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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(New York)