 steps to the U-S Capitol, in what’s called The Capitol Crawl. The bill was signed four months later. Since 2000, 181 countries have signed disability civil rights laws inspired by the ADA.

When we think of the ADA, we often think of improving access for wheelchair users. But it’s more than that. It offers protections for the deaf community, people who are blind, people with chronic illnesses.

One of the biggest misconceptions about the ADA is how it is enforced. The law is mostly complaint based. For example, while new buildings are required to have things like ramps, accessible restrooms, and Braille on signs—there is no one who checks these regulations and must be solved through mediation or court.  

For example–Under Title III of the ADA, Deaf people are promised “effective communication” but that really isn’t defined by the law. So if a Deaf person goes to a doctor for example, the doctor gets to decide what “effective communication” means. In this case, it could mean the doctor decides writing notes back and forth is enough–instead of using a certified sign language interpreter, which the Deaf patient may want. The Deaf person cannot do anything legally unless they can prove the communication was ineffective. That can be very hard to prove. If they do win the case, the Deaf person is then only entitled to another appointment with that same doctor, this time with an interpreter. Title III does not allow someone monetary damages beyond legal fees.

Just recently—a Utah family made national headlines after they were denied service at an Ogden restaurant because one of the children used a service animal. That was illegal. But outside of court, there is no way to actually make people follow the law.

The ADA did a lot to change the world for disabled people. But for many activists, it is just the beginning.

Random Thoughts By Uncle Dale: Decisions

Actual conversation with my boss in 1998, when I asked to adjust my work schedule to take classes to complete my BA:

Boss: Why?

Uncle Dale: Because i’m going to law school.

B: Why? You are a great interpreter, you have a good job and do you realize that when you graduate you will be 33-years-old?

UD: I will be 33-years-old anyway. I might as well be 33-years-old and a lawyer.

B: But you should have done that a long time ago. You’ve made your decisions in life.

UD: Know what? I can still make decisions. In fact here is a decision, I quit.

One of the best decisions I ever made.

Note from Uncle Dale: IEPs from RID Views

#uncledalesviews

https://www.rid.org/2018/11/a-note-from-uncle-dale/

Uncle Dale’s “You Probably Should Know”: Title II (Part One); First,You Have to Know This!

(Vlog to come!)

Hello everyone!  It’s been a while since this topic has been on the table. But. The fun continues!

Just to let you know I was going to do all of this in one post… but, I want to keep the vlogs to around ten minutes of less and WOW there is a lot to discuss here!

If you remember the vlog on Title I, you know we start Title II with a confusing question (if you don’t know what I mean go back and watch it! Seriously).

Title I of the ADA was passed by Congress using the authority of the 14th amendment and the Commerce Clause (we will discuss the Commerce Clause when we talk about Title III).

Alabama challenged Congress’ authority to obligate the States under Title I, because Alabama said there was no Proportionality and Congruence (oy! I get to spell that again!) in other words Congress failed to show that there was a history of discrimination by States that was pervasive enough to overcome the 11th Amendment (Sovereign Immunity).

Remember that the Congressional history cites like 50 or so pages of individual discriminatory acts, in alphabetical order, State by State.

Despite page after page in the congressional history documenting discrimination (if you don’t know what I’m talking about go back and watch Title I) the Supreme Court agreed with Alabama and gutted the application of Title I in regards to State employers (but not counties, cities or towns… it’s a federalist States rights thing… and not as Title I applies to private businesses, because Congress’ authority for private business came from a different place in the Constitution, the Commerce Clause-we will get there!)

So.

What about Title II?  Title II also burdens the States and also uses the authority of the 14th Amendment. ONLY the authority of the 14th Amendment!  So if the Supreme Court decided that Title I was a no go… what about Title II?

Therein lies a story.

After Title I went south those attorneys who, like me, fight for the civil rights of people with disabilities were, how to put this… losing their cool.  If the 11th Amendment is king (ha! pun!) then Title II could go away forever!  All of it.  So the search was on for the perfect Plaintiff. Someone who the Supreme Court could not refuse (or the public would identify with).

