Uncle Dale’s “You Probably Should Know”: Living Wills

Hey everyone!  So last week a former student/current rocking interpreter asked me over Facebook how to interpret the term “Living Will.” This of course set off a firestorm of opinions on leaving it to the lawyer/doctor/other person to explain what is means or the Deaf client to ask what it means.

Totally not getting into that discussion.

But, I will say it never hurts to know what it means yourself, because you are going to have to interpret it (no matter who digs for the deeper meaning), and if you are relying on an attorney to say anything that anyone but another attorney would understand you have not met many of us!  We suck at explaining… bad… way bad!

Anyway, the real problem with the term “Living Will” is that if four people say it there will be seven different meanings intended–“Living Will” is the Aloha of testamentary terminology, people use it to mean everything.

So lets go through what we are talking about: What happens to my stuff after I die and myself while I die.

Trusts.

There are two kinds, Intervivos and Testamentary. Intervivos holds your stuff while you are alive and is usually revocable (you can change it or get rid of it while you are alive) but becomes irrevocable when you die… cuz you’re dead.  Testamentary Trust are set up by another instrument, like a Will, and only are declared after you die.

Both of them hold your stuff as if they were legally a person.  Trusts are usually set up with specific rules like “this is to be used for my kids education” and so living or dead that is what the trust can be used for.  Most are time limited so if anything happens to you the Trust will do its thing until the kids are 22 or 23-years-old (I never advise a client to make the Trust distribute is corpus to a 21-year-old because I knew me when I was 21-years-old).  Lots of people want Intervivos Trusts, fewer people need them.  The tax advantages only kick in north of 5 million dollars.  They are good for multiple marriages and kids from each marriage.  Testamentary Trust established by a Will are good for people with young kids.

A Will.

Like a “Last Will and Testament” Will.  This is good for making sure all your stuff gets to the people who you want it to go to when you die.  These days most stuff passes through an “extra-testamentary” document–as a beneficiary of an insurance policy or joint accounts or joint tenancy in the ownership of a house. A Will catches everything else so there is no dispute as to who gets the stuff.

A Living Will.

When people say Living Will they could mean any number of Advanced Directives (directions you give before something happens).  An ACTUAL Living Will gives instructions of what you want done or not done medically if you are unconscious or otherwise unable to give competent instructions as to your wishes.

A Medical Power of Attorney or Healthcare Proxy (sometimes called a Living Will) designates a person to relay your wishes is for some reason you cannot do it yourself.  Not their wishes for you but having told them what you want they accept the responsibility to relay your wishes.

Then there is a DNR-Do Not Resuscitate.  Just like it sounds, if certain conditions are present just let me go.

There you go! and remember Uncle Dale’s Rule may be informative but it is not a substitute for legal advice.  If you want information please talk to a lawyer in your area.

 

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.