An Open Letter To Congress About Hearing Loss And Health Care Reform

Dear Member of Congress, 

 As someone who has a hearing loss, I am contacting you to discuss several issues related to the current attempt to fix health care in America. I understand that lawmakers like to read short letters from their constituents on matters that are important to them and I will try to be brief regarding in my request to consider the needs of people who are Deaf or hard of hearing when reforming health care. 

Section 1557 of the ACA

Although I am not a fan of the Affordable Care Act (ACA), there is one section of the law that is extremely important to those of us who have a hearing loss. The ACA has a section called Section 1557, which is also known as the “nondiscriminatory rule.” This section 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. This standard is the same as Title II of the ADA “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. 

This section is important because Deaf people often have to fight with doctors and hospitals to obtain a live ASL interpreter so that they can get the effective communication they need to understand the medical advice from the medical professional that they are meeting with. 

If Congress ever gets around to successfully repealing ObamaCare, then Section 1557 goes away which means people who have a hearing loss lose out on an important protection that the law provides to us. 

I support the idea of replacing ObamaCare with legislation that supports the free market in making healthcare affordable to the public. However, please ensure that the language and protections of Section 1557 remains in place in the new health care law. 

OTC Hearing Aid Act

The OTC Hearing Aid Act (OTCHAA) is a bipartisan effort to make it easier for people with hearing loss to purchase hearing aids. The OTCHAA is being proposed by by Sens. Elizabeth Warren (D-Mass.) and Charles Grassley (R-Iowa) in the Senate (as S.670), and Reps. Joe Kennedy III (D-Mass) and Marsha Blackburn (R-Tenn.) in the House of Representatives (as HR 1652). 

The OTCHAA is a free market solution to the problem of making hearing affordable to all individuals with a hearing loss. At $2,500 apiece, hearing aids are beyond the reach of many Americans --- especially seniors who are most likely to need them (among people 70 and older, two-thirds have a hearing loss affecting their daily conversation). The cost of hearing aids is not covered by Medicare, or by most insurance companies.

Currently, Six firms (only one of which is based in the U.S.) dominate the hearing aid market, producing 98 percent of all devices sold. New market entrants are rare for a number of reasons, including most importantly, regulations that restrict hearing aids to only being sold by hearing professionals. Distribution is effectively blocked to newcomers due to close relationships between existing manufacturers and those professionals (audiologists, hearing aid dispensers, and physicians). In this low-competition market where professionals serve as the gatekeepers to hearing aids, innovation is slow to reach patients and hearing aids remain expensive. 

By opening the market to OTC aids, manufacturers of consumer electronics -- from giants such as Apple and Samsung to small startups --- could enter the hearing aid space and sell directly to consumers. Hearing aids could be sold in a number of venues, including pharmacies, grocery stores, and other retailers. We now have over the counter reading glasses and over the counter pain killers and over the counter flu medicines. These options don’t prevent people from getting prescriptions for the heavier drug dosage or more personalized contacts and eyeglasses. Thanks to the internet, consumers are much smarter and cost-conscious about what their range of choices are than 20 years ago.

Passing this law would help make the cost of obtaining hearing devices easier for those who have mild to moderate hearing loss. It would also help those who have severe to profound hearing loss obtain hearing aids because it would drive down prices for all hearing devices by increasing choice and competition. 

The other upside of this bill is that it would direct the FDA to come up with safety and effectiveness standards for these new hearing aids because there are dozens of the devices on the market, but their quality varies wildly and there's no easy way for potential purchasers to figure out which work best. This law would fix that problem. 

The only drawback to this bill is that it does not address the failure of the hearing health professional to educate regarding how hearing aid consumers can get the most out of their hearing aids, including how hearing aids can work with ADA compliant assistive listening devices denies the consumer access to an equal and effective opportunity to meaningfully communicate in public settings.  This includes access to venues such as, but not limited to: court rooms, transportation hubs, law enforcement buildings, and educational settings. Utah House Bill 112, known as  the “Hearing Instrument Specialist Amendments” could serve as a model for language that could be added to the OTCHAA that help the consumer receive crucial information about hearing aids that they have just purchased. Additionally, it would be great to require the hearing aid provider or seller to educate the consumer about the itemization of professional services and price transparency on the products or services that they sell. 

Hearing Aid Insurance

The last issue that I would like to address that most insurance companies do not cover the cost of obtaining hearing aids. For example, Medicare does not cover the cost of hearing aids, but does cover cochlear implants and related services. Medicaid covers the cost of hearing health care products and services in some states for qualifying individuals, but in other states little or nothing is covered. Federal employees are able to choose a health care plan that includes hearing heath care. But many private health insurance plans do not include coverage for hearing health care. As a result, Congress could help make hearing aids affordable and accessible if it required private insurance companies as well as Medicaid and Medicare to cover the cost of hearing aids for both children and adults. 

The Hearing Aid Assistance Tax Credit Act (Senate bill S.48), reintroduced in the Senate on January 5 by Sen. Dean Heller (R-Nev.), would provide a non-refundable $500 tax credit for the purchase of a single hearing aid, or $1,000 for two, once every five years for parents purchasing a hearing aid for a dependent child. This credit could also be used by persons over 55 years of age for the purchase of a hearing aid. In the past, a version of the bill introduced in the U.S. House of Representatives included a $200,000 per year income eligibility cap. A bill has not yet been introduced in the House.  The Hearing Aid Assistance Tax Credit Act is a step in the right direction but it doesn’t cover the cost of hearing aids for those who are between the ages of 18 to 55.

