Sign Language Interpreter for Hire: Ethics of Direct-Pay ADA Violations

February 10, 2015

Proposal to standardize RID Certified ASL interpreter response to surcharges to Deaf/Hard of Hearing or Deafblind clients for auxiliary aids by places of public accommodation in compliance with ADA law.

[Click to view post in ASL]

What motivates interpreters to continue in this field for decades? Lately, I have been reflecting on how integral and motivating social justice is to an ongoing passion for interpreting. Long days, solo days…days when you really do a good job and days when there is much room for improvement.

With both hands on the ruby frame of social justice, I would like to posit a question to our sign language interpreting community, in the hopes of challenging tacit understanding and stimulating dialogue that leads to change at the national RID-NAD CPC level.

(Note: The scenario below is offered as a case study, and is not representative of any particular encounter.)

The Scenario

You arrive to interpret for a client in a court-ordered setting. The per-session rates for the one-on-one and group meetings are posted on the treatment center lobby wall.  The client informs you upon arrival that the cost was excessive, more than double the rate paid by the general public, and had to be made in cash. You respond by offering to interpret for the client and office staff to sort out the perplexing payment issue. The office staff confirms that payments include a substantial surcharge for the interpreting costs including the agency referral fee and cannot be adjusted.  In sinking “Oh no…” shock, you interpret the remainder of the appointment and are left to drive home and ponder what actions can be taken as a RID certified sign language interpreter with a duty to conduct your practice in an ethical manner. A vision of Anna Witter-Merithew gently invoking the mantra “Do No Harm” comes to mind. Your considerations are within the framework of an ADA violation that is unwelcomed by the D/HH/DB client who vehemently does not want to be paying more than the general public for a public accommodation service.

How is an RID certified interpreter to respond?

(Note: the scenario below is offered as a case study, and is not representative of any particular encounter.)

Interpreter A – Response

My job is to interpret. The payment situation is not my issue to address. While I may not agree with it, it is between the D/HH/DB person and the treatment center to work out the financial details. I can encourage the person to contact the local advocacy agency, provide information on the ADA and resources such as the NAD website, and provide contact information for the state Administrative Office of the Courts. To withdraw from the situation would be presumptuous and a demonstration of audism because I would be taking away the D/HH/DB person’s right to pay for services, which would be condescending, a form of advocacy, an interjection of my personal opinion, and inappropriate. I cite the CPC…tenets 2.5, 2.6 and 3.3 as the basis of my ethical decision making process. I continue to interpret weekly meetings for many months, until the treatment is completed, receiving payment for my interpreting services via paychecks from an interpreter referral agency. I am confident other RID certified sign language interpreters would respond similarly.

2.5          Refrain from providing counsel, advice, or personal opinions.

2.6          Judiciously provide information or referral regarding available interpreting or community resources without infringing upon consumers’ rights.

3.3          Avoid performing dual or conflicting roles in interdisciplinary (e.g. educational or mental health teams) or other settings.

Interpreter B – Response

It is unethical for me to collect a paycheck that includes payment in violation of the federal ADA laws prohibiting discriminatory treatment of people with disabilities. I contact the interpreter referral agency and inform them I cannot continue to interpret because the D/HH/DB person is paying out of pocket for interpreting costs in violation of federal ADA law, and it is unethical for me to continue interpreting under the CPC as an RID certified sign language interpreter. I emphasize that when payments are confirmed to be ADA compliant, I will be happy to resume interpreting, but cannot in good conscience accept payment and so must reluctantly withdraw my services. I recognize this puts the D/HH/DB person in a difficult situation, but see my continued interpreting as complicit in discriminatory practices. I approach the board of the local interpreter referral agency and ask them to put a policy in place, if one does not already exist, that requires ADA compliant payment arrangements consistent with federal law, in order to protect sign language interpreters from being replaced and in support of the right to equal access for the Deaf community. I provide a slate of resources to the Deaf client, including state laws regulating court-ordered treatment.  I cite the CPC including tenets 2.6, 3.7, 4.4, 6.3, 6.5, 6.8, 7.2 and Applicability B. I am confident other RID certified sign language interpreters will respond similarly.

