If you are concerned that your interpretation is being recorded on video, you should not be interpreting this police interview.
The reason it’s taking so long to interpret the Miranda rights is, this is how long it takes to interpret the Miranda rights.
(Miranda rights is a placeholder for whatever it is they are complaining about)
Nope. The ADA does not say that.
(Not even if you clap your hands and say “I do believe it requires interpreters.”)
Things Uncle Dale did that you probably should not (on-going):
Let me get this straight. You’re not offering to pay me for the convention, you’re saying I get in free to any events that I interpret? I get to work in exchange for being there.
Wow. Let me unpack your central flawed assumption. In essence you’re just a guy in a bar saying to an attractive woman, “But I’m offering you the chance to have sex with me for free.”
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.
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 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).
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.
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
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.
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 of 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 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 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. 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.