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

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.

• Email This
• Print
• Comments
• Trackbacks

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.

 

 

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

 

The state of Washington recognizes hearing loss caused by noise exposure as one form of occupational injury deserving compensation. Compensation is awarded without regard to who may be at fault.

Washington treats hearing loss as a permanent partial disability, meaning that the affected individual is still able to work, but may not be able to earn as much as before the loss. Individuals who suffer a permanent partial disability are entitled to a single lum-sum payment. 

Some large employers are self-insured, and pay the required compensation directly to the worker. Other employers belong to a statewide insurance pool administered by the Division of Labor & Industries (L&I). In either case, compensation is determined according to a schedule mandated by the Legislature.

The amount paid for hearing readjusts every July 1 based on changes in the Consumer Price Index. As of July 1, 2007, the lump-sum amount paid for complete loss of hearing in both ears is $81,302.91. The amount paid for complete loss of hearing in one ear is $13,550.40. (A discussion of how hearing loss is measured in found in the "How Bad Is My Hearing?" section)

Where the hearing loss is partial rather than total, L&I benefits are paid in proportion to total loss, so someone with a 70 percent binaural loss would receive 70 percent of the amount awarded for a total loss.

L&I claims are originally filed by the claimant's physician. If the claim is denied, then claimants are advised to hire attorneys to appeal the denial. A successful claimant is entitled to recover attorneys' fees as well as the award, so often, the claimant need not pay fees unless the claim is successful, and need not pay the attorney out of the amounts recovered.

L&I also pays for medical costs -- this is one situation in which someone else will actually pay for needed hearing aids.

The legal questions surrounding compensation for hearing loss have generally involved trying to fix the time when the loss occurs. Employers have often argued for the earliest possible date of onset, because compensation then would be paid under an old and more modest benefit schedule. Washington's court have resolved this dilemma by adopting a sliding scale in which the first measured loss is compensated under the schedule in effect at the time of the initial loss, and then as further loss occurs, the incremental loss is compensated under a newer schedule. It's a multi-step but fairly straightforward computation.

Because hearing generally diminishes as we get older, some medical experts have tried to separate out age-related hearing loss from noise-related loss. Washington courts have rejected that apportionment formula, stating that the L&I statutes require individualized determinations, and that overall averages can't be used. As a result, a 60-year-old worker with a noise-related loss would receive the same compensation as a 30-year-old worker with the same loss, even though there is a reasonable statistical probability that the 60-year-old's hearing would be worse had neither been exposed to noise.

• Email This
• Print
• Comments
• Trackbacks

HEARING AIDS

For most of us with hearing loss, our best remedy is one or two hearing aids. Unfortunately, most health-insurance policies specifically exclude hearing aids, as does Medicare. So we must absorb those costs ourselves.

The reason for that almost universal exclusion is obscure, but apparently dates from a time prior to electronic miniaturization, when hearing aids were very primitive and largely ineffective. The Hearing Loss Association of Washington is  working on Hearing Aid Insurance Legislation (HAIL), to require some coverage for hearing aids.

The picture is a little brighter for those (primarily self-employed people) who have bought high-deductible health-insurance policies coupled with a Medical Savings Account. The tax-deductible money put into the MSA can be used not only to meet the deductible amounts of the insurance policies, but to pay for medical needs not covered by the insurance policy, which includes hearing aids. So for those individuals, hearing aids can at least be purchased using pre-tax dollars.

COCHLEAR IMPLANTS

Cochlear implants (CIs) have proven to be a huge blessing for those who lose all or almost all of their hearing, especially those who do so later in life and have always been part of the hearing community. While often effective and widely prescribed, CIs are expensive -- $60,000 and up. Because of that cost, insurance coverage is critical -- my suspicion has been that many of not most CI candidates will simply forego the treatment if insurance coverage is unavailable.

Private Insurance

Health insurance policies are similar, but not identical, and one hates to speak in generalities because there may be exceptions. That said, my understanding is that most Washington health insurance plans will cover the cost of a CI.

Because insurance coverage is so critical, the implant manufacturers will work actively to make sure that potential recipients are covered by their insurance. Some of the manufacturers band together to support a non-profit corporation in California called the Let Them Hear Foundation Insurance Advocacy Program, which offers low-cost advocacy services to potential recipients.