2.6          Judiciously provide information or referral regarding available interpreting or community resources without infringing upon consumer’s rights.

3.7          Disclose to parties involved any actual or perceived conflicts of interest.

4.4          Facilitate communication access and equality, and support the full interaction and independence of consumers.

6.3          Promote conditions that are conducive to effective communication, inform the parties involved if such conditions do not exist, and seek appropriate remedies.

6.5          Reserve the option to decline or discontinue assignments if working conditions are not safe, healthy or conducive to interpreting.

6.8          Charge fair and reasonable fees for the performance of interpreting services and arrange for payment in a professional and judicious manner.

7.2          Keep abreast of laws, policies, rules, and regulations that affect the profession.

Applicability B: Federal, state or other statutes or regulations may supersede this Code of Professional Conduct. When there is a conflict between this code and local, state, or federal laws and regulations, the interpreter obeys the rule of law.

ADA law: CFR 28 Section 36.301(c) Charges. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as provision of auxiliary aids, barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices, or procedures, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.

Sign Language Interpreter for Hire: Accepting Self-pay Terms

While this is a sample case study, it is not an isolated scenario. Most sign language interpreters, at some point in their career, will be approached by a D/HH/DB client wanting to direct-pay, and will need to make a determination to accept or decline those payment terms. For example, an interpreter may accept direct payment for a private family event such as a bridal shower or family reunion, but decline payment for a funeral, offering to interpret pro-bono. Neither of those situations are “places of public accommodation” under the ADA. However, there are situations that are blatant ADA violations. For example, an interpreter may decline to interpret for a driver’s education course as a direct-pay situation, knowing that the private driving instructional school has the duty to provide auxiliary aids including sign language interpreting services for education access, and is repeatedly discriminating by expecting the Deaf person to “bring a friend” to interpret the 8 week course. Or perhaps an attorney refuses to provide a sign language interpreter in a civil case, insisting that the Deaf witness self-hire an interpreter directly or depend on family members to interpret in order to participate alongside co-petitioners.

Profiting From Discrimination

Is it appropriate for one RID certified interpreter to recognize discriminatory practices and decline to participate, only to be replaced by other RID certified interpreters who believe it is outside the scope of practice for an interpreter to take a stand against direct discrimination from which the interpreter profits? What about referral agency responsibility to support equal access for the Deaf Community and ethical business practices of sub-contracting interpreters? Shouldn’t sign language interpreters and referral agencies be the first to recognize and reject profit from overtly discriminatory practices, modeling the daily efforts to educate the public on the requirements of the ADA law and equal access?

Input from an Attorney Interpreter Ally

Daryl Crouse is a well-respected, dedicated sign language interpreter and practicing attorney in Long Beach, California. He graciously agreed to provide his perspective on this issue. Here is an excerpt from his response:

I appreciate my colleagues’ initiative of this much needed discussion. Her work adds to and improves the profession. I believe we agree: it is wrong for a public accommodation to coerce a Deaf person into paying for our service in circumvention of the law.

Such that the Deaf person is coerced into paying for interpreting services; the Department of Justice has stated unequivocally a “public accommodation cannot coerce or attempt to persuade another adult to provide effective communication for the individual with a disability.”1 Thus, an ally would not stand silently while someone is coerced against their will to do something. Similarly, an ally takes their cue from others, careful to stand with and not in front of.

An alternate statement of the illustrative behavior may be: “An interpreter may refuse to accept an assignment when reasonably certain a public accommodation is passing on the cost of interpreting services to Deaf individuals as a surcharge. The interpreter should consult with the Deaf person to confirm their decision to self-pay is made [free of coercion.]” The expected behavior is directly linked to a specific fact. Linking to a specific fact provides clarity and would likely survive an enforcement challenge. Also, a dialogue with the Deaf person as to coercion and not the reason for their choice to self-pay the interpreter respects their right to privacy.

