Effective Communication with Individuals with Disabilities

1. Effective Communication with Individuals with Disabilities Tennessee Clerks of Court Conference June 15, 2011 Shelia A. Odusote, Paralegal Disability Law & Advocacy Center of Tennessee (DLAC) www.DLACTN.org

2. Disclaimer • I am not an attorney. • This presentation is intended to provide you with some general information about effective communication with people with disabilities and related legal issues. Nothing in this presentation is legal advice about a specific situation. • For legal advice regarding a specific situation, contact your attorney.

3. Disability Law & Advocacy Center of Tennessee (DLAC) • Tennessee’s Protection and Advocacy agency • Federally funded and mandated • Assists individuals with disabilities • Handles selected issues with Vocational Rehabilitation, Education, Abuse and Neglect, Accessibility, Disability Discrimination, Voting, TBI, and Assistive Technology

4. DLAC, continued • Provides a range of legally based services • Must have a documented disability to receive case services • Most services are free. • Co-counsel on Lane v TN– resulted in accessible TN court program including ADA policy and reasonable modification form • One of our current priority areas is effective communication with people with disabilities • Involved in Access to Justice efforts

5. Legal Requirements Related To Communication with People with Disabilities • The Americans with Disabilities Act (ADA) is the primary law which prohibits discrimination against people with disabilities. • The ADA requires effective communication with people with disabilities. • The ADA applies to private businesses and state/local government entities. • The ADA applies to court programs and services

6. ADA Definition of Disability • a mental or physical impairment which substantially limits one or more major life activities, or • a history of such an impairment, or • being regarded as having such an impairment 42 U.S.C. § 12102(2)

7. “Physical or mental impairment….” Paralysis Blindness Mental Illness Addiction* HIV/AIDS Hypertension Cancer Etc. “…which substantially limits one or more major life activities….” Self care Performing manual tasks Walking Seeing Hearing Speaking Breathing Learning Working Definition of Disability Part I

8. “…a record of having such an impairment,” Cancer in remission Heart disease under control Addiction Psychiatric disability Others…. “…or being regarded as having such an impairment…” Facial disfigurement Eccentricity Age deemed a disability Others… Definition of Disability Part II

9. State and Local Government Entities • The ADA applies to state and local governments • The ADA applies to court programs and services • Hearings and Trials • Clerk’s office • Court information (ex., summons, jury notice) • Any other court program or service • The ADA applies to court offices and staff • Generally, ADA requires courts to provide effective communication. TN law contains additional requirements for courts.

10. ADA Prohibits Discrimination The ADA prohibits courts from discriminating in the operation of programs or services against a person due to disability. 42 U.S.C. §§ 12132, 12182(a); 28 C.F.R. §§ 35.130(ii)-(iv), 35.160(a)

11. What is disability related discrimination? • It is almost always discrimination to treat someone in a different way solely due to his or her disability. • Example: It is discrimination for a court to refuse to allow a witness to testify solely because she is blind.

12. Relationship Between Discrimination and Effective Communication • Effectively communicating with individuals without disabilities but NOT individuals with disabilities is different treatment due to disability. • ADA regulations specifically require government entities (including courts) to provide effective communication to people with disabilities. 28 C.F.R. § 35.106(a)

13. What Kinds of Disabilities Impact Communication? • Many types of disabilities can impact communication • Disabilities which commonly impact communication include– hearing disabilities, vision disabilities, speaking disabilities, and cognitive disabilities • Other disabilities, including physical disabilities and mental illness, can sometimes impact communication

14. People First • Remember that people with disabilities are first and foremost PEOPLE! • The importance of language when we talk about disabilities and people with disabilities. • People First Language ensures the person is emphasized first, not his or her disability. • Helps us avoid using outdated or negative terms such as “handicapped” or “disabled.”

15. People First Language (Describes) Person with a disability People with disabilities Uses a wheelchair Has/with Examples: Child with autism, Friend with mental illness, etc… Language to Avoid (Defines) Disabled The handicapped Wheelchair bound Victim of/suffers from Examples: Child who suffers from autism, Friend who suffers from mental illness Understanding People First Language **EXCEPTIONS TO THE RULE**

16. Importance of Flexibility • ADA often requires courts to provide reasonable modifications(changes) or auxiliary aids/services to a person with a disability if necessary to ensure effective communication. • Generally, courts must provide these modifications or aids/services unless doing so will be a fundamental alteration in the program/service or constitute an undue burden (be a significant difficulty or expense when taking into account all court resources). 42 U.S.C § 12182(b)(2)(iii) 28 C.F.R. 35.160(a)

17. Auxiliary Aids and Services Services or devices that ensure effective communication for individuals with disabilities One size does NOT fit all • qualified interpreter • notetakers • screen readers • Braille items • open or closed captioning • video interpreting services • instant or text messaging • taped texts • exchange of written notes

18. Gesturing as Possible Communication • Be open to considering gestures as possible communication attempts. It can sometimes be frightening when people gesture dramatically if you don’t know why, but this may be a way to try to communicate with you. • If you do not know why someone is gesturing, you can ask. If he/she doesn’t respond, you can try writing very simple questions on a piece of paper. • Some people who are non-verbal may use gestures. This does not mean they cannot hear.