Public Insurance/Medicare

In 2005, Medicare issued a National Coverage Determination stating that it would reimburse for CI treatment on patients with moderate-to-profound hearing loss in both ears and who receive limited benefit from hearing aids, which involves a test of ability to recognize spoken words in a recorded sentence. When a physician certifies that a Medicare recipient meets the guidelines of the National Coverage Determination, the service doctors and manufacturers should be assured of Medicare reimbursement.

Bilateral Implants

The principal debate presently about CIs is over whether implanting both ears is sufficiently cost-effective to be declared "medically necessary," and therefore covered by insurance. Our understanding is that the trend is in the direction of insurance reimbursement for bilateral implants, but that it is not yet a universally accepted practice.

Medicare appears to be a significant holdout, and the real problem with Medicare is pre-authorization. When Medicare is asked to pre-approve bilateral implants, it doesn't say "yes" or "no" -- it simply doesn't say. Unfortunately, when Medicare declines to pre-authorize, that decision is final, and can't be appealed to anyone. The candidate must undergo the surgery and then ask Medicare to reimburse, and if Medicare declines, that decision can be reviewed internally and ultimately appealed to the courts. Unfortunately, though, few candidates have the resources to undertake expensive surgery without the assurance of Medicare reimbursement.

My office is currently representing a Seattle woman in this exact situation. We believe the most effective approach is to petition Medicare for a National Coverage Determination stating that bilateral implants are covered. Should Medicare either fail to act or determine that bilateral CIs are not covered, then that decision is subject to review, both internally and in the courts. We have asked the LTH Foundation to either undertake this effort or to work in partnership with us. That effort will be the subject of future posts.

• Email This
• Print
• Comments
• Trackbacks

The first step in assessing eligibility for insurance benefits is to ascertain the degree of your hearing loss. Everyone's loss is different, but oddly, there is a generally accepted method by which the degree of loss is measured.

The calculation starts with a pure-tone audiogram, which plots the loudness level (in decibels) at which you perceive sound at different frequencies or pitches (measured in megahertz). Most hearing loss occurs in high tones. For example, at a very low frequency or pitch of 125 hz -- the equivalent of a really low note on a cello -- the decibel threshhold might be 25, meaning you can hear a relatively soft note. At a very high frequency of 6,000 hz -- the chirp of a cricket -- the threshhold at which you first hear the tone might be 100 decibels, a level that someone with full hearing would find quite painful.

Although the matter is the subject of considerable debate, the generally accepted rule, which Washington courts use, is that the critical frequencies for understanding speech are 500, 1,000, 2,000 and 3,000 hz. So to determine a percentage of hearing loss, you average the decibel threshhold shown on the audiogram for those four frequencies (if the db threshhold is over 100 db, you use 100).

That's far from the end of the calculations. Audiology professionals generally agree that one's ability to function doesn't begin to drop until the decibel threshhold reaches 25 db. On the other end of the spectrum, they agree that if the average threshhold is greater than 92 db, the person has no useful hearing. So to take those outer boundaries into consideration, you subtract 25 from your average threshhold, then multiply the remaining number by 1.5. The resulting number is your percentage hearing impairment in that ear.

One last computation is needed. One ear is not as good as two, but we'll do most of our hearing through our good ear. So rather than simply taking an average of each ear's threshhold, you give five times the weight to the better ear. Your overall hearing impairment, then, is five times the better ear plus the worse ear, divided by six.

Here is an example -- these values come from my most recent audiogram. My better right-ear threshholds are 50 db at 500 hz, 80 db at 1,000 hz, and in excess of 100 db at 2,000 and 3,000 hz. The total is 330, and the average is 82.5. Subtracting 25 and multiplying by 1.5 equals 86.25 percent impairment in that ear. My left ear threshholds at the four relevant decibel levels are 65, 85, 100 and 100 for a total of 350, an average of 87.5, and an impairment percentage of 93.75. Multiplying the better-ear number by five, adding the other number and dividing by six yields an overall impairment percentage of 88.5.

Here is the worksheet used by Washington physicians to calculate hearing loss.