Standardizing Our Response

I would like to propose addressing this issue directly in our NAD-RID Code of Professional Conduct, and remove any ambiguity for RID certified sign language interpreters. It would be a very simple fix. Add a Business Practices Illustrative Behavior 6.9  Support ADA compliant payment and remove oneself from assignments in which a consumer is being directly charged for interpreting services in places of public accommodation, in compliance with CFR 28 Section 36.301(c). 

Share your thoughts. What is a professional, ethical response to a known, verified ADA payment violation?  What actions best support a social justice framework and outcomes?

Questions to Consider

1.  Why is it important that as sign language interpreters we standardize our responses? How does this benefit the Deaf Community? The public? The interpreting community?  What harm is done when we do not standardize our responses?
2.  Why is being complicit in discriminatory coercive practices incompatible with RID professional standards?
3.  Under what circumstances would you agree to direct payment arrangements with the D/HH/DB individual or group?

Related StreetLeverage Posts

Social Justice: An Obligation for Sign Language Interpreters?  by David Coyne

Social Justice: A New Model of Practice for Sign Language Interpreters? by David Coyne

Beyond Ethics: Rules Versus Values for Sign Language Interpreters by Amy Meckler

References

1 http://www.ada.gove/regs2010/titleIII_2010_regulations.htm#subpartc (last visited January 15, 2015)

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22 Comments on "Sign Language Interpreter for Hire: Ethics of Direct-Pay ADA Violations"

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bcolonomos
Member
Bravo Shelly! This article raises issues that have not been in the forefront for me, so I am so glad you offer this thought-provoking piece. I agree that this has to be discussed and incorporated into our CPC. I believe now is a great time since committees are currently revisiting and revising many important RID documents. I discussed the article with a colleague and what came from that was the notion of “mandatory reporting” that exists in many professional environments. Should interpreters who are being coerced into illegal practices be required to report these violations of the ADA to appropriate… Read more »
Member
Shelly Hansen
Hi Betty! Thanks for the comment! I’m excited if this could be addressed in CPC revisions. I hadn’t thought about reporting…That is a great question and one that would be good to discuss under the topic of “mandatory reporting”. Really, what I want is to have the problem resolved and become a non-issue…reality is it continues to come up. I am hoping that with clearer guidelines, it will create a positive environment of consistent response to this situation by RID certified interpreters so that hiring entities, referral agencies and the Deaf community will know the responsibility of the interpreter to… Read more »
Member
Hi, Shelly!! I love your suggestion BUT I want to defer to the Deaf community that we serve. As a result, I have questions that if one doesn’t know them then one should obtain the responses before putting anything into action. How does NAD feel about this? Have they been approached? Do they want us to inform them about the laws? Do they want us as an ally? How does NAD feel about this? While I feel this is a great idea, let’s not forget to keep NAD and the Deaf community in the loop. They are experiencing these things… Read more »
Member
Shelly Hansen
Hi Kevin! Thanks for the thoughtful comment! I would love to get input from NAD on this issue. That is a great idea. I did submit this idea to the RID Ethics committee but to date have not received a response. (Holly Nelson and Steven Florio back in August of 2014). Street Leverage is a great place to bring up topics for wider discussion. I agree, being an ally is critical, and I also believe that interpreters have an independent duty to follow the law or support lawful practices. We carry professional liability insurance and have an independent duty to… Read more »
Member
I’m really thrilled to see this discussion! I’m interested to hear other people’s thoughts and experiences in this area. One thing I am curious about is the term public accommodation. I have heard some people suggest that a public accommodation does not have to follow ADA if they are a very small business with only a few people. For example, is a one-man chiropractor office a public accommodation? what about a small alternative medicine practice that has a chiropractor, a massage therapist, and acupuncturist, & a couple people working at the front desk.?or does it just not matter what the… Read more »
Member
Shelly Hansen
Hi Lisa! I agree…that has caused alot of passing the buck and lack of clarity on actual responsibility. Here is what I understand: The minimum (I believe it is 15 federally and 8 in WA state) number of employees pertains to employers and their duty to provide accommodations for employees. (see Title I of the ADA) This is completely separate from places of public accommodation which open their doors to “serve the public”. (see Title III of the ADA) There is no numerical minimum for places of public accommodation. Instead the standard is “undue hardship” meaning to provide the accommodation… Read more »
Member
Shelly Hansen
Hi Lisa~ Wanted to add one more note: Here are two ideas on how to be more proactive about anticipating and preparing for the inevitable ADA accommodations expenses by a place of public accommodation…1. The fee for the services could be increased for all participants in order to defray those costs. For example, drivers’ ed classes could increase class fees for all students and then use that additional revenue to cover the cost of interpreters/auxiliary aids during the year. 2. The professional organizations that certify/license etc… the providers could create a fund that members pay an annual fee for ADA… Read more »
Member

