Washington Hearing Loss Lawyer & Attorney : John Waldo Law Firm : Hard of Hearing, Disability, Hearing Impairment : Seattle, Bainbridge, Washington, Pacific Northwest

Captioned theater made its Washington State debut Sunday evening, Aug. 10, when Seattle's Paramount Theatre presented a captioned version of A Chorus Line.

The captions, provided and operated by the Caption Coalition (c2net) of Boston, were displayed on a portable message board set up in front of the stage in synch with the performance. David Chu, founder and CEO of c2net, was on hand to personally oversee the preparation and display of the captions. Paramount Theatre set aside a generous block of 80 tickets in the right-orchestra section of the theater, from where the captions were clearly visible.

Despite less than a month's notice, summer vacations and little public advertising (other than what we were able to do on this website and through Washington's hearing-loss organizations), we had over 50 people request seats in the caption area. Paramount Theatre manager Mason Sherry said afterwards that he thought the performance went well, and seemed optimistic about future captioned performances.

The news from Seattle's other major theater, though, has not been good. 5th Avenue Theatre, which bills itself as Seattle's largest theatrical employer, has declined to provide captioned performances, claiming that doing so would constitute an "undue burden." 5th Avenue said that captioning one performance of each of the seven productions it presents in any one season would cost $14,000, and it claims that it can't make room in an annual budget of some $19 million to provide for captioning.

If captioning were declared to be an "undue burden," 5th Avenue would not be required to provide it. However, in order to claim that providing an accommodation like captioning constitutes an undue burden, the facility must show that it can't reduce expenses, can't expect a revenue increase from the expected new audience, can't raise enough revenue by increasing admission charges to everyone, and can't find a sponsor.

Because 5th Avenue did not provide any information to substantiate its claim that captioning would constitute an undue burden, the Washington State Communication Access Project (Wash-CAP) filed suit last week in state court in Seattle. Our complaint did not ask for money damages, but asked that 5th Avenue provide captioned performances like the performance provided by Paramount. Trial is not scheduled to occur until January of 2010, but we hope to work out a settlement with 5th Avenue well before that date.

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We've been in constant touch with Seattle's Paramount Theatre representatives over the last 24 hours. We're happy to report that what was yesterday a pretty chaotic situation (which chaos was responsible for yesterday's semi-snarky post) has now been clarified, and it now appears that captioned live theater will indeed be available to Seattle audiences.

Paramount is setting aside 40 tickets for the captioned performance of A Chorus Line on Aug. 10 at 6:30 p.m. Tickets are available in that block at a discounted price of $38.

To get those tickets, call the Paramount box office at 206-467-5510 and state that you want tickets in the caption section. You can also use the Ticketmaster TTY line, 800-725-6244. Given the brief time between now and the performance, it hasn't been possible to arrange for on-line purchases of these tickets with Ticketron.

Anyone who pulled the trigger yesterday based on the information that was then available (including me) and bought tickets outside the caption section can exchange them by mailing the physical tickets back to Paramount, and explaining that they were purchased outside the caption section before learning about the block-seating arrangement..

Like many theaters, Paramount does have assistive listening devices (ALDs), and does offer sign-language interpreted performances. Unitl now, though, they have offered nothing for those of us who don't hear well enough to follow dramatic dialogue or sung lyrics even with the ALDs, but who don't use sign language. We've found that there is relatively little awareness that people in that hearing "gap" exist as a distinct group with distinct requirements which are very different from the needs of the culturally deaf, who use sign language.

We're hoping for a great turnout, and that this will be the first of many captioned-theater experiences in Seattle.

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After considerable prodding and a certain amount of nail-biting on our part, it appears that captioned theater will indeed make a Seattle debut when the Paramount Theatre offers an open-captioned performance of A Chorus Line on Sunday, Aug. 10, at 6:30 p.m.

The captions will be visible from the ground floor orchestra-right section. Here's a link to purchase tickets for that particular performance. (THIS IS NO LONGER OPERATIVE -- SEE SUBSEQUENT POST).