Now it's critical to remember that the numbers don't tell the whole story -- not by any means. In the first place, impairment is calculated without our hearing aids, and good aids can reduce our level of impairment dramatically. Whether our loss occurred before or after we learned to speak has an enormous impact on our ability to speak clearly. Our speech-recognition (lip-reading) skills vary enormously.

The audiogram and impairment calculations may describe our hearing loss. But those number need not define or limit us as individuals. With the help called for by state and federal law, we can fully function in a hearing society. My law practice is dedicated to ensuring that result.

• Email This
• Print
• Comments
• Trackbacks

INSURANCE COVERAGE FOR EFFECTS OF HEARING LOSS

Hearing loss is a personal inconvenience, but it is frequently much more than that. Losses can dramatically affect our employment and earning capacity. The devices and treatments that we need to cope with our loss can be expensive -- sometimes prohibitively so.

The good news is that insurance in some form often addresses these issues. But because hearing loss is usually not anyone's fault, and because so many of us are in denial about the existence and extent of our loss, we often don't even consider investigating whether we might be eligible for certain beneffits. And because of the invisible nature of hearing loss, we may not get the same level of cooperation in seeking benefits that someone with a highly visible condition might receive.

This site contains general information about certain types of insurance. Health insurance -- that is, payment or reimbursement for medical costs, is provided by both private insurance carriers and by public plans -- Medicare and Medicaid. Disability insurance to compensate us for the loss of our earning capacity is also provided by both public and private carriers. Public insurance comes in the form of Washington State workers' compensation insurance, generally known as L&I (for Labor and Industries) coverage, and Social Security disability insurance. Private insurance is provided by a bewildering array of different policies.

• Email This
• Print
• Comments
• Trackbacks

WHAT OUR STATE LAW PROVIDES

The Washington Law Against Discrimination (WLAD) provides considerably more protection for individuals with physical or sensory challenges than does federal law.

The gist of the WLAD is RCW 49.60.030, which states as follows:

 (1)  The right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person is recognized and delcared to be a civil right. This right shall include, but not be limited to:

  (a) The right to obtain and hold employment without discrimination

  (b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement.

WHAT DOES THIS MEAN FOR PEOPLE WITH HEARING LOSS?

What the law tells us is that those of us who are Hard of Hearing (HOH) or totally deaf have the same right to get and hold a job, and the same right to enjoy public places as those folks with full hearing. Again, the law can't mandate medical miracles or force people to do what is technologically or economically impossible. But where providing us with sufficient help to function despite our hearing loss CAN be done, the law says that it MUST be done.

It is also important to note that being able to participate in the full spectrum of life is our civil right. When help is technically and economically possible, we should no more be satisfied going without than should people be told where they can and cannot sit on a bus due to their skin color.

HOW DO WE USE THE LAW TO OBTAIN OUR CIVIL RIGHTS/

What can we do if we are not given the help we need? Here is what the law says:

 (2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees.

HOW DOES OUR STATE LAW COMPARE TO THE FEDERAL DISABILITIES ACT?

State law does not define what exactly constitutes discrimination against the disabled. As an aid to applying the state law, Washington courts have looked to regulaltions implementing the federal Americans With Disabilities Act (ADA), and cases decided under ADA. So when the federal ADA says that it is discrimination not to provide auxiliary aids and services like assistive listening devices and open or closed captioning, those decisions would be incorporated into state law as well.

Unfortunately, the United States Supreme Court has construed the ADA in a way can severely limit its usefulness. In 2006, the Washington Supreme Court ruled that our state law should also incorporate those limitations. Our State Legislature disagreed, though, and passed a statute in 2007 essentially rejecting those narrow constructions, and stating specifically that the WLAD provides independent and broader protections than the ADA.

THE SPECIAL BENEFITS OF OUR STATE LAW.

The state WLAD has two other significant advantages for those who claim discrimination.

First, there is a directive in state law that it be "liberally construed." A directive to construe a statute liberally -- which directive does not exist in ADA -- means generally that if the case is one that could rationally be decided either way, the court should decide in favor of the claimant.

Second, the federal ADA states that in any lawsuit,  the prevailing party can recover attorneys' fees, meaning that anyone who brings a legal action is potentially at risk of paying the other side's lawyers. Under WLAD, though, the attorney-fee provision is a one-way street -- the claimant recovers fees in a successful action, ut is not at risk of paying fees should the action not succeed.