19. LOSE THE BIG WORDS • When communicating with anyone whether by speaking or writing, it is generally best to keep your language as basic as possible. People tend to read at the sixth grade level or below and people with disabilities which impact their ability to communicate often read at an even lower grade level. This is often the case for people who are deaf. Hello!

20. Reading Level • Many word processing programs have a feature that will allow you to check the reading level of your documents • For example, “readability statistics” are an optional feature in Microsoft Word’s spell check tool

21. Information Can Be Simple Example of standard language Court will resume at 1:30 p.m. All parties must return by no later than 1:30 p.m. Example of same ideas at sixth grade level Court will start back at 1:30 p.m. Parties must be back here by then.

22. Communication Needs of People with Other Disabilities • People who are blind or have a visual disability may need you to provide effective communication of written material by reading the material to them, recording it on tape, providing it in large print or Braille, providing it in an electronic format that can be read by a computer program called a screen reader. • Generally, the more complex the material, the more important it is that you provide a copy instead of just reading it aloud.

23. Communication Continued… • People with cognitive disabilities and traumatic brain injury may find it helpful if you break complex communications down into small parts or you may need to repeat the information more than once. • Some people find pictures may assist in communication. • Some people may need more time to complete forms, answer questions, etc. • Some people may need more breaks during court

24. Keep in Mind • A disability that effects communication is not a reflection of the person’s intelligence level. • Communication distance can be important when communicating with people with disabilities which affect their need for personal space. Ex. Person with autism. • Set up of a location or the presence of others may be important when communicating with people with disabilities which affect their need for reassurances of safety. Ex. Person with PTSD.

25. Introduction To Deaf Communication Issues • A person who is deaf may be carrying a card that provides instructions for requesting an interpreter from an area agency. However, not all people carry these cards. • It is generally not appropriate for family members or friends to interpret for the person who is deaf. • When speaking to a person through an interpreter, talk to the individual who is deaf and not the interpreter. • Understand that “nodding” by a person who is deaf may be viewed as a sign of politeness by a person who is deaf and not recognized as a “yes” or “positive” response to a question.

26. Communicating with Someone Who is Deaf • Different types of sign language • American Sign Language (ASL)- Primary sign language used in the United States. • Signed English - Another type of sign language often used. • Manual Sign Language– used by people who are deaf-blind. • Other sign languages vary based on culture or country of origin. • Some need oral interpreters-- When arranging for an interpreter, it is considerate to ask which type of sign language a person uses.

27. Understanding ASL • Form of manual communication • Has its own grammatical structure which is very different from English. • ASL interpretation does not convey each spoken word. • For people who were born deaf or who became deaf as children, sign language is their primary language. English is their second language.

28. What Is Effective Communication? The ADA makes clear that providing effective communication to people with disabilities means providing written or spoken communication that is as effective as communication to others without disabilities 28 C.F.R. § 35.106(a)

29. TN Law and Courts • T.C.A. § 24-1-211 • ADA requires effective communication– usually means a sign language interpreter for someone who is deaf. TN law specificallyrequires state courts to provide sign language interpreters to people who are deaf. (in court and after case has been filed, for meetings to prepare for court ) • So, TN courts do not have same discretion about providing sign language interpreters as entities that are only covered by ADA.

30. Providing Sign Language Interpreter Services • Court has to provide and pay for sign language interpreters (different from spoken language interpreters) • In Court– always– required by TN law • For Court ordered classes and programs– usually– if necessary for effective communication--required by ADA • For meetings to prepare– sometimes– required by TN law • What about at clerk’s office? Usually not required • Written notes or similar generally OK for short, simple communications such as filing documents, getting directions, etc.

31. Qualified Interpreter According to the ADA, Qualified interpreter means an interpreter who, via video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 35.104 TN law adds requirements on top of ADA requirements for qualified interpreters in court settings– preference for certified interpreters in court settings

32. More on Qualified Interpreter “qualified” does not always mean “certified” (however, TN law contains preference for certified interpreter in court) “qualified interpreter” must be able to convey sign into speech, and speech into sign Even if certified, a sign language interpreter is not qualified if individual with disability is unable to effectively understand that interpreter (for example, interpreter may not be familiar with vocabulary or may be hard to follow)

33. Asking court for Sign Language Interpreter, CART, etc. • TN ADA Judicial Branch Protocol + Form • Available at • http://www.tncourts.gov/administration/human-resources/ada-policy • Submit to Local ADA Coordinator or State ADA Coordinator (if local not available or not responsive)

34. Phone Calls with People who are Deaf or Hard of Hearing • Text Relay or Video Relay • Free Tennessee Relay Service (text relay, 1 (800) 848-0299, more information: http://www.state.tn.us/tra/relaycenter.htm) • Free Sorenson Video Relay Service (video relay, 1-866-FAST-VRS (1-866-327-8877), more information: http://www.sorensonvrs.com/index.php Note: Most deaf people no longer use TTY and similar. Instead use relay.

35. QUESTIONS????

36. Disability Law & Advocacy Center of Tennessee • Website: www.DLACTN.org • Phone: 1-800-342-1660 • TTY: 1-888-852-2852 • E-mail: GetHelp@DLACTN.org