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.)

Rule 295

The core of interpreting is love. Love is why we all started this journey, love is why we stay on this path, love is what we will remember as our lives end.

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

Rule 284

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

Note from Uncle Dale: The Mind of Tommy Westphall

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

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

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

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

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

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

Ok?
Ready?

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

I only exist in the mind of Tommy Westphall.

And by extension, because you are reading this you are crossing into my universe… meaning you only exist in his mind too!

You’re welcome.

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

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

Note from Uncle Dale: A Harsh Examination of the Interpreter  

So, you ask, Uncle Dale who are you… I mean in relation to the Deaf Community.

Good question.  I can only answer for me and certainly not for the Deaf Community.

As I see me, I am a facilitator of communication. I can be an ally, when it is appropriate (sometimes it’s not-sometimes what I see as ally behavior is actually Audism. All of my passion and experience and fluency does not save me from the things my hearing privilege hides from me).

Sometimes… sometimes I am a necessary evil (mental health treatment should not be interpreted–it should only happen directly in the language of the person needing therapy-oh and education as well. But this is not the world in which we live).

I am not the savior of the Deaf Community. I’m the hired help.

I must always remind myself that the Deaf Community was resisting Audism before I got here and will still be fighting it long after I’m gone.

I am not needed. What is needed is the work I do.  The work I do is needed and always appreciated, but sometimes the appreciation is… grudging; and that is fine. The Deaf Community does not need to love me AND THAT IS FINE.  I don’t have any say about how the Deaf Community should or should not feel about anything.  I can only make observations on what I see and how I feel, but I have no power to dictate how anyone else SHOULD feel.

There is a level of ambivalence that always seems to exist between me and the community I love and serve. I exist in world where my work is greeted with appreciation and frustration at the same time. It is entirely possible to hold two varied feelings about the same thing with no contradiction. In other words you can feel conflicted without it being a conflict.

Why? Well. I think of it this way. Imagine that, in order to breathe, you must employ the services of a person who touches the end of your nose-a certified nose toucher.

Now, it may not be that you can’t breathe, but in order to breathe effectively, and specifically at times of stress or when breathing effectively is vital, the services of a professional, certified “nose toucher” is needed (can’t do it for yourself, oh and you have horrible memories of the education system trying to teach you to touch your nose with your elbow, and everyone seems to have a suggestion of installing dubious microchips in your nose, but I digress).

So how would you feel toward the “nose toucher?” You would of course appreciate the “nose toucher” each and every time you took a clear and effective breath. But, you would also resent the fact that you had to depend on this other person for something so basic as breathing, that the world as it is forces this reality.

You would surely be angry each time someone talked to the “nose toucher” instead of you, as if you were unable to think instead of breathe.

Out of necessity you spend time with your “nose toucher,” and so you may develop “a relationship,”  sometimes beyond the realm of “nose touching,” maybe even a friendship.  But, that can lead to problems of its own. A blurry line between friend and professional can be dangerous.

Of course sometimes you will be assigned a “nose toucher” that you just do not like.  That’s a whole new level of frustration.

In the end no matter how much you appreciate the work of the professional, certified, “nose toucher” and even despite perhaps liking some of the “nose touchers,” they are people you MUST be with, not people you choose to be with. Every time they do their job you are grateful for it and also reminded of the fact that you are dependent on them. Appreciation and frustration. Sometimes you just want to go into the bathroom all alone and just choke. Sometimes you would rather just choke.

This is the way I imagine it, but I may be way off. Even if I am exactly accurate in my observations, people who are Deaf have every right to this feeling of ambivalence and it does not diminish the importance of what I do or my love of doing it. For me, recognizing it just keeps my head in the right place so I can do it my job effectively.

Who am I in relation to the Deaf Community? I am as helpful as I can be, as often as I can be. Nothing more nothing less.