Because of the WLAD, Washington is a particularly promising place to pioneer removing those barriers encountered by the HOH community. When and if it becomes necessary to ask a court for help in establishing our rights, cases could be won in Washington that couldn't be won elsewhere under the ADA. Moreover, because of the one-way attorney-fee provision, there is far less risk involved in bringing cases where there is no clearly established precedent.

    
 

• Email This
• Print
• Comments
• Trackbacks

How the law deals with hearing loss.

Our modern world communicates mainly by sound, which means that those of us who have lost some or all of our hearing face significant obstacles in our daily lives, whether on the job, in school, in our social or civic lives, in using the goods and services we buy, and sometimes in getting the medical services we need.

A number of state and federal laws exist to help us. The laws can't restore our hearing, but they can and do require that when it is economicallly and techically possible, we be provided with accommodations, aids and services that will enable us to overcome the barriers imposed by our hearing loss.

Here is what some of those laws provide:

“The right to be free from discrimination because of … any sensory, mental or physical disability … is recognized and declared as a civil right. This right shall include … the right to obtain and hold employment without discrimination (and)  the full enjoyment of … any place of public resort, accommodation, assemblage or amusement.”

                                                                                                          Washington Law Against Discrimination

“No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits, services or programs of a public entity.”

                                                                                                            Americans With Disabilities Act, Title II

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.”

                                                                                                           Americans With Disabilities Act, Title III

John Waldo, a Bainbridge Island, Washington, lawyer, works to put those legal ideals into practice. As advocacy director on council for the Washington State Communication Access Project (Wash-CAP), John works with that organization to advocate for measures that will lower barriers for all of us with hearing loss. Apart from Wash-CAP, John also represents people who confront individual problems relating to hearing loss in areas such as employment discrimination, education, worker's compensation or insurance problems.

John's interest is highly personal. He has a significant hearing loss, and wears hearing aids in both ears. Using his two decades of experience, principally in complex litigation, John is focusing his practice on making all of our lives richer by implementing the protections provided by state and federal laws.

For more information, or to discuss your legal needs with John, send a text message to (206) 849-5009, or email him at johnfwaldo@hotmail.com or john@wash-cap.com. You can also reach him by mail at 151 Finch Pl. SW, Suite C, Bainbridge Island, WA 98110 or by fax at 206-841-4891.

You can also telephone 206-842-4106, but because of John's hearing loss, email or text messages are likely to be more productive.

• Email This
• Print
• Comments
• Trackbacks

EXCEPTIONS TO ADA COVERAGE:

There are several areas that are often thought of as being subject to ADA, but which are, in fact, not covered. In most cases, that is simply because other laws apply, often with essentially equal effectiveness.

FEDERAL FACILITIES AND EMPLOYMENT: Here is a situation in which ADA does not apply, but individuals are well protected. What applies when dealing with the federal government is the Rehabilitation Act of 1973, which prohibits disability discrimination under any program or activity conducted by the federal government or the post office. The anti-discrimination provision, known as Section 504, also applies to activities substantially funded by the federal government. In many respects, Section 504 is the "father" of ADA, with the latter being an effort to extend the protections of Section 504 to a much larger variety of activities. (The very important case declaring that U.S. paper currency discriminates against blind individuals was decided under Section 504).

PUBLIC ELEMENTARY AND SECONDARY EDUCATION. Again, individuals with disabilities have significant protection in an educational setting, but not under ADA. In 1975, Congress passed a statute dealing with the education of pupils with special needs, which law is now called the Individuals With Disabilities Education Act (IDEA). Generally speaking, students with hearing issues are entitled to the aids and services necessary to succeed in a classroom setting. The outcomes under IDEA tend to be similar to the outcomes under ADA, which applies to private schools (but not to religious schools), but the procedures are considerably more complex.

In a rather troublesome early case under IDEA's predecessor laws, the U.S. Supreme Court determined that a deaf student was not entitled to a sign-language interpreter, because even though the student understood less than half of what the teacher was saying, the student's performance was still adequate to superior. Fortunately, that precedent, although honored in theory, has frequently been essentially ignored in practice, and schools have been directed to provide reasonably extensive services to students with hearing loss even if the students are performing well academically.

