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

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

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

 

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?