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Places of public accommodation must give persons with disabilities an equal opportunity to participate in and to benefit from their services. They cannot provide unequal or separate benefits to persons with disabilities. They must modify their policies and practices when necessary to provide equal access to services and facilities.
In order to provide equal access, all public accommodations are required to provide auxiliary aids and services to ensure effective communication. 28 C.F.R. § 36.303(c). The ADA also requires removal of structural communication barriers that are in existing facilities, and installation of flashing alarm systems, permanent signage, and adequate sound buffers. Businesses may not impose a surcharge on a particular individual with a disability to cover the cost of ensuring equal access for that person. 28 C.F.R. § 36.301(c).
Businesses are expected to “consult with the individual with a disability before providing a particular auxiliary aid or service.” 56 Fed. Reg. at 35567. A comprehensive list of auxiliary aids and services required by the ADA for deaf and hard of hearing people includes, but is not limited to: “[q]ualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunication devices for deaf persons, videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments.” 28 C.F.R. § 36.303(b)(1).
In choosing which auxiliary aid or service to provide, the most important consideration is the type of service that will be necessary to ensure "effective communication" with an individual who is deaf or hard of hearing. For example, in addition to providing a qualified interpreter, it may be necessary to change seating arrangements or lighting so that there is a clear line of sight to the interpreter, and so that the interpreter is clearly visible. Businesses may need to instruct employees to accept calls made through a relay service, even though such calls may take longer to complete than other telephone calls. Policies and practices may have to be altered in order to provide access. For example, a business that normally would not permit a customer to bring a pet on the premises must give access to a person with a service animal.
A public accommodation may deny an auxiliary aid or service only if it can demonstrate that it would fundamentally alter the nature of the service, or would constitute an undue burden (a significant difficulty or expense). If the public accommodation is able to demonstrate that there is a fundamental alteration or an undue burden in the provision of a particular auxiliary aid or service it must, however, be prepared to provide an alternative auxiliary aid or service, where one exists. 28 C.F.R. § 36.303(f).
Whether or not a particular auxiliary aid or service constitutes an “undue burden” depends on a variety of factors, including the nature and cost of the auxiliary aid or service and the overall financial and other resources of the business. The undue burden standard is intended to be applied on a case-by-case basis. Undue burden is not measured by the amount of income the business is receiving from a client, patient or customer. Instead, undue burden is measured by the overall financial impact on the whole entity. Therefore, it is possible for a business to be responsible for providing auxiliary aids or services even if it does not make a sale or receive income from a deaf or hard of hearing customer, if the cost would not be an undue burden on its overall operation. We are not aware of any court decision that has held that providing interpreter services resulted in an undue burden.
The cost of interpreters and other auxiliary aids and services may entitle a business to an income tax credit, as well as the usual business-related expense deduction. Congress has amended the Internal Revenue Code to provide business tax incentives for removing barriers or increasing accessibility. The "Tax Deduction to Remove Architectural and Transportation Barriers to People with Disabilities and Elderly Individuals" (Title 26, I.R.C. Section 190) allows a deduction for qualified barrier removal expenses not to exceed $1500 for any taxable year. The "Disabled Access Tax Credit" (Title 26, I.R.C. Section 44) is available to eligible small businesses. It provides a tax credit of 50 per cent of eligible access expenditures that exceed $250 but do not exceed $10,250, made for the purpose of complying with the ADA. Businesses should consult their tax or financial advisers on this issue.
The public entity, no matter whether they are a profit or non-profit organization. This especially holds true for any public entity who receives any kind of Federal funding (including Medicare/Medicaid).
Can I use a family member or a friend to interpret?
Using a family member or a friend to interpret could be a liability issue for several reasons:
- 90% of the parents of Deaf persons never learn more than a minimum of the language and culture of the Deaf.
- Family/friends are not bound by a Code of Professional Conduct and, no matter how well intentioned, may not relay all the information to
the Deaf client: "in order to protect them," "to prevent them from becoming upset," "I take care of them, they don't need to know that!" or
the ever popular "they wouldn't understand what you said anyway."
- Family/friends may not relay information that may involve themselves, thus editing the conversation of potentially valuable information that
may influence the outcome of the meeting/Dr. visit.
- Many people, including family and friends, still view the Deaf as incapable of making decisions, no matter how smart, independent, or what
college degrees the Deaf person may have earned.
- Using family/friends to interpret, more often than not, limits the Deaf person's voice and may taint the communication process .
- Just because someone is related/friend does not mean they have the vocabulary, linguistic skills, full understanding of the language and
Deaf Culture OR the ability to convey the necessary information in its entirety and without prejudice.
- HIPPA Laws are set up to protect patient privacy. By using a family member or a friend, the Deaf person is FORCED to share information
that any other patient would be allowed to share at their discretion.
- Family members/friends are not typically held as the "responsible party" in the eyes of the courts when a miscommunication issue leads to
litigation, instead it is the public entity that is held liable.
Where can I find more information on accessibility laws pertaining to the Deaf and my business's role in providing accommodations, something in layman's terms?
You will find an excerpt from the National Association of the Deaf website in the bordered segment below. Additional links will be listed at the bottom of the page.
Are there any incentives for my business to provide services?
Yes. There are some instances that allow for services to be deducted as an operating expense and some instances that allow for additional deductions through Title 26 I.R.C (more info below)
Developed by the U.S. Department of Labor's Office of Disability Employment Policy (ODEP). A handy desktop reference guide that can assist employers and others in proactively integrating people with disabilities into an organization's workforce. Please pass it to your employer, co-worker or your boss!
print out this page and carry it in your purse or wallet. When you go to the doctor or hospital and ask for an
interpreter and that doctor or hospital says you have to provide your own interpreter...show them this page. Below are 2 excerpts:
"U.S. Attorney’s offices across the nation are partnering with the Civil Rights Division to target their enforcement efforts on a critical area for individuals with disabilities through a new Barrier-Free Health Care Initiative...."
“These settlements ensure that deaf and hard of hearing patients can communicate with their doctors and obtain equal access to medical treatment, especially at critical moments in their care,” said Barbara McQuade, U.S. Attorney for the Eastern District of Michigan. “This nationwide initiative emphasizes that disability discrimination in health care is illegal and unacceptable.”
Posted Friday, February 6, 2015 By Grant Laird Jr on the Deaf Network
The State Bar of Texas has created a new service available to lawyers throughout Texas to assist them with meeting their effective communication responsibilities under the Americans with Disabilities Act (ADA) and to ensure that all Texans can access legal assistance that meets their communication needs. Through the newly-created Communication Access Fund, lawyers can seek reimbursement for auxiliary aids and services they have provided to clients who are deaf/hard of hearing or have a visual disability.
The fund provides reimbursement for services such as sign language interpreters, Computer Assisted Real-Time Transcription (CART), braille documents, readers, etc., provided to ensure effective communication with clients.
The Disability Issues Committee of the State Bar is also collaborating with the Legal Access Division of the State Bar to provide education to lawyers on effective communication requirements under the ADA.
For more information on the Communication Access Fund, training offered by the Disability Issues Committee, or how to find qualified sign language