Cary LaCheenNational Center for Law and Economic Justice275 Seventh Avenue, Suite 1506New York, NY 10001P 212-633-6967, f 212-633-6371lacheen@nclej.org, www.nclej.org

The cost of poor communication for people with disabilities:

A review of disability rights laws

Copyright © 2013 National Center for Law and Economic Justice and MAXIMUS, Inc. All rights reserved.

Which federal disability rights laws apply? Often more than one of these laws applies.

•Meaningful access and equal opportunity to participate/benefit

•Reasonable accommodations

•No discriminatory effect from program admin

•Effective communication

•Accessible electronic/information technology

Federal disability rights law requirements

•It’s about policies, procedures (with operational details) and staff compliance

•One size does not fit all

•One exception does not fit all

•Assumptions result in ADA/504 violations

•Accommodations should be easy to get

•RFP and contract language matter

•Compliance monitoring is essential

Rules of thumb for ADA/504 compliance

•Must provide effective communication with individuals with disabilities

•Includes applicants, participants, beneficiaries, members of the public, and “companions” (e.g., relatives, friends, advocates)

•Must provide auxiliary aids and services needed for effective communication

Effective communication requirement

Auxiliary aids and servicesFor individuals who are deaf or hard of hearing:•Qualified sign language interpreters; notetakers; computer

transcription services; written materials; written notes; telephone handset amplifiers; assistive listening devices; telephones compatible with hearing aids; closed caption decoders; open and closed captioning; and others

•Voice, text, and video-based products and systems, including text telephones (TTYs); videophones and captioned telephones; videotext displays; accessible electronic and information technology

Auxiliary aids and services continuedFor blind/visually impaired individuals:

• Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs; large print materials; accessible electronic and information technology; and others

Auxiliary aids and servicesWhich ones do you have to provide?

• What is effective for the individual

• Length, complexity of the communication

• Must be provided in a way that protect privacy and independence

• People with disabilities other than sensory impairments: Use low reading a level

• Must use TTY or relay services

• Telephone emergency services: provide direct access to TTY users – not relay

• Policies can have a discriminatory effect unless you make exceptions

• Voicemail, auto-answering, routing systems (IVR) must be accessible

• Email and texting are effective alternatives for some

Telephone accessibility

Website accessibilityWebsites must be accessible to:

• Blind/visually impaired people using assistive technology

• Vision impaired people who don’t use assistive technology

• Deaf/hearing impaired people

• People with seizure disorders

• People who use only a mouse, not keyboard

Website accessibility continuedAccessibility means, for example:

• Web pages and attachments in format accessible to assistive technology

• Non-text elements need text description

• Tables need text labels for each box

• Page layout logical for screen reader user

• Videos captioned and described

• Text/color adjustable

Website accessibility continuedYou will need:

• Knowledgeable web-designer/webmaster

• Web accessibility testing with computer programs and people with disabilities

• Monitoring/posting procedures

Website accessibility continuedTwo technical accessibility standards:

• Section 508 standards

• WC3 Guidelines (WCAG)

Not the same but will be very similar after 508 standards revised.

• Every state has an accessible website or technology law/policy adopting on or both standards

• DOJ: website access required (no standards specified)

• Complying with neither violates ADA/504

• HHS- Exchange websites: 508 compliance sufficient

• Must be accessible

Information kiosks

• Accessible Exchange websites, online applications, information, and notices

• Call centers must be accessible

• Ability to apply online, by phone, by mail, and in person

Health care reform

• No right to first choice of auxiliary aid/service

• Can provide alternative if provides an equal opportunity to participate/benefit

• Defense: fundamental alteration or undue burden

- Burden is on you to prove

- “It costs too much” not sufficient

- Program budget/earnings relevant

Limits on obligations

• Meaningful access to LEP individuals

• Federal agencies - Language Access Implementation Plan

Communication with individuals with limited English proficiency (LEP)

Communication with individuals with limited English proficiency (LEP) continued

How to provide access:

• Bilingual staff

• Oral interpretation (in-person and remote)

• Verbal or written translations of documents

Communication with individuals with limited English proficiency (LEP) continuedIn deciding what to do/for whom, should consider:

• Number or portion of LEP persons

• Frequency of contact with the program

• Nature/importance of program/activity

• Resources and costs

Communication with individuals with limited English proficiency (LEP) continued

Health and Human Services (HHS) requirements:• Translate vital documents into languages used by

5% or 1000 (whichever is less) of population eligible to be served or affected, and

• Give written notice of right to get vital documents orally translated to other languages

• Strong evidence of compliance

Risks if don’t complyLawsuits/admin complaints have been filed against

• Social Security Administration - notices in alternative formats

• Treasury Department - inaccessible paper currency

• Atlanta transit agency - inaccessible website, bus schedules

• Universities - inaccessible technology

• Banks - not accepting relay calls

• Countless health care providers - no sign language interpreters

Defendants lost or settled and agreed to provide accessibility

ADA/504 enforcement agencies look at telephone/web/print information accessibility during investigations/compliance reviews