Outwitting the Devil: NAD Calls on Sign Language Interpreters to Partner

March 20, 2012

 

Legislation on the basis of disability has provided some access provisions to deaf individuals, but more advocacy is needed to truly achieve an accessible and equitable nation. Howard Rosenblum calls on interpreters to act along with the deaf community to creatively meet those needs.

Sign language interpreters and deaf people have a long standing symbiotic relationship notwithstanding any actual or perceived “Devil’s Bargain” as described by Dennis Cokely in his December 8, 2011 article.  In that article, Mr. Cokely points out that the relationship between interpreters and deaf people has changed in the last forty years as a result of legislative acts that have shifted the sign language interpreting profession from a “service model” to a “business model.” He also questions whether the change in laws and models has been as beneficial to deaf people as it has been for the interpreters.

Mr. Cokely is correct, deaf people continue to struggle with significant unemployment rates and have great difficulty gaining communication access in their medical care. Without a doubt, the United States is not yet a haven of true equality and full access for deaf and hard of hearing people. However, while much work remains to achieve this elusive ideal, the onus of this work is on changing how sign language interpreters are hired in the context of existing legislation.

Legislation: the Devil is in the Details

The Rehabilitation Act of 1973 (“Rehab Act”) and the Americans with Disabilities Act of 1990 (“ADA”) are federal laws that have been both praised as a breakthrough and blamed for many of the woes for deaf people. These laws have failed to recognize the cultural and linguistic identities of deaf people, and instead only provide rights to them on the basis of disability. While the nature of the legal protection is frustrating for many in the deaf community, these laws nevertheless have opened many doors.

For example, in the 1960’s to the best of our knowledge there was one deaf lawyer in the United States by the name of Lowell Myers. He graduated from law school without using any form of communication access as defined by today’s standards including interpreting, and did not have any legal rights at that time to secure such access. This all changed in 1973, with the passage of the Rehab Act. This law required all colleges and universities receiving federal funding to provide communication access, including interpreting services, to deaf and hard of hearing students. This requirement also included law schools that received federal funding. The ADA opened the door even further by requiring every law school in the country, regardless of federal funding, to provide access to any deaf student who qualified for admission.

At the present time, there are more than 300 self-identified deaf and hard of hearing lawyers in the country. Such a dramatic increase in this number since Mr. Myers’ graduation in the 1960’s is indicative that these laws’ mandates of communication access have enabled deaf people to achieve their potential. There are now many deaf doctors, accountants, professors, writers, and scientists, as well as other professions. Just as there are advantages and benefits to every law, there are also disadvantages and loopholes.

How Communication Access is Achieved

The most vexing issue for deaf people under both of these civil rights laws has been that service providers are given the authority to determine how communication access will be achieved. Putting this kind of decision making authority in the hands of service providers (such as doctors and lawyers) often does not make sense when these service providers are generally uneducated about the most appropriate type of communication access required to achieve effective communication for a specific consumer. In fact, these service providers usually have an economic incentive to provide the absolute minimum of communication rather than determining and rendering what is truly necessary to achieve equally effective communication.

While the current status of the laws and their regulations created this undesirable effect, there are ways to work with the existing system to promote better results. Changing federal law is difficult under the best of circumstances, and the entrenched partisanship on Capitol Hill makes it highly unlikely any change will happen soon. Therefore, alternative means of effectuating systemic change is needed at this time.

Systemic Change: Paying the Devil his Due

It has been nearly 40 years since the Rehab Act was passed and the ADA is 22 years old. In all those years, there have been numerous lawsuits and administrative complaints for failure to provide communication access filed against hospitals, as well as the offices of doctors and lawyers. Yet, communication access to medical and legal services continues to be a frustrating imaginary oasis that never seems to materialize for deaf and hard of hearing individuals. Despite educational achievements, deaf and hard of hearing people continue to struggle to get jobs. In many cases, the employer representative balks at the cost of the sign language interpreter(s) at the job interview when considering whether or not to hire deaf job applicants.

