Uncle Dale’s “You Probably Should Know”: Where Do Section 504s Come From?

So the other day three people, a student who is Deaf, a hearing student who knows some ASL and an interpreter came to my office to ask some questions.  In the middle of a great discussion on many topics related to education they, as a group asked:

“What is the difference between the ADA and Section 504?”

That is a good question. The answer is A LOT! For example one is three letters and one is three numbers.  So, can you be more specific?

After a little negotiation to help them frame the actual question (many people would be shocked, I think to realize how often helping students figure out the question is much more important than helping them find the answer) they decided that they wanted to know why a person would choose to use 504 and not the ADA, or the ADA and not 504 or, you know, both at any given time. 

Now that is a question I can answer! It gives me some direction and I can do it… but not in one go.  We are going to be on this topic for a while. 

Ok, you remember how as a kid you had to eat your vegetables first. You wanted dessert but you had to get through the stuff that is good for you first?  

There are answers you want! Now.  You want them right now! You are itching for them, and I could give them to you. But without context the answers I give will be interesting but not helpful. All sugar and no vitamins. 

I am going for helpful. Sorry.  It’s what I do. 

If you want to know the how and when of 504 being useful, you have to start with why.  Why is 504 in the first place.

You have to start with Authority.  So. Here we go.

The 10th Amendment to the Constitution says that Congress can only pass laws on issues or matters that the Constitution specifically gives them the Authority over.  If the Constitution is silent then… no. No Congress can’t.  

If Congress “can’t,” then the authority over THAT (whatever THAT is) is reserved solely to the States (that’s States, Utah, Mississippi, Iowa, Massachusetts…)

So pop quiz hot shot! Where in the Constitution does it give Congress the authority over people who are Deaf? Or over Disabilities?  Go ahead and look for it.  I’ll wait.

Hint? It doesn’t. 

So… how?

Authority is a strange animal.  It lives in various climates and walks on many planes.  That sounded more mystical and shaman like in my head.  Whatever.  

Taxes

Taxes are where Congress gets its authority to pass a law like 504.  Article 1 Section 8 of the Constitution gives Congress the authority to collect taxes and to expend money.  If you can do that then you can choose upon which items you will spend the money.  It’s called “Carrot and Stick” policies.  

Here is an example.  Back in the late 1960s and early 1970s America was in the middle of a gas crisis. The Feds (read Congress) wanted everyone to drive 55 mph. But the Constitution does not give Congress the authority to force States to do that–or anything really. 

So, it came down to money.  

If a State set their speed limit at 55 mph they got federal highway funds (carrot) and if the State did not, they got no funds (stick). 

I’ve also seen that idea explained as the carrot dangling from the stick, like the old cartoons where the prospector tries to make the stubborn mule walk. Either way it works. (Edit added after video)

This is the same reason why all States now have laws saying you have to be 21 to buy alcohol,  and 18 to vote. If States adopted those laws they got funds for drunk driving prevention programs and police equipment and new voting machines. Get it?

So that is the authority Congress used to pass 504. But with 504 the authority attaches to everything. If you accept federal money for almost any thing you can’t discriminate against people with disabilities, according to 504.    

Next problem, the whole of Section 504 is about a paragraph long. Seriously that’s it.  So it has no room for explanations of what discriminate means, or who a person with a disability is or even what it means to accept federal funds

So, all the different Executive Agencies made their own Regulations, basically wrote their own definitions of all those things.  

If you want to know what discriminate means for a hospital you must look to the Regulations from the Department of Health and Human Services and not the ones written by the Department of Education… unless it is discussing a student who is hospitalized long term.  How does the term Disability apply in an employment setting? The EEOC has the regulations for that, but not if you are an independent contractor, for that the Department of Justice wrote the Regulations. And so on.  The Regulations often are similar but rarely the same. 

Yes, it’s labor intensive, confusing and… mistakes are made. Grin. 

Next problem, what does mean except federal funds. Also sometimes a little confusing. 

With State agencies and other executive branch government entities you can usually be pretty sure they accept federal funds under 504, particularly after 9/11, because the Department of Homeland Security made it rain!  

Many private businesses also accept federal funds in fact more than you would think. For example hospitals clinics and doctors that accept Medicare and Medicaid are accepting federal funds. Private colleges and universities who accept federally subsidized student loan’s are excepting federal funds (even the local college of massage therapy or the college of hair design if they get federally subsidized student loans). 

There are some weird limitations to whether 504 applies in some stipulations but not as many as the ADA. For the most part “youse takes the money youse follows da rules.”  The weird stuff I will discuss it all later vlog. 

Ok here we are, authority.  This you will find out is the magic key you need to make 504 work.  If you know that the entity accepts federal funds BANG your in… if you know which Regulations apply.  

The ADA is not so straight forward.  We will talk about that later too.