Conclusion

It is my hope that the issues that I have raised in this letter can be addressed in the Better Care Reconciliation Act (BCRA) that Congress is currently considering. Please do not forget the needs of those who are Deaf and hard of hearing when it comes to improving health care in America.

Sincerely,

Jared Allebest, Esq.

Reviewing The Impact Of The DOJ's New Accessibility Regulations For Movie Theaters

Today, the Department of Justice announced that they have published the final rule clarifying a movie theater's obligations to provide appropriate auxiliary aids and services for people with disabilities who come to see a film. The Final Rule now is available online on the Federal Register’s website and on the Department's ADA website. The rule will take effect on January 17, 2017. Prior to publishing this rule, the DOJ released an advance copy of the final rule, as well as a FAQ on the rule on their ADA website. 

The impact of these regulations will depend on the particular movie theater company. Most large movie chains have already made their theaters accessible to the Deaf and Blind. For them, the impact will be minimal. However, the effect of these new regulations may be a burden on smaller movie theater companies or independently owned movie theater companies.

For the Deaf and Hard of Hearing community, the new DOJ rules requires theaters with digital screens must provide closed captions to Deaf and Hard of Hearing customers. Two years ago, the DOJ published a "July 11, 2014 Initial Regulatory Assessment and Initial Regulatory Flexibility Analysis" for the new proposed rule making for movie theaters with digital screens, it notes that "currently, there are four different closed caption technologies for digital cinema systems available on the commercial market—the Rear Window® system; the CaptiView™ system by Doremi Cinema, LLC; Ultra Stereo Labs (USL), Inc.’s closed caption infrared system; and Sony’s Entertainment Access Glasses and Audio Description receivers.[17] The Department understands that about 300 RWC systems are currently installed at U.S. movie theaters nationwide; research by the Department also suggests that as of March 2013, about 9,750 Doremi CaptiView™ systems have been installed domestically. Sony’s glasses are a recent entrant to the market, first available in 2012."

Most movie theaters will be able to easily comply with the new regulations since many of the theaters already have caption technologies long before the new rules were released. 

I will briefly review the Rear Window system, the CaptiView system and the Sony Access Glasses and how they help Deaf and Hard of Hearing individuals enjoy movies that they see at their local movie theater.

Rear Window Captioning System

Rear Window Captions were created for the 35mm Prints, but it has been reconfigured for use in digital formats. There is a small rectangular screen that is at the back of the movie theater that displays the captions in reverse and the mirror will show the captions in the proper order. This technology is placed into the seat cupholder for the Deaf person to view.

The problem with the Rearview technology is that the words on the screen are often small or are blocked by the screen grids.Additionally, it does not provide "outside noises" beyond dialogue, such as a helicopter, crowd noise which are  not captioned the way they normally would be during a TV show. The other issue is with the device itself. You have to struggle with the positioning of the device and people often have to reposition it frequently which degrades the experience of attending a film. It takes multiple adjustments to get the captions into the proper view that you want. Also, if a Deaf person has to leave the theater to use the restroom and returns back to the film, they have to move it out of the way and then come back to struggle with it again to put in the right position for them. Finally, this technology takes up cup space leaving a Deaf individual to hold the cup during the film or put it between their legs. 

 CaptiView System

The CaptiView works in a similar manner as the Rear View System. The CaptiView system transmits and receives AES-128 encrypted closed captions on a wireless band frequency within a 80 meter signal range. This gives it an advantage over the Rear View system in that it can be used from any seat in the theater which the Rear View system requires the Deaf patron to find a seat that in line with the screen in the back of the theater. The other advantage is that it comes with a privacy visor so it can be positioned directly in front the movie patron with minimal impact or distraction to neighboring patrons. However, the downsides to this technology is the same as it is for the Rear View system.

Sony Entertainment Glasses

Sony created advanced glasses that contains unique holographic technology in which closed captioned text appear on the glasses that appear to be superimposed on to the screen. The glasses have a receiver box that is equipped with an audio assist function, this solution is useful not only for people with hearing difficulties but also for people with visual impairments. The glasses weigh about 3 oz (84 g) and the receiver weighs approx. 3.1 oz (89 g) which means they are about the same size as 3D glasses you would wear at to see a 3D film. Another awesome benefit of this technology is that users can choose from one of six languages that may be offered in the glasses so long as the language is available in the DCP (Digital Cinema Package) format. Viewers simply select the language by manipulating the captioning glasses’ receiver box. You can also select how far or close you want to appear on the glasses and how bright you want the captioning to appear on your glasses. 

The only downside to the Sony Glasses is that they seem to run out of juice pretty quickly. I have to repeatedly go to the box office to get a new pair of glasses while I am watching a film.

I personally find the Sony Entertainment Glasses better than Rear Window Captioning or CaptiView. Some people don't like it because they find the glasses too heavy or that it is too bulky. But I love it. It doesn't occupy your cupholder. You don't have to wrestle with the pole to get the captioning in the right position. If you need to leave the theater to take a phone call in the hallway or use the restroom, it will still provide captioning for the film.

Open Captions

Open Captions is a really simple and durable technology. Text appears on the screen and is embedded in the video presented on the screen. For the Deaf and Hard of Hearing, it is the preferred method of watching movies. It is the gold standard.  It is my preferred way of watching movies at the movie theater. 

The only drawback to open caption movies is that it is not available at any time you show up at the movie theater. With any of the other accessible technologies mentioned in this article, you can walk into a theater at any time to watch the film  so long as the movie theater has Sony Glasses or CaptiViews available for you. If the theater runs out of the Sony Glasses because there are lots of people with hearing loss at the theater, you're out of luck. With open captions, there's no chance of that happening because everyone in the cinema can enjoy the technology at the same time.

Conclusion

The new DOJ rules for movie theaters shouldn't be too burdensome since many movie theaters have been providing customers with hearing loss with technology for awhile now. I think the impact of these new regulations will improve the way movie theaters serve their customers. Movie theaters will be more proactive in training their staff on how to use the technology and that the accessible items will be well maintained and ready upon request.  These regulations may get movie theaters to consider the needs of their deaf or blind customers and to provide them with an enjoyable movie experience.

DOJ Releases Final Rules Requiring Movie Theaters To Be Accessible to Deaf and Blind Patrons

Recently, the Department of Justice released the final rule requiring movie theaters to take the following action:

(1) Public accommodations that own, operate or lease movie theaters have and maintain the equipment necessary to provide closed movie captioning and audio description at a movie patron’s seat whenever showing a digital movie produced, distributed, or otherwise made available. (see §36.303(g)(2)-(6)). In other words, equipment must be available at all showings for the Deaf and Blind patrons of all movie theaters and that they must have a minimum number of fully operational captioning devices and to provide them to patrons upon request.

(2) Public accommodations that own, operate or lease movie theaters must provide notice to the public about the availability of these features to their Deaf and Blind customers.  (see § 36.303(g)(8)).

(3) Public accommodations that own, operate or lease movie theaters must ensure that theater staff is available to assist patrons with the equipment before, during, and after the showing of a movie with these features. (see §36.303(g)(9)). This means that movie theaters must have staff available who are able to operate and respond to problems with all equipment necessary to deliver captioning and audio description and to show patrons how to use the individual devices whenever digital movies with such features are shown.

As an attorney and advocate for the Deaf and Hard of Hearing community as well as the former Chairman of Loop Utah, this is excellent news. It has always been a challenge for the Deaf and Hard of Hearing Community to enjoy films at the local movie theater. This new rule creates a nationwide standard that will be followed throughout the United States.

 Title III of the ADA requires public accommodations to furnish appropriate auxiliary aids and services and to ensure effective communication with people with disabilities. The DOJ considers captioning and audio description devices to be auxiliary aids under the ADA. 

The purpose behind the release of this new regulation is that even though many movie houses worked hard to make their theaters accessible to the Deaf and Hard of Hearing as well as to the Blind, the DOJ was still receiving complaints that neither closed movie captioning nor audio description is universally available at movie theaters across the United States. Even when they do provide it, the devices may not be kept in good shape as to be readily available upon request.

This new rule applies only to certain movie theaters as defined by the rule. The rule defines a movie theater as a “facility, other than a drive-in theater, that is owned, leased by, leased to, or operated by a public accommodation and that contains one or more auditoriums that are used primarily for the purpose of showing movies to the public for a fee.” 

This new regulation will not apply to any movie theater that shows only analog movies in all of its auditoriums nor will it apply to drive-in theaters because the technology to provide closed movie captioning and audio description in such venues allegedly does not yet exist.

It is worth noting that under this new DOJ rule, it allows movie theaters to provide open captioning (i.e., captioning that is shown on the screen and visible to all movie patrons) but it does not require movie theaters to provide open captioning under any circumstances.  Unfortunately, Hearing Loops were not mandated under these new regulations.

Currently, there are four different closed caption technologies for digital cinema systems available on the commercial market. Those technologies are the Rear Window® system; the CaptiView™ system by Doremi Cinema, LLC; Ultra Stereo Labs (USL), Inc.’s closed caption infrared system; and Sony’s Entertainment Access Glasses and Audio Description receivers.

A movie theater must provide a minimum number of fully operational captioning devices in accordance with the following table.

A movie theater must provide a minimum number of fully operational audio description devices in accordance with the following table.

Naturally, movie theaters do not have to comply with the new rule’s requirements if compliance would result in an undue burden or a fundamental alteration.

The DOJ intends to publish the final rule in the Federal Register in the near future, and the rule will take effect 45 days after publication.

Communication is Important for Deaf and Hard of Hearing Clients When They Are Buying A Home

Marla*, who has been Deaf from birth, had difficulty in communicating with her real estate agent. She requested an ASL interpreter so that communications between her and her real estate agent would run more smoothly, but the real estate agent refused.

This is a frequent problem that Deaf people face in purchasing the property. They have difficulty communicating with real estate agents, bankers, mortgage brokers, and others involved in the sale and purchase of real estate. 

Knowledge and accurate communication are the keys to making these transactions go smoothly. A real estate agent who is sensitive to the communication needs of a Deaf client can make the entire process a pleasant experience. Some individuals will complain about the cost of hiring an interpreter. It is important to welcome an interpreter throughout the process because the cost is small compared to the investment that a Deaf buyer is about to make.

When there is a communication breakdown, it robs the Deaf client of getting the information they need when purchasing a property. Deaf people have a right of communication access with these individuals under Title III of the Americans with Disabilities Act (ADA). Complaints about communication access under federal law can be filed with the U.S. Department of Justice (DOJ).

Having an ASL interpreter isn’t just for the benefit of the Deaf individual, it also helps the real estate agents, bankers and mortgage brokers. Smooth communication allows these individuals to provide excellent service to their clients by being able to clearly understand their needs and concerns. It will also help to avoid confusion and problems that arise if the lines of communication are not clear.
The best benefit of having an ASL interpreter in all stages of buying property is that it will lead to more clients to your businesses. When the Deaf community discovers a Deaf-friendly business, they will refer others to that company.

Finally, it will lead to satisfied customers. Ultimately, Marla was provided with an ASL interpreter. Having an ASL interpreter made the difference between a stressful experience and a great experience in buying a home, both for the client and the agent.

* Name has been changed to protect the individual’s identity

Looping the Deaf and Hard of Hearing Into Our Judicial System

Last year, the United States Supreme Court installed a hearing loop system that will help those who wear hearing aids or cochlear implants hear better in the nation’s highest court. The new induction listening system, which is in addition to the High Court’s existing FM and infra-red listening devices, transmits sound through an electromagnetic signal that can be picked up by the telecoil of a hearing aid or cochlear implant.[1]

 

The new system is intended for use by court visitors and by attorneys appearing before the court. The Deaf and Hard of Hearing Bar Association (DHHBA) recently had thirteen members of their organization sworn in and admitted to the Bar of the United States Supreme Court. All members are Deaf or Hard of Hearing attorneys. The Supreme Court provides sign language interpreters and real-time captioning services (also known as Communication Access Realtime Translation, or CART) to DHHBA participants.[2] The hearing loop makes this experience more meaningful for those attorneys with hearing aids and cochlear implants.

There are three types of technology used for assistive listening:  RF (radio frequency), IR (infrared) and IL (induction loop).  All of these technologies produce much of the same result:  the audio source transmitted wirelessly to a personal receiver or directly to a compatible hearing-aid.

In an RF system, the signal is transmitted over radio frequencies (specifically the FCC mandated 72 and 216 MHz bands) to a personal receiver. The advantage of RF technology is that there are no “line-of-site” issues and the technology can cover a wide area indoors or outdoors. 

An IR system uses infrared light to transmit audio. The advantage of IR technology is that the system is secure—the audio signal will never leave the room. The challenge is a listener should be within line-of-site of the emitter/radiators. Also, the shape of the room, the coverage, and line-of-site issues usually require more thought and consideration during the design stage.

In an Induction Loop system, an integral wire is installed around the room in a variety of ways creating an induction field that can be picked up by hearing aids with a tele-coil, which more than 60 percent of hearing aids today and 100% of cochlear implants have. Many venues and users alike enjoy this type of an assistive listening system because the users’ disability is invisible as they simply use their hearing aids to receive the audio signal. There would be no need to ask for a receiver.

It is clear that the United States Supreme Court is committed to making their courts accessible to all Deaf and Hard of Hearing individuals regardless if they are members of the legal profession or are there to observe court proceedings. They are leading the way in opening up the courts to those with a hearing loss.

Making our courts accessible across the United States is still an ongoing challenge.  We have come a long way from the days when it was permissible for a person to be denied service or barred from a courthouse because they had a disability. However, many courtrooms still do not have hearing loops or other devices installed.

In 1990, the landmark Americans with Disabilities Act was passed by congress. It was the nation's first comprehensive civil rights law addressing the needs of people with disabilities, prohibiting discrimination in employment, public services, public accommodations, and telecommunications. There are new rules that the US Department of Justice released in 2010 in regards to ADA compliance and assistive listening.  These new updated rules apply to all new construction and alterations since March 15, 2012 and are mandatory by law.  The number of receivers and number of hearing aid compatible receivers depends on the total occupancy of the venue. [3]

Deaf and Hard of Hearing Individuals need access to court ordered services because there has been a “pattern of unconstitutional treatment in the administration of justice in our nation’s history towards individuals with a hearing loss.”[4] When Congress was considering passing the Americans With Disabilities Act of 1990 (ADA), they discovered that that many individuals, in many states across the country, were being excluded from courthouses and court proceedings by reason of their disabilities.”[5] A task force established by Congress “heard numerous examples of the exclusion of persons with disabilities from state judicial services and programs, including the exclusion of persons with visual impairments and hearing impairments from jury service [and] failure of state and local governments to provide interpretive services for the hearing impaired.”[6]

Although many courts do a fine job in providing Deaf members of the community with American Sign Language (ASL) interpreters, not all individuals with a hearing loss use ASL. There are many individuals who rely on technologies such as hearing aids and cochlear implants, assistive listening devices such as hearing loops, or real-time captioning (CART). Without the necessary technology in our courtrooms, meaningful and crucial information is missed which may lead to severe and unjustified consequences to the administration of justice.

I encourage our judicial system to follow the example of the United States Supreme Court by making our courtrooms accessible to people with a hearing loss by installing hearing loops and other technologies in all of our courtrooms so that people with hearing loss have equal access to our courts.

[1]"Supreme Court Gets a Hearing Loop| David H. Kirkwood | Hearinghealthmatters.org/hearingnewswatch/." Hearing News Watch. 2014. Web. 09 Apr. 2016.