Since this is the debut of captioning, we can excuse some "opening night jitters." Nevertheless, this hasn't gone exactly smoothly. Paramount evidently didn't commit to the captioning until last week, and didn't post information on its website until today (July 16). It isn't clear whether Paramount has set aside a block of tickets in areas where the captions will be most visible, there is no special link on the website that lets us purchase those tickets, and there does not appear to be any price for the tickets except the normal (hefty) price for orchestra-section seats. So there is still a long ways to go before those who require captioning are treated on a par with folks who need an ASL-interpreted performance.

The best way to ensure that we have more captioned theater is to attend.  

One of the objectives of the Washington State Communication Access Project (Wash-CAP) is to make live theater performances accessible throughout Washington to those who are hard of hearing or deaf, and particularly for the vastly under-served population that doesn't use sign language. This is one small step, but it is in the right direction.

 

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The Washington Communication Access Project (Wash-CAP) filed suit today in state court in Kitsap County, Washington, asking for an order requiring Washington State Ferries to display the text of messages given aboard the system's vessels and at its terminals.

Our complaint notes that WSF operates the nation's largest ferry system, carrying 26 million passengers annually, and that it routinely makes public-address announcements that convey a broad array of information to its patrons. Those announcements, though, are unavailable to deaf and Hard of Hearing passengers.

The local press picked up on the lawsuit. It was the lead story in the Kitsap Sun on Tuesday, July 8, (complete with snarky but anonymous reader comments) and was in the Bainbridge Island Review on Wednesay, July 9.

I had carried on correspondence with WSF for several months before filing the suit. While WSF officials initially appeared responsive, saying at least that they acknowledged that the present system is problematic, they were very vague about any remedies. When pressed, they said that their systems aren't designed to display information broadcast over the PA system, but that they would investigate ways to contact crew members and request help.

At best, then, WSF was offering the kind of dependency that the D.C. Circuit recently rejected in the landmark case involving paper money and blind users. (And did you catch the absolutely lovely Associated Press story about the attorney who brought that suit?) Even then, I was skeptical, because WSF explicitly states that its crew members will not assist mobility-impaired passengers -- the only "accommodation" WSF will make to such passengers is to allow an attendant to ride free.

Wash-CAP felt a need to move relatively quickly against WSF because the ferry system is currently undertaking an in-depth review of its operational and capital needs. Wash-CAP wants to make sure that both the system and the State Legislature take the needs of the hearing-loss community into account as they make plans for the future.   

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A federal judge in Arizona has just come out with an absolutely awful decision about movie captioning. The case was brought by the Arizona attorney general's office, which asked that movie exhibitors provide captioning to make movies accessible to people with little or no hearing, and narrative descriptions to make movies accessible to people with little or no vision.

The court ruled that the Americans With Disabilities Act (ADA) requires neither captioning nor narrative descriptions. Worse than the result was the reasoning. The opinion states that converting dialog into captions or visual material into narrative would fundamentally alter the nature of movies.

Since the ADA does not require public facilities to fundamentally alter the nature of their services, this ruling would mean that far from needing to expand their offerings of captioned movies, theaters may in fact eliminate the limited offerings of captions they currently provide.

Because of the important place that movies occupy in our culture, expanding the availability of either open-captioned movies (where captions are visible from throughout the theater) or close-captioned movies (where captions are displayed only to patrons requesting them) has been a fundamental goal of the hearing-loss community.

The ADA itself has been interpreted as not requiring that all movies be open-captioned. Nevertheless, persuasion and litigation has produced mixed results -- limited availability of both open- and closed-captioned movies at a few theaters in a few locations. The trend in Washington, where litigation has been contemplated but not filed, has been positive but frustratingly slow. A few theaters offer close-captioned showings of selected films, while other theaters offer intermittent open-captioned showings of selected films. Similarly, a few theaters are offering narrated descriptions of selected films.