Finally, an interesting problem that has been solved (just to give you hope).  when Section 504 of the Rehabilitation Act of 1973 was passed it did not have a great deal of clarity on how it was to be applied (you may argue that is still true). So universities, for example, argued that classrooms didn’t accept federal funds and so they didn’t have to be accessible, only the office of student loans accepted federal funds so only that office had to be accessible. Courts agreed.  No joke.

Congress fixed that problem in the late 1980s by passing a statute called the Civil Rights Restoration Act that said if you except federal money in one area of your entity it covers everything that benefits from the money. So in a practical sense, everything.

There you are, quick and dirty on the authority Congress used to pass Section 504.  Next we’re going to talk about the ADA. The authority for the ADA will take at least three vlogs. Yeah, it’s that complicated.  But we’re done you will understand enough that you can take advantage these laws, know how each is applied and you should have an idea  at least as to when it’s best to use one over another… or both!

Remember! Uncle Dale’s Rules may be informative but it is not a substitute for legal advice. If you want information on any of the topic contained herein please talk to a lawyer in your area.

Rule 332

CPC compatible answers to the question, “How was your day?” (An on-going series):

Well, first thing this morning… wait, did you cut your hair? It is so cute! When did you do it?

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.

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 NOR DOES IT EVEN OBLIGATE THE DOCTOR TO ASK OR LISTEN WHEN ASKED. It says the doctor “should” consult with the person who is Deaf, but does not make failing to consult a factor in discrimination.

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 begun including new language in these Consent Decrees stating that the definition of “primary consideration” now requires that the government entity ask the person who is Deaf what kind of accommodation the Deaf person needs*.

Think about that.

Prior to that language being added 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 person didn’t ask… too bad!

Now, keep in mind that is not the current interpretation of the rule in general; it only applies to the Consent Decrees in which it is included. But, if that language is an indication of the DOJ’s intent regarding how “primary consideration” should be interpreted, if it 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 who does ask… the law just says it should, not that it must.

Section 504 has always been somewhere in the middle of the two extremes of Title II and Title III. 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. That pulls it even closer to the weaker standard of Title III.

Now. After all that build up 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.” In most situations if 504 is applied to a private company that, but for federal funds, would be under Title III then Section 504 mimics the standard of Title III (they “should” ask the person who is Deaf, not “must”).

Here is the kicker, ready?

Obamacare has a section called the Non-Discriminatory Rule or Section 1557.  Section 1557 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 for private hospitals that accept federal funds (even if but for federal funds the standards of Title III would apply).

That can be interpreted to mean that hospitals and doctors must give the Deaf patient the accommodation they ask for (or maybe even ask the Deaf patient what you want) remembering that VRI and live interpreters are listed as separate auxiliary aids under the law, and if they don’t the court will make the medical provider 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.

http://www.refinery29.com/2017/01/138465/how-to-call-senator

Note from Uncle Dale: HR 620 

Hello One and All!  It’s your Uncle Dale.  This morning I was on a Radio Show discussing my concerns with HR 620 (there is actually another Bill that could be just as bad, but it has no text currently-just a name HR 1493) and I realized that I should really take a minute and send out a warning to all of you.

As you may or may not know I have strong opinions about the weakness of the ADA when it comes to protecting the rights of people who are Deaf (I believe the term I used this morning was “barely functional”). This legislation would pretty much end the ADA’s thin layer of protection for the Deaf community.

The bill proposes to change Title III to say this:

(B) BARRIERS TO ACCESS TO EXISTING PUBLIC ACCOMMODATIONS.—A civil action under section 302 or 303 based on the failure to remove an architectural barrier to access into an existing public accommodation may not be commenced by a person aggrieved by such failure unless—

“(i) that person has provided to the owner or operator of the accommodation a written notice specific enough to allow such owner or operator to identify the barrier; and

“(ii)(I) during the period beginning on the date the notice is received and ending 60 days after that date, the owner or operator fails to provide to that person a written description outlining improvements that will be made to remove the barrier; or

“(II) if the owner or operator provides the written description under subclause (I), the owner or operator fails to remove the barrier or to make substantial progress in removing the barrier during the period beginning on the date the description is provided and ending 120 days after that date.

“(C) SPECIFICATION OF DETAILS OF ALLEGED VIOLATION.—The written notice required under subparagraph (B) must also specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, the specific sections of the Americans with Disabilities Act alleged to have been violated, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.”.