Maybe a camera ready, noble single mother between 23 and 33 with two adorable waifish children who was refused a vital government benefit or service by an evil government functionary because of her disability…

What we got was George Lane.

Lane used a wheelchair for mobility after a 1997 car accident in which he was accused of driving on the wrong side of the road. A person was killed in the crash, and Lane faced misdemeanor charges of reckless driving.  Needless to say, he was not the Plaintiff they were looking for.

His Title II case arose because when he showed up for court at a venerable old Tennessee Court House.  Since the place had no wheelchair accessibility (no elevator), he would have had to resort to crawling up several flights of stairs arm over arm dragging his wheelchair to access the courtroom in which he was required to appear. When he refused to do so he was charged with failure to appear and jailed.

As I said, not exactly a “made to order” Plaintiff in the uncertain “post-Garrett” world and absolutely NOT what we were looking for-but his case is what was granted certiorari so that is what showed up in front of the Supreme Court.*

Tennessee made the same argument as Alabama; Congress had no authority to obligate States under the 14th Amendment because it failed to prove a history of discrimination by States toward people with disabilities; no Proportionality and Congruence.  Once again the Solicitor General of the United States pulled out the many many pages documenting discrimination, State by State, in alphabetical order.  This is the same list that the Supreme Court said was not sufficient to overcome the 11th Amendment for Title I.  The United States made roughly (Read as exactly) the same argument and the Supreme Court said… yes there is a sufficient history of discrimination to abrogate the 11th Amendment under Title II.

What? ok. What?  (take a deep breath…) think it through. What is the difference between the two cases?

The reason the Supreme Court found the list of historical discrimination insufficient for Title I but sufficient for Title II is simple- you have no Constitutional Right to a job

But you do have a Constitutional Right to access the Courts.  In the Sixth Amendment, its written right there.

But…

What does that mean for State entities that are not Courts?  What if it’s a State university that has discriminated? Or a State Hospital like the University of Alabama, only you didn’t want to work for them-so it’s not Title I-you wanted to access a benefit, program or service they offered? Does Title II apply then? Remember the Supreme Court said it found in Lane’s favor because of the Constitutional promises of the 6th Amendment… so does that mean you have to have a Constitutional violation to make Title II work?  The Supreme Court hinted that no, you did not, but then decided the next case involving Title II (US v Georgia, a prisoners with disabilities facing discrimination) in part because it involved 8th Amendment violations (cruel and unusual punishment).  As much as they hint that Constitutional violations are not required, this only Title II cases they have decided they attached to Constitutional violations.

Here is the real problem. If I was a State agency (but not a state court) and was reading the Lane decision I would think that it would in the best interests of my agency, from a strictly cost benefit standpoint, to deny any and all requests made for accommodations under Title II if there is no obvious Consitutional violation attached.

Think about it.

Look at the costs to my agency of providing interpreters to persons who are Deaf.  I can save that money in my budget by not providing interpreters.

Here is the analysis.

If I deny every request for and interpreter, not every person who is Deaf will have the will to file a Title II lawsuit to enforce their Rights; If they do, not every person who is Deaf will have access to the resouces to bring a Title II lawsuit to enforce their Rights; and if they have both the fire inside and the resources to bring a Title II lawsuit against my agency (can’t sue me personally under Title II), if there is not an obvious Consitutional violation (you have no Consitutional Right to most State programs or benefits) Title II may not even survive a challenge using the 11th Amendment defense.

Depressed?

Feeling like the law that you thought promised equity to persons who are Deaf is just mostly… worthless?  I cannot fault you for that, because the effectiveness of Title II is highly suspect outside of a Constitutional violation (please remember this is only an issue when it comes to States with a capital S, not cities or counties or towns…).

But…

Remember that Section 504 cannot be interpreted to provide less protection than Title II of the ADA if 504 covers the same subject matter as Title II.

Remember also that 504 applies any time a State agency accepts federal money.