Colleges and universities are governed by ADA -- either the governmental entity or public-facility provisions, depending on whether the school is public or private -- and by Section 504 if the school receives federal funds.

PERMANENT HOUSING. While hotels are governed by ADA, permanent housing is not. What applies instead is the Federal Fair Housing Act. Like the ADA, the federal fair-housing laws prohibit discrimination against the disabled, but the crucial distinction is that the fair-housing laws define discrimination differently. Rather than requiring the facility to provide aids and services at its expense, the fair-housing laws require only that the owner permit a tenant to install aids and services at the tenant's expense. Moreover, the property owner can require a tenant to remove the aid and service upon vacating the property, and to pay for the cost of restoring the premises to its pre-modified condition.

The fair-housing laws impose very limited structural requirements on new construction, but those requirements are mostly designed to accommodate those who use wheelchairs, and do not address hearing loss in any way. It would seem that as a policy matter, landlords, who are required to install smoke alarms, should be required to install effective alarms for tenants with hearing losses. An effort is under way to pass such an ordinance in the City of Seattle, but at the moment, no such requirement exists.

AIR TRANSPORTATION.

Airports are covered by ADA, but air transportation is not. Rather, transportation is covered by the Air Carrier Access Act, as modified by the Airline Deregulation Act.

The combination has proved most unfortunate. Those laws don't allow individuals to vindicate their rights in court. Instead, we're left to complain to the federal Department of Transportation, which makes as well as enforces the rules.

Unfortunately, DOT has proved far friendlier to the airlines than to the consumers. DOT has, for example, rejected any requirement that in-flight entertainment systems on existing airplanes be modified to show captioned movies. In making that determination, DOT relied to a significant extent on a so-called cost-benefit analysis from the airlines showing that captioned in-flight movies wouldn't increase airline traffic in an amount equal to the cost. The potential benefit to those of us who already fly wasn't even considered.

To make matters worse, "air transporation" doesn't begin when you board the airplane -- rather, DOT regulations begin and ADA protections end when you pass through the security gates. DOT has rejected any requirement that announcements made at the gates be captioned. This is a particular problem at the SeaTac airport, because SeaTac does not have a central paging system -- all announcements for individual passengers are made by the airlines, and those are not subject to ADA requirements.

I do not believe the situation for air travelers with hearing loss is going to improve until either Congress acts to remedy the current situation, or we have a Secretary of Transportation whose orientation is more evenly balanced between the needs of the travelers and the needs and wishes of the airlines.

 

• Email This
• Print
• Comments
• Trackbacks

PUBLIC FACILITIES: ADA requires that every "public facility" furnish aids and services that will enable us to fully enjoy the services provided. "Public facility" is a broad term that encompasses virtually every place we might patronize, including places like hospitals, doctors' and lawyer' offices, stores, theaters and so forth. While public facilities do not have to give primary consideration to our individual requests, they do have to accommodate us in the most integrated setting possible.

Again, the facility need not provide aids and services that would constitute an undue burden, and again, that is determined in reference to the enterprise as a whole. For example, a doctor cannot refuse to provide a sign-language interpeter for a deaf patient simply because the interpreter costs more than the amount charged to the patient -- the question is whether the doctor's entire practice is able to absorb that cost. Nor can the facility charge more to patrons who request aids and services.

There are some significant exceptions. Any entity operated by a religious organization is exempt from the public-facility requirement, even if the entity serves only a secular purpose. (Although they are not covered by the ADA, many churches have been among the leaders in providing aids and services). Bona fide private clubs are also exempt, but there are fairly stringent tests to determine which private organizations can claim this exemption. Organizations that require a membership fee but are open to all would seldom qualify, and if a private club rents its facilities to the public, at least some of its activities may be covered by ADA.

• Email This
• Print
• Comments
• Trackbacks

GOVERNMENT ENTITIES. We're all entitled to participate in the civic life of our city, state and nation, and we're entitled to enjoy the benefits provided by the government. So in most instances, any facility or service operated by a state or local government must offer aids and services sufficient to ensure that communication with us is as effective as communication with those whose hearing is undiminished. In determining what aids and services to offer, public entities must give "primary consideration" to our preferences.