What can be done to change this broken system? How can we ensure that all deaf people can go to their doctor or lawyer without worrying about whether an interpreter will be provided? How can we transform employment practices in the USA to ensure deaf people get jobs? In essence, how do we renegotiate the Faustian Bargain?

Communication Access Fund

The National Association of the Deaf is pursuing several ideas to effectuate such change. One idea is to establish a “Communication Access Fund” (CAF). This fund would function like a telecommunications relay pooled fund but designated to pay for interpreters and other forms of communication access for deaf and hard of hearing people who need to see a professional.  Doctors and lawyers pay a fee every year to renew their professional license. Such fees typically cover the cost of administrating the license and monitoring for ethical lapses. If we were to increase the fees for the professional license by a small amount, we could set aside this additional in the CAF.

With such a fund, a deaf person would no longer need to negotiate with each professional to provide a sign language interpreter but would simply request that an interpreter be provided by the CAF. In essence, the deaf and hard of hearing consumer regains the power to obtain an interpreter or another form of communication access. This novel system would comport with federal laws because the professionals remain responsible for the cost of communication access, just not at the time of service but rather in the form of annual fees. More importantly, deaf and hard of hearing consumers would be able to go to any doctor or lawyer without worrying about the provision of communication access. For more information on this concept, go to: http://nad.org/issues/justice/lawyers-and-legal-services/communication-access-funds and http://scholar.valpo.edu/vulr/vol45/iss3/6/.

In the employment area, an adaption of the Communication Access Fund is necessary. Unlike with doctors and lawyers, employers typically have no licensing requirement and consequently there is no fee or tax collection system that would allow for the creation of a CAF. Yet, when employers impose upon departments or divisions within the corporate structure to be responsible for the costs of sign language interpreters, this creates a perceived economic disincentive within the departments or divisions with respect to the hiring of deaf job applicants. Consequently, there needs to be a policy shift within the employment setting to centralize funds for communication access accommodations.

Partners in the Renegotiation: Busy Hands, Not Idle Hands

The situation for deaf people in the United States is not ideal, but it is possible to work together to achieve the mutual goals of deaf and hard of hearing people and sign language interpreters. In addition to advocating alongside the Registry of Interpreters for the Deaf on issues that impact both sign language interpreters and deaf and hard of hearing people, the NAD endeavors to promote a more balanced system that brings about a win-win result for everyone.

How can sign language interpreters assist in this effort and be partners in the renegotiation of the Devil’s Bargain? It will take a great deal of work to establish CAFs throughout the country as it must be done on a state-by-state basis. Each state has its own licensing entity for each profession. Each such licensing authority handles the licensing fee for their respective profession. Depending on state law or regulation, the authority to increase or add to the fee may belong to the licensing authority, the state legislature, the state supreme court (for lawyers’ fees), or a state agency. Consequently, deaf people and sign language interpreters will need to work together in their respective states to strategize and then approach the appropriate authority to create and implement the CAF.

Specifically, sign language interpreters could volunteer their services alongside deaf individuals who volunteer their time to advocate for this important systemic change. State Associations of the Deaf and local Chapters of the Registry of Interpreters for the Deaf could coordinate such efforts. Through such symbiotic partnerships, we can outwit the Devil.

The partnership does not stop there. Sign language interpreters are welcome at the NAD as members, allies, volunteers, and advocates. Join the NAD and be part of the solution. More information about the NAD and how you can become a member is found at: www.nad.org and attend the NAD 2012 Conference in Louisville, Kentucky on July 3-7, 2012! Information about the conference is found at: www.nad.org/louisville

Will you join with us?

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32 Comments on "Outwitting the Devil: NAD Calls on Sign Language Interpreters to Partner"

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Member
Mary McLerran

This is a brilliant idea! I will work within Utah to support this idea.

Member
Rebecca Rosenthal
I agree with Mary it is a brillant idea! Howard, as you may already know I am the executive director of the KS Commission for the Deaf and Hard of Hearing and a member of the National State Association of Agencies serving D/HH (NASADHH). Every two years we meet during or prior the NAD conference. I think NAD should present this concept to the members as many of us would probably take this back home and work on this very issue with the State Associations. I will ask that we put this on the agenda and have time to hear… Read more »
Member

What a fantastic article and idea. Well said Howard! You have our support with CAF in Washington State and beyond. Please keep us posted on how we can mobilize and support this.

Member

This is a great idea. Have NAD come up with a framework of how this should be administrated on the state level? I think we should aim for universal standards because I, for one, would not want to experience frustrations in understanding how other states administrate such programs when I visit there. Come up with the standards each state can base their programs on to outwit the Devil.

hrosenblum
Member

Hi JJ,

The NAD has a suggested framework in its position statement on this issue, found at:

http://nad.org/issues/justice/lawyers-and-legal-services/communication-access-funds

You’re right, having one system that is the same in all states would be preferable to having to deal with so many different versions. While we can certainly endeavor to create identical systems in all states, it’s rare for states to have such uniformity.

Howard

Member
Interesting idea..CAF. Has it been implemented in any state? I am wondering about the resistance to doing that (creating a type of communications tax to support the implementation of the ADA) if there isn’t similar financial supports for the other required provisions in the ADA such as building access, structural modifications, braille materials etc… I’m imagining a lawyer who opens a private practice, pays to build a building to ADA standards, and then also pays into a CAF. How would the rate be set? The demand for interpreting would DRAMATICALLY increase if there was funding available for interpreters thru a… Read more »
hrosenblum
Member
Shelly, There definitely will be resistance from the profession against any such increase in licensing fees. However, the selling point of this concept is that a lawyer or a doctor would have to pay at least $100 for sign language interpreting services for one appointment with one client or patient. Balance that against a $10 or $20 payment per year, and having that “premium” payment cover all possible appointments in that year no matter the number of appointments. In essence, the CAF becomes an insurance policy against paying for multiple appointments requiring sign language interpreters. In addition, lawyers and doctors… Read more »
Member
Peter Snelgrove
I believe you would see some significant opposition to such a measure for several reasons. The most significant, in my opinion, would not be the minimal cost but the aggregate cost being handed over without any imperial evidence warranting such an action. Voting members would see that amount as wasted revenue for their own endeavors rather than using it for what would be perceived by them as charity/welfare. This would hold true for an attempt at an insurance program. Insurance is bought to mitigate risk and from their perspective there not enough risk to warrant the monthly expenditure even if… Read more »
hrosenblum
Member
Any measure that seeks to change the status quo would face significant opposition for various reasons. This does not render any measure unworthy or improbable. The real question is whether it would change the system for the better, and whether we have the gumption to overcome the opposition so that the system changes for the better. There is evidence that deaf and hard of hearing people face enormous barriers in obtaining communication access with doctors and lawyers. Negotiation and education has been tried for twenty years, since the ADA went into effect, and we do not have long term success.… Read more »
Member
millie stansfield

Have been dreaming of some kind of way to hit this problem, and great to partner with NAD. I had tried to broach this kind of partnership through CODA International, but we are not yet an ‘advocacy’ organization.
We coda people have been struggling with our deaf parents’ needs for communication access, especially with doctors and lawyers. Sometimes the hospital is still not adequate.