Shelly, that is a great idea. It is not very different from what is done with the TSA fund for VRS firms. It makes total sense. But getting state agencies to see it that way would require a herculean effort. It is something that NAD and RID could champion…

Member
Shelly Hansen
Hi Kevin! I ran the idea of ADA insurance past my husband. I thought, what if you could pay for ADA insurance as a place of public accommodation, and then file a claim/get reimbursed when you needed to provide auxiliary aids and services. His response was, too much opportunity for fraud and abuse. But it was a good idea for a few minutes ;o) What do you think of that approach? Spread out the cost over group of entities. Then post them on a website as insured with stringent requirements for claims. I guess I am dreaming…
Member
The legal ramifications under the ADA depend on detailed fact situations and the exact nature of the legal relationships involved. Title III of the ADA applies to any public accommodation; commercial facility; or entity that offers examinations or courses related to applications, licensing, certification, or credential for secondary or post-secondary education, professional or trade purposes. Title I of the ADA prohibits a “covered entity” from discriminating against a qualified individual with a disability. A “covered entity” is defined as an “employer, employment agency, labor organization, or joint labor management committee.” See 42 U.S.C. §12111(2). The term “employer” means a person… Read more »
Member
Shelly Hansen
Hi Daryl ;o) Here’s a business card with a 24 hr phone line and a form you can use to fax in a request for an interpreter. Yes, RID Certified interpreters are available to fill those appointments. The local Deaf Center/Referral agency would be happy to send a representative to provide an orientation and answer any questions your staff might have regarding working with clients with hearing loss/disabilities. (as a state sponsored agency, they are contracted to provide public education and document those efforts to maintain funding). Conveniently, they are located in the same town. If you need to locate… Read more »
Member
Terri Hayes
An interesting twist on this – is when the service provider is Totally Willing to pay for interpreting services (No surcharge, no expectation of payment, no strings) but who bills the Deaf person for the price of the interpreter if the Deaf person cancels with less than 24 hours – or simply doesnt’ show up for the appointment. Interpreter is there (through a snow storm) – provider is there (same storm – arrived even earlier)… no Deaf person. No call, no cancel, no show. The provider sent the bill to the Deaf person instructing them the pay the interpreter directly…… Read more »
Member
Shelly Hansen
Hi Terri~ I’ve never seen that happen…the Deaf/HH/DB person being charged for the no-show…I would think the snowstorm falls, perhaps, in the category of “acts of God” and would be an exception especially if transportation was impacted ie: public transportation was cancelled or on restricted schedule or roads were impassable from some locations. That is more of a “missed appt. fee”…and I would think that would need to be in place via a form signed by the patient before it was implemented. I don’t know how that would be viewed by the ADA…? Is that a surcharge? I think it… Read more »
Member
Daryl Crouse

I agree with Shelley, if it were a missed appointment fee equally applied to all clients/customers of that service provider and that was it, not the fee for the cost of the interpreter, not a problem. Shelley is absolutely right, the ADA Hotline is a great resource! I often have referred Deaf folks to that hotline to file a complaint.