Finally remember that following 9/11 the Department of Homeland security Made IT RAIN BABY! It would be a rare thing indeed to find a State agency that had not accepted federal funds.

Finally, remember that the courts have determined that by accepting federal money States have agreed to permit themselves to be sued under Section 504 and give up 11th amendment protections.

Whew.

We still need to talk about the Authority Congress used to pass Title II because despite all the problems I just showed you IT’S STILL GOOD LAW in every city, county, town, township, school district, water allotment board, zoning board, county animal control, county health department, library…

It’s worth knowing!

So. Title II and its Authority is next.

*there was in fact a second Plaintiff. A woman named Beverly Jones who is a court reporter who used a wheelchair and could not work in the second floor courtrooms for the same reason George Lane could not access them. I know what you are thinking, employment is a Title I issue and that is already not available to —- Ah. But —- is not an employee. She is an independent contractor. That is a different story and one that has a huge impact on interpreting.

We will discuss the issue of how independent contractors get protected under Title III in the very near future.

Note from Uncle Dale: The Lawyer Who Refused to Pay Young Uncle Dale; A Story With A Happy Ending.

Sixteen minutes ago I received a reply regarding:

https://uncledalesrulesforinterpreters.wordpress.com/2017/06/04/uncle-dales-you-probably-should-know-agreements/

The reply was from Marissa who wrote:

It’s someday, I’m asking about the lawyer that refused to pay…with the happy ending.

In the middle of the post I attached above there is and asterisk. The asterisk refers to a “post-script” in which I promised that I had a story with a happy ending that I would “someday” tell.

Marissa is right. It is someday. So here you go Marissa.

Many many years ago when I was a young interpreter (shortly after the earth cooled and carnivorous Thunder Lizards were still a common problem with the morning commute) I got a call from an attorney’s office.

This office was seeking, “a person to use Sign Language for a potential client.” The lawyer (I was in fact talking directly to the lawyer that first time) made a point of telling me, “I don’t think this case is going anywhere, but this hearing impaired guy won’t calm down about it.”

I got the date and time and then said, “You understand that I charge $10.00 per hour with a two hour minimum” (not a joke. It was the going rate).

“Uh-Huh,” the lawyer replied.

And just like that I had scheduled one of my first freelance appointments.

On the agreed day and time I showed up at the attorney’s office and interpreted for a little under an hour and a half.

I went home and sent my bill. About six days later I got a letter from the Attorney’s office which contained only my bill with the word REJECTED written across the length of it, corner to corner, in red marker.

So I called the lawyer and asked him what he was playing at.

“We never agreed on Terms of payment,” he said, “we had no ‘meeting of the minds.’

I was confused. I said, “we agreed on $10.00 per hour with a two hour minimum.”

“No,” the attorney replied, “you asked me if I understood that that is how much you charged and I acknowledged that I understood. I never agreed to pay it.”

I had to admit, he was right.

I was about to argue anyway, but he said, “son, if you think you are going to argue this point with me remember I’m a lawyer, I do this for a living, take the lesson and walk away.”

So I did. I walked away a little poorer, but wiser.

But then, three weeks later, my phone rang.

It was the lawyer’s assistant. She informed me that the Deaf Client’s case, rather than being nothing, had turned into something. Something BIG.

They had to secure a sworn statement from the Client and have it filed by 5 o’clock that day. There would be a person coming to take the Client’s statement in about an hour. She also told me that the Deaf Client was insisting on the same interpreter for this as I was already familiar with the subject matter and facts.

They wanted to schedule an appointment with me!

I pondered that for a second. Then I asked to speak to the lawyer. She told me he was very busy. I told her I was too, but I had taken the time to answer when she called to bother me.

She did not like that.

I then informed her that I planned to yell at someone. I had nothing against her personally, she seemed to be great at her job and appeared to be good with people, but I intended to complain. Loudly. Angrily, and without regard to the niceties. She could choose to be the target of what was shaping up to be a very ugly half hour to an hour of her life, or she could connect me with the person at whom I really wished to yell and avoid all that unpleasantness in her day.