Howard, what are the next steps?

hrosenblum
Member
Hi Millie, My suggestion for next steps is to put together a team in your state comprising of interested advocates including deaf/hard of hearing people and interpreters. Representatives of the state association of the deaf and states RID should be involved. People who are knowledgeable with the legislative and political process should also be involved. Once this team is assembled, the research begins on how licensing fees are set by the respective authorities for doctors and lawyers. A strategy should be formulated based on this understanding of fee-setting. For example, if the licensing fee is set by a professional regulation… Read more »
Member
Hello Howard, I remember you spoke to me about the CAF concept years ago at a NAD conference and my recollection is you had an operational CAF model for attorneys in the Chicago area, right? Nonetheless, please be aware that since we’ve had that conversation I’ve always taken a keen interest in CAF. Here in Washington, we’re convening a ‘Medical interpreting task force’ inclusive of WSAD, WSRID, deaf consumers, freelance interpreters and innterpreter referral agencies and myself, representing WA State Office of the Deaf and Hard of Hearing. I will push the CAF model as a strategy that the Task… Read more »
Member

1) I think the CAF idea is BRILLIANT. If it gathers steam and becomes a reality that would be fantastic.

2) Eric, I am glad to see WA state being proactive in doing something that is so critically needed.

Member
David Bareford

Eric,

I am a NIC-certified interpreter that has recently moved from Chicago to Washington state (and am in the process of joining WSRID). I’d love to get involved with the CAF effort here. Let me know how I can contribute!

Member
Donna ReitervBrandwein

Count me in to help in anyway possible!

Member

I love the overall idea. I do think that interpreters volunteering their time would be counterproductive, as it would allow the agencies that are being approached to believe they don’t need to comply with communication access laws themselves.

On the other hand, interpreters could certainly join with the deaf community in advocating for this change. While the working interpreter cannot advocate change, the rest of the interpreting community can. We could certainly link hands with the deaf community to support this idea.

Have you had discussions with any licensing agencies about the feasibility of having this CAF fee added to licensing fees?

hrosenblum
Member

Hi PJ,

Yes, it is important to put the responsibility of providing interpreters on agencies whenever possible and applicable. The volunteer aspect was meant to apply where it is not clear who is responsible for the provision of interpreters.

We have been pursuing this concept with a few states’ licensing authorities, and continue to push them to implement the CAF. No state has done so yet.

Howard

abrace
Member
Aaron Brace
I agree with the idea of volunteering our services for lobbying efforts. Raising our own voices on this issue (no matter how hard we try to couch it in terms of supporting the Deaf community) will inevitably be seen as self-serving and, thus, not have much clout. Even volunteering for the first or second appointment for actual service provision is often effective in making the practitioner experience the value of the service, and can make him or her more amenable to an on-going relationship with the Deaf person in which the practitioner pays for interpreting services. As they say in… Read more »
Member
Cousin Vinny

Howard-

I loved your article. However, I still think it’s one of those easier said than done things… I vaguely recall someone trying to set up a ‘CAF’ with my state Bar w/o much success.

Since Bar Associations enjoy quasi-monopolies in their states, would anti-trust rules apply? Basically, we need to come up with a legal rationale to collectively charge a regulated profession the responsibility of the accommodations instead of having the cost fall upon the professional.

Count me in for Florida. My genteel persuasion may help nudge things a bit.

hrosenblum
Member
Vinny, You are absolutely right. This is one of those things that are easier said than done. That has never stopped us before though! Smile. I am not sure about the anti-trust laws and how we might be able to use those laws in this effort. But as explained in another reply comment above, it is more of an economic rationale to implement the CAF. Doctors and lawyers do not want to pay the cost of communication access (whether it is interpreters, CART, or any other) at each appointment which can run them $100 or more each time. If we… Read more »
Member
When I hear the term “unfunded mandate” that seems to be applicable in the ADA situation. It is a federal law, it mandates access but the funding is to be handled by the public service entity as a cost of doing business. This is where we have struggled because short of a lawsuit there are many entities who deny their responsiblity to provide access under the ADA. One of my most frustrating is the Driver’s Education schools. These small businesses that provide community education refuse to provide interpreters and will take a Deaf person’s money and let them sit thru… Read more »
hrosenblum
Member
With respect to driver’s education schools, many of them are licensed by the state. In fact, many of them are certified by the Secretary of State as eligible to provide such educational services, and to provide court ordered classes for people who are ticketed for DUI. It is possible to ask the Secretary of State to require as a condition of certification/licensure that the driver’s education school provide interpreters for deaf individuals. If they refuse, they would lose the certificate/license. With this threat, schools would not be likely to deny interpreters upon request, and this is potentially a stronger tool… Read more »
Member