[2] Anat Mytal, "DHHBA Members to Be Sworn into United States Supreme Court Bar." Deaf and Hard of Hearing Bar Association. 06 Apr. 2016. Web. 09 Apr. 2016.

[3] "2010 ADA Standards for Accessible Design." Hearing Chattanooga. Web. 9 Apr. 2016. <http://www.hearingchattanooga.org/news_items/ADA Standards 219 706ALDs .pdf>.

[4] Tennessee v. Lane, 541 U.S. 509, 524-525 (2004).

[5] Id. at 527.

[6] Id.

How To Get Involved In Advocating For People With Disabilities

People often ask me how they can get more involved in advocating on behalf of people with disabilities. Being an advocate is great and it is actually really easy to do.  

There are several organizations that people can reach out to and become active with. I have listed some of them below. I have included two organizations that fights for the rights of Deaf and Hard of Hearing individuals. 

1. American Association of People with Disabilities

3. Disability Rights Education & Defense Fund

4. National Disability Rights Network
5. TASH
6. National Association of the Deaf (NAD)
7. Hearing Loss Association of America

There are other ways to make your voice heard. You can contact your state and local elected representative and talk to them about how they can improve the lives of people with disabilities. You can also contact your elected representative in the Senate and in the House in Washington D.C. as well. You can also reach out to the President too. I suggest using this website for help in contacting elected officials at the local, state and federal level. 

But there are also other avenues that people can pursue in advocating on behalf of people with disabilities.

People can reach out to the Bipartisan Disability Caucus so that you can suggest your concerns and share ideas with them. This contains a list of elected officials in Washington D.C. who have a strong interest in helping people with disabilities. You can also contact the House Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice as well. Finally, you can also reach out to the National Council on Disability (NCD).

There are also government agencies that specialize in helping people with disabilities. Below are some websites for you to use such as disability.gov and ada.gov.

There are also legal organizations such as Disability Rights Legal Center (DRLC), Disability Rights Advocate (DRA), and the Disability Rights Law Clinic. People should also be aware that the American Bar Association has a Commission on Disability Rights. There is also the Disability Rights Bar Association (DRBA). For people who are Deaf and Hard of Hearing, there is the Deaf and Hard of Hearing Bar Association (DHHBA).

United States Supreme Court Installs Hearing Loops

The United States Supreme Court has recently put out a press release that they will be installing hearing loops in the nation's highest court in preparation for the upcoming Court Term: 

A new assistive listening system has been installed in the Courtroom to improve visitor services. The hearing loop system will be available for use when the Court’s Term begins in October. The new system transmits sound through an electromagnetic signal picked up by most hearing aids and cochlear implants without requiring additional equipment. Listening devices will be available for those who wish to use the hearing loop but do not wear hearing aids or have hearing aids that are not compatible with the loop technology. The Court will also continue to offer the FM and Infra-red listening devices made available to Courtroom visitors in the past.

The installation of the “induction loop” (also known as T-Loops or Hearing Loops) assistive listening system in the Courtroom is great news for the Deaf and Hard of Hearing community. Many people who are Deaf or Hard of Hearing do not communicate using ASL and use hearing aids or cochlear implants that include a telecoil (a small copper wire which boosts magnetic signals) to help them experience improved sound quality and clarity in venues such as churches, theaters and courthouses simply by switching on their telecoil. 

Kali Borkoski writing for SCOTUSblog explains that the induction loop "works by transmitting sound electromagnetically. An alternating current is run through a wire around the Courtroom, thus creating a magnetic field; when a visitor wearing a telecoil enters the magnetic field, the telecoil picks up the electromagnetic signal, which is processed by a chip in the hearing aid/implant/headset, and fed to the listener’s ear as sound."

The Court is striving to meet the diverse needs of the Deaf and Hard of Hearing community by providing communication access such as Assistive Listening Devices or Sign Language interpreters who wish to attend oral arguments at the Court. The Court may be sending a signal to other courts across the country to start installing induction loops into their court rooms because many courts offer other Assistive Listening Devices such as the FM and Infra-red listening devices. Some courts, typically smaller courts, don't offer any listening devices at all. The attempt to get courts in the United States to be compliance with the Americans With Disability Act (ADA) is still an ongoing project. As a result, the Court is setting an example for the rest of the judicial courts across the nation by installing the induction loops in the Court.

I am on the steering committee for the Loop Utah Movement here in Utah. In working with audiologists, businesses and Deaf and Hard of Hearing individuals, our goal is to help state and local government agencies, and places of public accommodation be aware of Hearing Loops (also known as T-Loops or Induction Loops) that will enable them to meet their legal requirements of providing effective communication with Deaf and Hard of Hearing individuals. 

While many courts in Utah offer Assistive Listening Devices such as the FM and Infra-red listening devices, none of them (as far I know) have installed induction loops in their courtrooms. Installing induction loops would be a great help witnesses, jurors, attorneys or just members of the public to hear what is going on in court here in Utah.  Even Judges who wear hearing aids will benefit from having induction loops in their courtrooms. Hearing loops provide the best all-round assistive listening solution. This opinion is shared by most knowledgeable installers and venue operators and he led to induction loop becoming the default solution in most countries.

While many courts here in Utah work hard to meet the needs of Deaf and Hard of Hearing individuals, there is still a lot of work that needs to be done within the criminal justice system.  Hopefully, the Utah judicial system will follow the Court's example by installing hearing loops in courthouses in this state. 

Rasing Money For A Good Cause: Loop Utah Movement Fundraiser

I am on the steering committee for the Loop Utah Movement here in Utah. In working with audiologists, businesses and Deaf and Hard of Hearing individuals, our goal is to help state and local government agencies, and places of public accommodation be aware of Hearing Loops (also known as T-Loops) that will enable them to meet their legal requirements of providing effective communication with Deaf and Hard of Hearing individuals. 

As a result, Loop Utah is seeking donations so that we can continue our ongoing education on loops. By donating to our organization, it will enable us to purchase portable loops to demonstrate this technology, provide a loop to be used at various venues to try, handouts, provide resources and enable ongoing loop education. You can donate either by credit card on our www.looputah.org site or participate in our first Fundraiser Auction & Luncheon on May 2nd here in Utah. 

For more details, see the flyer below. 

Fake Sign Language Interpreter At Nelson Mandela Memorial Demonstrates Why The ADA Sign Langugage Interpreting Requirements Are Necessary

Imagine you are a Deaf person living in South Africa and the world is mourning with your country over the loss of Nelson Mandela. You turn on your television to join millions around the world in paying respect to South Africa's first President. You become excited when you discover that there is a South African Sign Language Interpreter for you to watch. But there's one problem.

This South African Sign Language interpreter is making up signs. Now your heart sinks becuase you can't understand what is being said at the Nelson Mandela Memorial Ceremony because Sign Language interpreters are used to translate what is being spoken into sign language.  

Deaf people around the world are outraged at the fact that a man who held himself as a legitimate South African Sign Language Interpreter turned out to be a charlatan. He's a fake interpreter. For proof that this interpreter is making signs up, watch this YouTube clip to see a side by side comparison between a real interpreter and the imposter. Sadly, this kind of fake interpreting is part of South Africa's complex history with its Deaf citizens.

Paul Breckell, the Chief executive of the U.K.-based charity Action on Hearing Loss, explained how this fake interpreter harmed the South African Deaf community: 

"We are shocked by the quality of sign language interpretation at Nelson Mandela’s memorial -- if it could be called interpretation at all."

He added that "the limited number of signs, the amount of repetition, lack of facial expressions and huge gaps in translation meant that deaf or hard of hearing people across the world were completely excluded from one of the biggest events in recent history."

As a Deaf attorney who represents Deaf clients (and hearing clients too) on a wide variety of legal matters and is an advocate for the rights of Deaf and Hard of Hearing people in America, I can tell you that it is not always easy for a person with a hearing loss to get a qualified Sign Language Interpreter in the United States. 

That is why the Americans With Disabilities Act (ADA) is so important in America for Deaf and Hard of Hearing individuals. The ADA has some provisions that helps to insure that the American Sign Language (ASL) interpreter is a legitimate interpreter who will actually interpret what is being said. The fake interpreter did not help Deaf South Africans from understanding the speakers at the Nelson Mandela memorial. Any Deaf or Hard of Hearing individual who relied on this fraudulent interpreter missed out on so much information and knowledge that was presented at the memorial. All the heartwarming stories and speeches were completely missed thanks to this imposter. 

Now imagine if you were a Deaf or Hard of Hearing individual in America. What if this interpreter was interpreting for you in court? Was with you in your visit with your doctor? Was with you as you were being questioned by the police either as a witness or a suspect of a crime? Was interpreting for you at your wedding? 

You would miss out on so much. That is why interpreters are so important to Deaf people. That is why Deaf people demand that an interpreter be competent in translating for them. However, having a sign language interpreter isn't just for the Deaf person. Its also for you. The interpreter is also there for you to help you understand what the Deaf person is telling you. An interpreter is there to help facilitate effective communication between both parties.

How does having an interpreter help hearing people? It allows for clear communication to occur between both parties which reduces frustration, confusion and misunderstanding that might occur. It reduces any civil or criminal liability that may arise if there is a dispute over what was communicated. It also helps the parties identify where the miscommunication or misunderstanding occurred. It also helps preserve confidentiality where important or private information is being shared, especially in medical or legal settings. Using a certified interpreter is the only way to avoid these and other unforeseen problems. All certified interpreters are bound by a Code of Professional Conduct. 

It is also good for business. There will be better communication between both parties in business transactions. A Deaf patient will be able to follow a doctor's medical advice which reduces medical complications and injuries. A Deaf person can receive the legal advice that an attorney provides which will keep his Deaf client in compliance with the law.

How The ADA Ensures that Sign Language Interpreters Are Competent

There are five sections to the ADA.  Title I covers employment. Title II applies to public entities such as state and local governments. Title III applies to places of public accommodations such as football stadiums, businesses and restaurants. Title IV covers Telecommunications. And Title V deals with miscellaneous items.  

One of the major goals of the ADA is to ensure that “effective communication” takes place between an employer and employee under Title I;  a citizen and a government official such as a police officer, fireman, a doctor working at a state run hospital, a city official, Judge, Mayor or federal employee working for the United States government under Title II; or between a individual and a business owner or employee such as a lawyer, a doctor working at a private hospital or clinic or having a face to face meeting with a business owner to discuss a complaint about a product or service at the business under Title III.

Both Title II and Title III of the ADA provide definitions of what a competent ASL interpreter is. The ADA calls a competent and legitimate ASL interpreter a "qualified interpreter." Under the ADA, a qualified interpreter “means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.” See 28 C.F.R.§ 35.104 for Title II and 36.104 for Title III.

It is important to point out that the ADA doesn't require the ASL interpreter to be licensed and certified. It just requires them to be "qualified." However, some states have passed laws requiring that qualified interpreter must also be licensed and certified. For example, Utah passed a HB371 which amended Title 53A, Chapter 26a to now require interpreters to obtain obtain state certification as American Sign Language-trained interpreters and that anyone who interprets in the state of Utah without being certified is charged with a Class B Misdemeanor.  As a result of the passage of HB371, Utah Administrative Code Rule R746-510-2 , defines a "Certified Interpreter" to mean a "person who is certified as meeting the certification requirements" of  the "Interpreter Services for the Hearing Impaired Act."  I strongly encourage states to follow Utah in making it a state requirement that ASL interpreters should be required to be certified by a state licensing agency. 

The ADA also doesn't recognize (yet) Certified Deaf Interpreters (CDI). A CDI is "an individual who is deaf or hard of hearing and has been certified by the Registry of Interpreters for the Deaf as an interpreter.” (Professional Standards Committee. CDIs have “excellent general communication skills and general interpreter training, [and that] the CDI may also have specialized training and/or experience in use of gesture, mime, props, drawings and other tools to enhance communication. The CDI has an extensive knowledge and understanding of deafness, the deaf community, and/or deaf culture which combined with excellent communication skills, can bring added expertise into booth routine and uniquely difficult interpreting situations.” (They are also attuned to the finer nuances of ASL and non-verbal communication that a hearing interpreter might not have. However, a properly trained and certified CDI would easily met the ADA requirements for a qualified interpreter.

The best way to find a qualified (and certified)  ASL interpreter or CDI is to contact an interpreting agency in your state who can assist you in finding the right interpreter for you and your client. There is also the  Registry of Interpreters for the Deaf (RID which is can assist you in finding an good and competent ASL interpreter or CDI.

The ADA as well as many state anti-descrimination laws strictly forbid people from using friends and family members as an interpreter unless they can prove that it was either an emergency or by judicial decree. Attempting to use a client’s family member, friend or neighbor who claims to know ASL leads to a minefield of problems for you and your organization. They may be too emotionally or financially involved to provide a fair and accurate interpretation of what is being said between both parties. Furthermore, an unqualified interpreter will not have to abide by ethical constraints required of a qualified interpreter. Additionally, using an unqualified interpreter may destroy the privilege of confidential communication between an attorney and the client, doctor and the patient, clergy and the parishioner and therapist and client.  Finally, not using a qualified interpreter may expose you or the unqualified interpreter to liability.

Also Title II and Title III strictly forbids people, public entities and public accommodations from charging the client the cost of hiring an interpreter. Charging a Deaf client will most certainly put you in legal trouble and you might face the possibility of a lawsuit. The cost of providing an interpreter is part of the cost of doing business or providing a government service. Almost always, the cost of an interpret is less than profit you will make from that client in providing a product or service to the Deaf or Hard of Hearing individual. 

HB371 amends previous rules to penalize individuals who don't obtain state certification as American Sign Language-trained interpreters. Many have performed the duty without the correct certification, essentially bilking deaf individuals, said Dale Boam, a Utah Valley University professor of deaf studies, attorney and experienced ASL interpreter.
Read more at http://www.ksl.com/?nid=148&sid=24252184#QqoMcASRehCzClzO.99

HB371 amends previous rules to penalize individuals who don't obtain state certification as American Sign Language-trained interpreters. Many have performed the duty without the correct certification, essentially bilking deaf individuals, said Dale Boam, a Utah Valley University professor of deaf studies, attorney and experienced ASL interpreter.
Read more at http://www.ksl.com/?nid=148&sid=24252184#QqoMcASRehCzClzO.99

The fake Sign Language Interpreter at the Nelson Mandela memorial demonstrates why having a qualified and certified interpreter is necessary and why it a major part of the Americans with Disabilities Act. A person claims know sign language isn't enough. This guy was able to bluff his way into interpreting for many South African events until he was able to land the biggest interpreting job in history. As a result of his lies, he hurt the world wide Deaf Community who wanted to join in and celebrate Nelson Mandela's life.  

Don't just hire any interpreter. Get the right one. A qualified and certified one.

The Rights of Deaf and Hard of Heaing Individuals To Have Access To Court

Deaf and Hard of Hearing have historically been denied access to justice through discriminatory measures that prevented them from participating in a court trial such as being a witness in a case or serving on a jury. As a result, Federal and State laws were passed to provide them with meaningful access to justice. Unfortunately, many Deaf and Hard of Hearing people are not aware of their rights when it comes to enjoying the services and programs that are offered by the judicial system. Additionally, the legal community isn't always aware of these various rights either.

This article will provide a quick summary of the rights that Deaf and Hard of have under the Americans with Disabilities Act (ADA) and Utah State law which will help educate the general public as well as the legal community about the rights that people with hearing loss have when they come to court. Most importantly, this summary will be helpful to Deaf and Hard of Hearing people across the country. I have also provided laws that are specific to Utah that will be extremely helpful to those who are not aware of their rights in this state. 

ADA Summary

• Deaf or Hard of Hearing Individuals cannot be excluded or denied from having access to the Courts: Title II of the ADA provides in relevant part that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132.

• Courts have a duty to ensure that Deaf and Hard of Hearing individuals have communication access to the courts: Under the ADA, “public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1)

• Courts have a duty to provide Deaf or Hard of Hearing Individuals with the appropriate axuliary aid or services so that they can have equal opportunity to enjoy the services and benefits provided by the courts: Public entities are required to “furnish appropriate auxiliary aids and services where necessary” to provide “applicants” who are “qualified individuals with disabilities” an “equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28 C.F.R. § 35.160(b)(1)

• The Court’s duty to provide an effective communication will depend on the situation: The kinds of “auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.” 28 C.F.R. § 35.160(b)(2) 

•  Auxiliary Aids and Services Defined: Title II of the ADA explains that “auxiliary aids and services” means to include “Qualified interpreters on-site.” 28 C.F.R. § 35.104(1). A qualified on site interpreter is defined as someone who “is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.” Id.

Utah State Law Summary

• Right To An Interpreter In A Criminal or Civil Proceeding: Any “hearing-impaired person who is a party or witness at any stage of any judicial or quasi-judicial proceeding in this state or in its political subdivisions, including civil and criminal court proceedings,” the appointing authority shall appoint and pay for a qualified interpreter to interpret the proceedings to the hearing-impaired person and to interpret the hearing-impaired person's testimony. If the hearing-impaired person does not understand sign language, the appointing authority shall take necessary steps to ensure that the hearing-impaired person may effectively and accurately communicate in the proceeding. (See 78B-1-202(1))

• Parents of Juveniles have a right to an interpreter: If a juvenile whose parent or parents are hearing-impaired is brought before a court for any reason whatsoever, the court shall appoint and pay for a qualified interpreter to interpret the proceedings to the hearing-impaired parent and to interpret the hearing-impaired parent's testimony. (See 78B-1-202(2))

• Deaf or Hard of Hearing Individuals have a right to an interpreter in state administrative proceedings: “In any hearing, proceeding, or other program or activity of any department, board, licensing authority, commission, or administrative agency of the state or of its political subdivisions, the appointing authority shall appoint and pay for a qualified interpreter for the hearing-impaired participants if the interpreter is not otherwise compensated for those services.” (See 78B-1-202(2))

• Deaf or Hard of Hearing Individuals have a right to an interpreter when testifying before a legislative body: “If a hearing-impaired person is a witness before any legislative committee or subcommittee, or legislative research or interim committee or subcommittee or commission authorized by the state Legislature or by the legislative body of any political subdivision of the state, the appointing authority shall appoint and pay for a qualified interpreter to interpret the proceedings to the hearing-impaired person and to interpret the hearing-impaired person's testimony.” (See 78B-1-202(3))

• Where A Deaf or Hard of Hearing Exercises His 6^th Amendment Right to Counsel, he also has a right to have an interpreter present with his court appointed attorney: If it is the policy and practice of a court of this state or of its political subdivisions to appoint counsel for indigent people, the appointing authority shall appoint and pay for a qualified interpreter or other necessary services for hearing-impaired, indigent people to assist in communication with counsel in all phases of the preparation and presentation of the case. (See 78B-1-202(3))

• Jury Duty: The courts in Utah are to provide appropriate auxiliary aids and services, including qualified interpreters, when necessary to provide an individual with a disability an opportunity to serve as a juror. (See Settlement Agreement between the United States of America and The Utah Administrative Office of the Courts, Department of Justice 1993[1].

Why Is It Important For Deaf & Hard Of Hearing Individuals To Have Access To Court Ordered Services?

The reason why is important for Deaf and Hard of Hearing Individuals to have access to court ordered services is because there has been a “pattern of unconstitutional treatment in the administration of justice in our nation’s history towards individuals with a hearing loss.”[2] When Congress was considering passing the Americans With Disabilities Act of 1990 (ADA), they discovered that that many individuals, in many States across the country, were being excluded from "courthouses and court proceedings by reason of their disabilities.”[3] A task force established by Congress “heard numerous examples of the exclusion of persons with disabilities from state judicial services and programs, including exclusion of persons with visual impairments and hearing impairments from jury service [and] failure of state and local governments to provide interpretive services for the hearing impaired.”[4]

When Congress finally passed the ADA, it recognized that “failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion.”[5] As a result, the Supreme Court in Tennessee v. Lane recognized that it “is perfectly consistent with the well-established due process principle that, ‘within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard’ in its courts.”[6]

As a result, the inability to have access to court is a violation of a Deaf or Hard of Hearing person’s federal and state constitution as well as federal and state law right to participate in the judicial process either as a plaintiff, defendant, witness, or jury member. Without the necessary accommodation, meaningful and crucial information is missed which may lead to severe and unjustified consequences to the administration of justice. Deaf and Hard of Hearing individuals who work as attorneys or judges also have rights guaranteed by federal and state constitution as well as federal and state law that guarantees them the right to have the appropriate accommodations necessary in order to work effectively in court. When a denial of accommodations has occurred, it is an effective denial of access to the courts which results in grave injury to the deprived Deaf or Hard of Hearing individual.

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[1] http://www.justice.gov/crt/foia/readingroom/frequent_requests/ada_tal/tal394.txt

[2] Tennessee v. Lane, 541 U.S. 509, 524-525 (2004).

[3] Id. at 527.

[4] Id.

[5] Id. at 531.

[6] Id. at 532 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)).