She asked me to hold please.

In less than thirty-seconds the lawyer answered the phone, fully tuned-up:

L: ARE YOU THREATENING MY ASSISTANT.

UD: Yes. Thank you I’m glad she felt threatened. Means’ I did it right!

(That stopped him)

L: My assistant will schedule you and…

UD: That’s not why I’m talking with you. So listen carefully, you want me there this afternoon. Yes?

L: Yes?

UD: Then this is what will happen. Payment for today will be set in the same manner I explained previously; Ten dollars per hour, with a two hour minimum. Do you agree to these Terms?

L: (you could hear the smile right through the phone) Very good. You learned. Yes, I agree to those Terms as you stated them.

UD: When I walk in to your office there will be two envelopes on the receptionist desk, both will have my name on them and the first will be identified with a number one and the second with a number two. Are we agreed on the Terms thus far?

L: Yes.

UD: Inside the envelope marked number one will be a Bank Cheque or cash in the amount of $20.00. This will pay for our previous appointment.

L: Son that is dead and gone…

UD: And miraculously it will rise again, in an envelope on your receptionists desk, in a little over one hour’s time. Do we understand each other.

L: Uh-Huh.

UD: Do you agree to all Terms as I have stated them?

L: And if I don’t?

UD: Then find yourself another boy. You have about an hour. Good luck.

L: You know you have me over a barrel.

UD: I learned from the best. Do you agree to all the Terms thus far as I have stated them?

L: Yes.

UD: Good. Now in the second envelope will be a Bank Cheque or cash in the amount of $20.00 to cover the two hour minimum for today’s appointment.

L: But what if taking the statement requires more than two hours?

UD: When I arrive I will pick up the envelope marked “One” and put it in my pocket. I will leave envelope number “Two” in the receptionist desk. At the conclusion of today’s meeting, if it is less than two hours, I will take the second envelope with my payment inside and leave. If it goes past the two hour mark I will charge, and you agree that you will pay, $10.00 per hour (beyond the two hour minimum you have already agreed to pay) divided into quarter hour increments. Before I leave your office you will either: secure a new Bank Cheque for the proper amount to pay me in full for today’s appointment; or, you will pay me the difference between the payment held in envelope “Two” and the amount I’m owed in cash. Do you agree to all the Terms as I have stated them?

L: I’m not comfortable with the second envelope.

UD: I am not negotiating, I am laying out Terms. It’s take it or leave it time. So. Do you accept all the Terms as I have stated them?

L: Yes.

UD: Good. Then I will be on my way.

So I drove to the Attorney’s office and on the receptionists desk was one envelope with my name on it and the date of the previous appointment.

I picked it up, I put it in my pocket and I left.

This was in the days before cell phones. So when I got home there were already a couple of messages from the receptionist and the phone on the wall in my kitchen was ringing.

When I answered the phone the lawyer was already yelling and demanding to know where I was.

UD: You cancelled today’s appointment.

L: Who cancelled it?

UD: You did. When I walked into your office there was only on envelope. You violated the Terms of our agreement so you cancelled the appointment.

L: I never agreed to that!

UD: But you also never added your own Terms. I just said that I was not negotiating my Terms. I never said you could not insert your own. Had you wanted a clarification of the results of any person’s violation you could have inserted it.

(Silence)

L: Will you please come back I will have the second envelope ready…

UD: You mean along with the new envelope, let’s call it envelope “Three”?

L: I don’t follow?

UD: The payment for today’s second appointment. I came to the first appointment and, if you remember, you agreed to a two hour minimum. Meaning when you cancelled the appointment you still owed me for showing up. So the envelope from today’s first appointment (number two) and the envelope containing the payment for the appointment you are currently asking me to come to your office and interpret. That is a new appointment.

(Long pause)

L: You learn fast

UD: Take a lesson old man.

*****

When I got to the lawyers office there were two envelopes.

I worked the entire case under the same Terms.

When I applied for law school the attorney wrote me a letter of recommendation.

There you go Marissa. Enjoy.