The Arizona decision is a giant step backwards. By declaring the conversion off aural material into text (or vice versa) to be a fundamental alteration and not required under ADA, the court is saying that no matter how easily or inexpensive that conversion might be, it is never required under federal law. Worse yet, nothing in the opinion is limited to movies -- the reasoning would also rule out captioning of live-theater presentations, lectures and so forth. We might be entitled to devices that will amplify the sound, but not to anything else.

The decision is being appealed to the Ninth Circuit Court of Appeals, which includes Washington, meaning that the rule of law that comes out of the case will apply here. A number of national advocacy organizations that represent the interests of both hearing-loss and  vision-loss constituencies are planning to file legal briefs urging that the decision be overturned. Wash-CAP is considering filing a brief pointing out the impact this decision could have in the State of Washington.  

Courts make bad decisions every day that we figure out how to live with. Once in a while, though, courts make decisions that are so unbelievably bad that you shake your head and say, "How could this happen?" This is one of those cases. This is also why we have appeals courts. Nothing is ever certain in the legal world, but this decision is so far off base that I have a relatively high degree of confidence that it will be overturned on appeal.

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Seattle's huge Paramount Theatre will offer a captioned performance of A Chorus Line in August of this year. That's a step in the right direction, even though it may be small and somewhat half-hearted.

When we get the exact date, we'll post that information on this site, and prod Paramount to post it on its website as well. Nothing will do more to spread the availability of captioning than a good turnout from the hearing-loss community.

Paramount's offer came in response to correspondence I have been conducting over the last several months with Paramount and with other Seattle theaters. I've been trying to make then aware of the unique needs of those of us in the hearing-loss community who do not use sign language, and especially those of us non-signers whose hearing loss is such that Assistive Listening Devices don't let us fully understand dialog and song lyrics.

I've referred to this group as the Significantly Hard of Hearing or SHOH, and I define that group specifically as those who don't gain full enjoyment of a performace through ALDs, but who do not sign, and therefore derive no benefit from ASL-interpreted performances. I've said that the SHOH require captioning in order to enjoy a theatrical performance.

The news from Paramount is not all good. Paramount says that it will seek feedback on the captioned performance from "the deaf and SHOH community." Paramount still makes the basic mistake of looking at us as one unified community. While we may have similar interests and similar sensory challenges, the accommodations we require are very different.

As I have pointed out to Paramount, asking those groups what they want is a waste of time. I'm absolutely certain that when you ask the culturally Deaf what accommodations they need, the answer will be, "ASL-interpreted performances," and if you ask the SHOH, the answer will be "captions." Just as it makes little sense to ask the SHOH to comment on the quality of an ASL-interpreted performance, it also makes little sense to ask the Deaf about the quality or adequacy of captions.

Ever the optimist, I'm hopeful that Paramount's response comes from naivete rather than from a deliberate effort to pit to groups against each other. In any event, the offer of a trial captioned performance is a step in the right direction, even if it might be a small and half-hearted step.

Rather than continuing to advocate as an individual for access to public facilities, my future work in this area will be undertaken in cooperation with the Washington State Communication Access Project, or Wash-CAP. I invite you to learn more about Wash-CAP, and join our efforts to open Washington's public places to those of us with hearing loss.

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The hearing-loss community got a big courtroom assist from the vision-loss community earlier this month.

In a case that made national headlines, the District of Columbia Circuit Court of Appeals declared that U.S. paper money discriminates against the visually impaired, because there is no way other than through sight to identify the denominations of the bills. Pointing out that virtually every other country makes currency where the denominations can be separately identified by touch, the court declared that the Treasury Department had failed to demonstrate why it couldn’t do likewise.

The government – and indeed, one blind-advocacy organization – argued that this was a “no-harm, no-foul” situation, because blind folks could reliably depend on the kindness of strangers to identify the denomination of bills, and the complaining parties hadn’t demonstrated any actual harm. The court rejected that argument, noting that a prime purpose of disability law is to promote the independence of people with physical or sensory challenges -- in other words, to eliminate the need to rely on others.