Hi Howard~
OK I will follow up on that in my state. Thanks for the information!
SH

Member
Michigan Interpreter
Howard, I’m reminded of Bob Mather’s speech in 2010 at NAD about the ADA being “a catalyst for change, but we need more activism.” We don’t all live in DC, and most regions are still terribly lacking in activism. I would love to see NAD set up a method (website?) that is easy and intuitive for any deaf person to file a complaint with NAD, that NAD will follow through until it is resolved. Perhaps each state having one person who takes the lead on civil rights complaints and follows them through until resolution would help resolve this? If not… Read more »
hrosenblum
Member
I do not disagree that more activism is needed, but my own experience in activism with respect to many hospitals brought me to the conclusion that activism only gets us so far. Nevertheless, rest assured that we are looking at ways to streamline the complaint process with the assistance of NAD. As it is now, we are flooded with complaints from throughout the country (so activism is indeed alive and well in our community). We need more resources to handle the volume of such requests and are working towards such a goal. You are correct that there are challenges even… Read more »
Member
The Sign Language Company
So many thought-provoking issues highlighted in this dialogue. From an agency perspective, we are still surprised by those (primarily in the medical profession) who are unaware of their responsibilities regarding sign language interpreters. We often hear “that’s not fair” and “the cost of an interpreter exceeds the cost of the appointment!” We still hear suggestions that maybe a family member can come in and interpret. Your particular post caught my attention Michigan Interpreter. We do lose business to those who make their decisions solely on price and meeting ADA requirements. One medical facility in California recently told us that they… Read more »
Member
Melani Kaplan

This could be a very effective solution to some of the barriers encountered by our community in our struggles for equal access. The Office for the Deaf and Hard of Hearing is definitely interested in tackling this issue in the state of Wisconsin and would love to partner with others (NAD, WAD, other states, etc.)and explore this as a way of improving access.

Member
Melissa Bell

Howard, I agree with this statement from your artcle: “These laws have failed to recognize the cultural and linguistic identities of deaf people, and instead only provide rights to them on the basis of disability.” My apologies if my question is slightly off-topic, but I’m curious to know what cultural and linguistic acknowledgement you would like to see added to our laws? Would you have them recognize the Deaf community by capitalizing “Deaf,” for starters?

Member
Suzann Bedrosian
Hi all, I’m glad for Howard Rosenblum’s response to Dennis Cokely’s original article on the current state of interpreters, “Devil’s Bargain or Profits.” He points out explicit ways to solve existing problems and I hope we can stragetize in our unique positions to make the CAF concept a reality. Great minds think alike (GMTA) as we have been plowing our thoughts and pooling in resources to have an independent ”bank” of interpreter access for different reasons. Let’s continue to have these types of discussion so that we don’t create roadblocks and mistakes that end up in court or in the… Read more »
Member
Kyle Houston

Howard,

I co-wrote an article with two CSUN professors a few years ago suggesting that the ADA may have negatively impacted employment of the Deaf and Hard of Hearing because of the cost of accomodations. If I remember right, we suggested that maybe the government could subsidize the costs of accommodations, or even provide for VRI services much like they do with VRS.

I’m glad to see that others are thinking along the same lines we were, that the cost burden structure under the ADA hasn’t been as effective as we hoped, and it’s time to revisit that and make changes.

Member
I find the CAF concept to be great. I’m just wondering if this should fall under the telecommunication funding already in place to get such a support up and running quickly. There certainly is a serious need for access and if everyone pays, everyone wins. I am wondering if a high tech solution would make this even more accessible. With several terp services already in place for example Z, Sorenson, Purple to name a few, I wonder if this would be a cost advantage over live on site? there are situations where for example I will have to travel and… Read more »
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