Understand the problems this causes.  1) Right now, often the only reason a company takes any interest in whether or not it is ADA compliant is because if it does not, it can be sued at any minute.  It therefore behooves said company to be proactive in its compliance with the ADA.  But if this Bill becomes law, no business need worry about investing one moment of thought in its complaince becuase unless and until its get a letter, it has no risk of a suit. If it recieves a letter the business has another four months to address any actual possible changes if it writes a letter back after 60 days. This will effectively end any personal responsibility by companies for their own accessibility; 2) The responsibility on enforcing compliance has, more or less, always been with the persons protected by the ADA (people with disabilities) but now they are turned into unpaid federal inspectors. Not only are they faced with a barrier but they must be able state chapter and verse the specific sections of the law that were violated and verify that they already requested the business to comply (which, if you think about it makes the letter redundant because they have already made the request); and, 3) It is not enough under this Bill for a person with a disability just to have noticed non-compliance or a barrier to access, the persons who are supposed to be protected by the law now must be able to specify in detail how they were actually denied access (this is insidious wording as it goes beyond just the idea that the business was not compliant, a person with a disability must defend that the lack of compliance actually denied them access). Think about this. What other law do you know where in the law says “businesses must X” and you see a business that has not X, but the law is not effective until the business has caused you injury personally by not X.

Think of a business that has exposed wiring but you cannot complain about it unless you get shocked and then warn the business. Or is structurally unsound but is not required to fix it unless it collapses on you. Or has rats running around in the kitchen but you can’t file a complaint unless it made you personally sick. You see a business that is not ADA compliant you can’t file a complaint unless you can show that you needed to patronize that business and couldn’t. Their defense is, “you could have just ordered it online we did not have to serve you.” Even if I see a store that sells something I will need but do not need today, I must go to the store and actually be denied access prior to beginning the process to enforce compliance.  Or lets suppose that I want to go to a resort and I can see from the pictures is not compliant, I may not be able to begin the process of enforcing compliance until I go on my vacation because:

a) I have not actually been denied access until that moment; and,

b) I have only seen pictures and my not have a complete idea of the full extent of the violations.

It takes the ability to fix an issue prospectively and relegates it to retroactive. In one way it places other disability groups in the disfavored position that persons who are Deaf have faced since the ADA became a law.  They have never had a good avenue to fix an issue before injury under the ADA. But now…

Looking specifically at the Deaf community.  If a person who is Deaf has a doctors appointment and requests an interpreter and the doctor says no (we’ll just write back and forth… it’ll be fine I do it with all my hearing impaired patient’s) the Deaf person will currently lose if they sue, because the law does not give them any authority to choose their own auxiliary aid and does not afford a right to an interpreter, only effective communtation (I know you only communicate in ASL and writing has never been effective to you at any time… but who knows this time it just might work!) So the “Futile Gesture” doctorine is all but unavalible to persons who are Deaf (yes, the irony of something called the futile “gesture” doctorine being unavalible to people who are Deaf has not escaped me!)  So, the patient who is Deaf must actually go the appointment and have communication fail.  Once that is done the person who is Deaf must, of course, request an interpreter again. If the Doctor refuses… NOW the Deaf person can sue.

If the HR 620 becomes law, the Deaf patient can write a letter to tell the Doctor the exact section of the law the doctor violated and then wait four months to see if the Doctor will or will not provide the interpreter before they can sue.  That is just as good as taking the razor thin protection the ADA somewhat affords currently and trashing it.

Please write your representative in Congress to say NO to both the ADA Education and Reform Act of 2017, H.R. 620, and the ADA Lawsuit Clarification Act of 2017, H.R. 1493! Look here to download a template letter from NAD (make the changes necessary if you are an interpreter so it matches your role and you can find your Representativehere.

Do it today!

HOWARD: Hi! Some of you may have noticed the trending hashtag: #protectADA. You may wonder why the ADA needs protection. That’s right, right now, there is a threat to the ADA. Some of you may remember my AHA video last September about a House bill, the ADA Education and Reform Act, with a different bill number because it was submitted during the previous Congress term – and it failed, luckily. However, the bill has returned with the same language with a new bill number in this new Congress term. Another Representative submitted a second bill on the same issue. The ADA Education and Reform Act’s new bill number is H.R. 620. The other bill uses similar language and is known as the ADA Lawsuit Clarification Act, H.R. 1493. Both bills are similar to each other and to last year’s failed bill. These bills ask that a deaf person or a person with a disability who experiences lack of access to a business, restaurant, hospital, and other places cannot file a complaint or lawsuit right away. They must first send a letter about the lack of access to the business. The person must send the letter and wait for accommodations and changes to be made. Then if there are no accommodations or changes made the second time, the person has the right to file a complaint or sue. This does not make sense because the ADA was passed in 1990, 27 years ago, and everyone should already know how to follow the ADA after so many years. The bill failed last year yet people are trying this again. We must stop them by letting them know these two bills are not okay. Whether you send via letter, email, fax, or social media – use the template we provide and send that to your Representative. The new template is modified from last year for you to use for the two new proposed bills. Download the template, add your name and edit the text with your information, and send! We need your help to ensure these bills will fail. Congress must know why the ADA is important to us and to protect our rights. #protectADA. Thank you.

Video fades to a soft white background with several different font types showing “NAD” very quickly. Copyright video ends with the National Association of the Deaf (NAD) logo centered. Blue text below the logo appears, “A production of the National Association of the Deaf (copyright) 2017 All Rights Reserved”.