Although that case was brought under the federal Rehabilitation Act, it has broad and very helpful implications for Wash-CAP’s efforts to expand access for those of us with hearing loss. The court declared that once plaintiffs showed that many other nations produced bills distinguishable by feel, the burden then shifted to the U.S. Treasury to demonstrate why it couldn’t do likewise. That is exactly the argument Wash-CAP is making to the Paramount and 5th Avenue Theatres in Seattle in requesting captioned performances – theaters in other cities do it, so why can’t you?

I worry about whether this case will hold up on appeal. It is solidly reasoned, in my view, but currency redesign is such a high-profile issue that the U.S. Supreme Court may be inclined to review the case, and the Supremes – especially Justices Scalia and Thomas – have been overtly hostile to disability claims. But the DC Circuit is an enormously influential court, so if the decision isn’t upset – or, if it is upset only on a procedural technicality, such as the technicality that provoked a dissent – this will become essentially the disability-law case that we will all cite all the time.

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Recognizing that the odds of becoming totally or partially disabled during one's work life are fairly high, many far-sighted employers and even a few individuals carry long-term disability insurance. Those policies have proved to be a godsend to many of us with hearing loss.

The general thrust of disability insurance is that it replaces a portion of your income if your physical condition materially interferes with your ability to earn a living. While those policies have many variations, and there may be exceptions to every generality, most of them do cover hearing loss. And unlike Social Security, many of the private policies insure against the inability to do your own pre-disability work -- the fact that you can do other work may not prevent you from receiving benefits.

The cause of the loss is generally not significant -- coverage would exist if the hearing loss was caused naturally rather than through workplace noise or accident. And while a sudden hearing loss is most often the trigger for coverage, many policies are written in such a way that a change in workplace standards could trigger coverage even without a change in the individual's hearing.

What is generally involved in a disability insurance claim is medical determination that the condition exists, followed by a demonstration as to why the condition prevents the claimant from working at pre-disability levels.

Under Washington law, an insurer who unreasonably denies a claim is liable for attorneys' fees, and may be liable for as much as three times the benefits due. While that statute exempts health-insurance policies, it DOES NOT exempt disability-benefit policies.

A fairly recent article in the New York Times said that some disability insurers are demanding that a claimant first apply for Social Security disability benefits, even in situations where the disability insurer knows that the applicant won't receive them. Because the threshhold for receiving Social Security benefits based on hearing loss is so high, as discussed in the entry involving Social Security, we would suspect that in most instances, any insurer who required such a filing would simply be trying to delay payment, in which case, a claim for recovery of attorneys' fees would seem quite strong, and a claim for enhanced damages would be credible.

 

 

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Unlike state L&I benefits, Social Security disability tends to be an all-or-nothing proposition. The disability must be permanent, and it must be severe enough to prevent the individual from engaging in any gainful employment -- there are neither temporary nor partial benefits.

To base a Social Security disability claim on a hearing loss, the "bright-line" test for disability is a loss in both ears such that the average threshhold is 90 db or greater, measured by the method explained in the "How Bad Is My Hearing?" section. If your loss is less severe, you will have to demonstrate that its impact on you is equally serious -- essentially, that you are functionally totally deaf.

Even if you demonstrate disability under those tests, you will still not receive benefits if you are actually working and earning more than $980 per month.

As a general philosophical matter, we don't encourage filing Social Security disability claims based solely on hearing loss. We regard hearing loss as an inconvenience that can be overcome with proper accommodations, so our first approach is to look for ways that the affected individual can remain or become employed.

In those instances where continued employment is simply not possible, such as where an employer is too small to be covered by state and federal laws protecting those of us with physical challenges and where the affected invdividual is so close to retirement age that retraining isn't feasible, then we will assist in obtaining Social Security disability benefits.

Like most attorneys, we will handle such cases on a contingency basis, where our fee is based on a portion of the recovered benefits. Under federal law, the fee can only be based on the amount of accrued but unpaid benefits recovered -- it cannot be based on the value of future benefits. Fees are limited to 25% of the back benefits -- it's a federal crime to charge more.

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