Member
Daryl Crouse

The same prohibition on a surcharge would likely apply.

I would probably explain to the hearing person that an interpreter’s address is not always public information for a number of reasons. The same as they would not want their home office address published for their customers or clients. Not much that you could do about it after the person has already sent it.

I guess that experience is an encouragement to have a post office box.

Member
Irene Tunanidas
February 11, 2015 I benefit from Shelly Hansen’s discussion concerning ADA violations when it comes to deaf persons paying for interpreting service in community situations. Last year I left the advisory committee that assists our local agency with new developments because its employees are doing a disservice to the Deaf Community by making own rules. This agency does not recognize the state supreme court’s ruling on certified interpreters in court settings. Interpreter no-shows in community situations. (This happened to me twice) During my tenure on the advisory committee, I spoke out on deaf issues and encouraged deaf committee members to… Read more »
Member
Shelly Hansen

Hi Irene~
Thanks for the comment! Interacting with referral agencies and their boards can be a real challenge. As volunteers, the board members have various levels of experience and knowledge they bring to the table and there are times when it can be very frustrating to be misunderstood or disregarded when you have valid concerns and input based on experience. Agency staff management by the board can also be a challenge. Thank you for sharing your story.

Member
Kathryn Mast
As a previous interpreter coordinator for an Independent Living Center, the discussion of billing was held when requests came in. This often required extensive discussion and reference to civil rights legislation: ADA Title III, Title II, Rehab. Act of 1954, IDEA, etc. Payment authorization was secured before any registry interpreters were contacted before the job. Registry interpreters were paid by our agency, even if we got stiffed, so we acted diligently to be sure a contract for billing was signed and returned before a registry interpreter was sent. This contract included warning s about late charges. We followed up with… Read more »
Member
Shelly Hansen
Hi Kathryn~ Thanks for your comment and input from an agency employee perspective. Those are some great ideas and creative approaches to this issue. Agencies have such a significant role in working to increase access to services and educate the public on the reasons for and importance of communication access in places of public accommodation and the legal basis (ADA,state/local laws) for those accommodations. My hope is that we can approach the direct-pay in places of public accommodation in a consistent manner as RID certified interpreters, which would ideally result in the hiring entity choosing to comply with the ADA… Read more »
Member
Daniel Holscher

Great points. We, as interpreters, need to remember that what we do in any situation is impacted by all of the interpreters that have interpreted in this situation before us. What we do in any situation also impacts all of the interpreters that interpret in this situation after us. We are not stand alone decision makers. Having a guideline that we and the Deaf community agree on and include this guideline in the CPC gives us a standard by which can acurately judge another interpreters response to a situation we find outselves face with.

Member
Shelly Hansen
Hi Daniel! Thanks for the comment ;o) I agree! It also enables the Deaf community to understand and self-advocate for services. For example, if it was established in the RID CPC that a certified interpreter could not accept direct payments by the D/HH/DB client in places of public accommodation, this would provide an opportunity to avoid direct payment because the interpreters cannot comply with that discriminatory practice and thus there would not be any available interpreters for that type of payment arrangement. The hiring entity/place of public accommodation would find itself without the “self-pay” option, and the Deaf/HH/DB person would… Read more »
Member
Shelly Hansen
I want to share an experience I am dealing with at the moment. A place of public accommodation has contacted me. There are a group of D/HH/DB individuals wanting to participate in a specific program. There is a cost associated with this program. The business owner is giving each D/HH/DB person a 50% discount, with the agreement that the D/HH/DB group will hire an interpreter directly. This puts me as the interpreter in a position of having to say no to a very hopeful group of D/HH/DB individuals who know I care about them and the program being offered. The… Read more »

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