The most significant national case dealing with the duties of public entities towards those with hearing loss comes from Kitsap County. A man asked that his divorce trial be captioned. Instead, he was offered listening devices, a small and acoustically friendly courtroom, and the opportunity to move around so that he could speech-read the testifying witnesses. The Ninth Circuit Court of Appeal ruled those aids and services were insufficient. It reminded the county of its obligation to give "primary consideration" to the requests of the individual, and warned abainst furnishing aids and services based on "stereotypes," such as the belief that assistive listening devices are adequate for all individuals with a hearing loss, or that all of us benefit from sign-language interpretation.

In the wake of that decision, the Washington Supreme Court adopted General Rule 33, which applies to all non-federal courts in Washington. It provides that any participant in a court proceeding is entitled to the aids and services they request if they give two weeks' notice unless it would be impossible to provide the service an the date scheduled for the proceeding, and it would be impossible to continue the proceeding until the aids and services became available.

While GR 33 takes care of the access problem for parties, witnesses, jurors and attorneys, it leaves open the question of whether aids and services have to be provided for spectators. My own view is that ADA essentially requires equal treatment where possible, and that if a court proceeding is open to hearing spectators, then aids and services must be provided to make the proceeding equally open to those with hearing losses.

• Email This
• Print
• Comments
• Trackbacks

EMPLOYMENT. ADA prohibits covered employers -- those with more than 15 employees -- from refusing to make reasonable accommodations sufficient to allow those of us with hearing impairments to do the job, or from refusing to hire us on the basis that accommodations would be required. This means, for example, that our employers may have to obtain and pay for things like telephone amplifiers, captioners for meetings and seminars, or assistive listening devices. If we can't do our job even with a reasonable accommodation, the employer may have to try to find a job that we can do.

Where good hearing is a critical qualification for the job, ADA does permit employers to discriminate. For example, a fire department was permitted not to hire a fireman with a hearing loss. The court reasoned that in the noise of a fire, where the safety of everyone depends on appropriate and coordinated action, a firefighter who couldn't hear instructions would be ineffective and a danger to others. Because water can render a hearing aid ineffective, the department was allowed to refer to the applicant's uncorrected hearing in making the decision.

Moreover, the ADA does not require an accommodation that would impose an "undue hardship" on the employer. That doesn't mean that the employer may weigh the cost of the accommodation against the financial benefit from providing it. Rather, the "undue hardship" test looks at whether the cost of the accommodation is one that the business as a whole can absorb.

• Email This
• Print
• Comments
• Trackbacks

Passed in 1990 and effective in 1992, the federal Americans With Disabilities Act (ADA) had the stated purpose of providing "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." The statute defines "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities."

While some folks with hearing loss may take issue with characterizing that situation as a "disability" or an "impairment," that is the language used in the ADA. There does appear to be universal agreement that hearing is a "major life activity" within the meaning of the statute. So those of us whose hearing loss is more than trivial have never had any difficulty arguing that we are covered by the ADA.

As a general rule, ADA requires that we be provided with "reasonable accommodations" or "auxiliary aids and services" so that we can function adequately despite our hearing loss. Examples of the aids and services that must be provided are assistive listening devices, open and closed captioning and sign-language intepreters. Hearing aids, though, are considered to be for personal use, and we must provide those ourselves.

The ADA protects covered individuals in a number of contexts, principally employment, activities and services offered by public entities, and activities and services offered by what are called "public accommodations" -- privately owned facilities open to the public. Continue reading this post for more specific information about each of those applications of ADA. Several areas not covered by ADA are also addressed in the continuation, including public elementary and secondary education, housing and air travel.

ADA permits individuals who believe they have not received the required accommodations or aids and services to go to court and seek an order requiring that those things be done. If the claimant is successful, then the other party must pay the claimant's costs, including attorneys' fees.

Our office represents individuals with hearing loss -- both those who are hard of hearing and deaf -- in obtaining the protections they are entitled to under ADA. Because of the provision allowing fees to be recovered, we are generally able to handle these cases at little or no cost to the individual. For more information, contact us at johnfwaldo@hotmail.com, or at (206) 842-4106. 

Importantly, the ADA does not invalidate state laws that provide greater protection to affected individuals. The Washington State Law Against Discrimination is one such law, and WLAD is considerably broader and potentially more powerful than ADA. WLAD is the subject of a separate topic on this website.

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks