Effective Effective Communication with Communication with

Individuals with Individuals with DisabilitiesDisabilities

Tennessee Clerks of Court Tennessee Clerks of Court ConferenceConference

June 15June 15, 2011, 2011

Shelia A. Odusote, ParalegalShelia A. Odusote, ParalegalDisability Law & Advocacy Disability Law & Advocacy

Center Center of Tennessee (DLAC)of Tennessee (DLAC)

www.DLACTN.orgwww.DLACTN.org

Disclaimer Disclaimer I am not an attorney.I am not an attorney. This presentation is intended to provide you with This presentation is intended to provide you with

some general information about effective some general information about effective communication with people with disabilities and communication with people with disabilities and related legal issues. Nothing in this presentation related legal issues. Nothing in this presentation is legal advice about a specific situation. is legal advice about a specific situation.

For legal advice regarding a specific situation, For legal advice regarding a specific situation, contact your attorney. contact your attorney.

Disability Law & Disability Law & Advocacy Center of Advocacy Center of Tennessee (DLAC)Tennessee (DLAC) Tennessee’s Protection and Advocacy Tennessee’s Protection and Advocacy

agencyagency

Federally funded and mandatedFederally funded and mandated

Assists individuals with disabilities Assists individuals with disabilities

Handles Handles selectedselected issues with Vocational issues with Vocational Rehabilitation, Education, Abuse and Rehabilitation, Education, Abuse and Neglect, Accessibility, Disability Neglect, Accessibility, Disability Discrimination, Voting, TBI, and Assistive Discrimination, Voting, TBI, and Assistive TechnologyTechnology

DLAC, continuedDLAC, continued

Provides a range of legally based servicesProvides a range of legally based services Must have a documented disability to Must have a documented disability to

receive case servicesreceive case services Most services are free. Most services are free. Co-counsel on Lane v TN– resulted in Co-counsel on Lane v TN– resulted in

accessible TN court program including ADA accessible TN court program including ADA policy and reasonable modification formpolicy and reasonable modification form

One of our current priority areas is effective One of our current priority areas is effective communication with people with disabilitiescommunication with people with disabilities

Involved in Access to Justice effortsInvolved in Access to Justice efforts

Legal Requirements Legal Requirements Related Related

To Communication with To Communication with People with Disabilities People with Disabilities

The Americans with Disabilities Act (ADA) The Americans with Disabilities Act (ADA) is the primary law which prohibits is the primary law which prohibits discrimination against people with discrimination against people with disabilities.disabilities.

The ADA requires effective The ADA requires effective communication with people with communication with people with disabilities.disabilities.

The ADA applies to private businesses and The ADA applies to private businesses and state/local government entities.state/local government entities.

The ADA applies to court programs and The ADA applies to court programs and servicesservices

ADA Definition of ADA Definition of DisabilityDisability

a mental or physical a mental or physical impairment which impairment which substantially limits one or substantially limits one or more major life activities, more major life activities, oror

a history of such an impairment, ora history of such an impairment, or being regarded as having such an being regarded as having such an

impairmentimpairment

42 U.S.C. § 12102(2) 42 U.S.C. § 12102(2)

Definition of Disability Definition of Disability Part IPart I

““Physical or Physical or mental mental impairment….”impairment….” ParalysisParalysis BlindnessBlindness Mental IllnessMental Illness Addiction*Addiction* HIV/AIDSHIV/AIDS HypertensionHypertension CancerCancer Etc.Etc.

“…“…which which substantially limits substantially limits one or more major one or more major life activitieslife activities….”….” Self careSelf care Performing manual Performing manual

taskstasks WalkingWalking SeeingSeeing HearingHearing SpeakingSpeaking BreathingBreathing LearningLearning WorkingWorking

Definition of Disability Definition of Disability Part IIPart II

“…“…a record of a record of having such an having such an impairment,”impairment,” Cancer in Cancer in

remissionremission Heart disease Heart disease

under controlunder control AddictionAddiction Psychiatric Psychiatric

disabilitydisability Others….Others….

“…“…or being or being regarded as regarded as having such an having such an impairment…”impairment…” Facial Facial

disfigurementdisfigurement EccentricityEccentricity Age deemed a Age deemed a

disabilitydisability Others…Others…

State and Local State and Local Government EntitiesGovernment Entities

The ADA applies to state and local The ADA applies to state and local governmentsgovernments

The ADA applies to court programs and The ADA applies to court programs and servicesservices Hearings and TrialsHearings and Trials Clerk’s officeClerk’s office Court information (ex., summons, jury notice)Court information (ex., summons, jury notice) Any other court program or serviceAny other court program or service

The ADA applies to court offices and staffThe ADA applies to court offices and staff Generally, ADA requires courts to Generally, ADA requires courts to

provide effective communication. TN law provide effective communication. TN law contains additional requirements for contains additional requirements for courts. courts.

ADA Prohibits ADA Prohibits DiscriminationDiscrimination

The ADA prohibits courts from The ADA prohibits courts from discriminating in the operation of discriminating in the operation of programs or services against a programs or services against a person due to disability. person due to disability.

42 U.S.C. §§ 12132, 12182(a)42 U.S.C. §§ 12132, 12182(a); ;

28 C.F.R. §§ 35.130(ii)-(iv), 35.160(a) 28 C.F.R. §§ 35.130(ii)-(iv), 35.160(a)

What is disability related What is disability related discrimination?discrimination?

It is almost always discrimination to It is almost always discrimination to treat someone in a different way treat someone in a different way solely due to his or her disability. solely due to his or her disability. Example:Example: It is discrimination for a It is discrimination for a

court to refuse to allow a witness to court to refuse to allow a witness to testify solely testify solely becausebecause she is blind. she is blind.

Relationship Between Relationship Between Discrimination and Discrimination and

Effective CommunicationEffective Communication Effectively communicating with Effectively communicating with

individuals without disabilities but individuals without disabilities but NOT individuals with disabilities is NOT individuals with disabilities is different treatment due to disability.different treatment due to disability.

ADA regulations specifically require ADA regulations specifically require government entities (including courts) government entities (including courts) to provide effective communication to to provide effective communication to people with disabilities. people with disabilities.

28 C.F.R. § 35.106(a)28 C.F.R. § 35.106(a)

What Kinds of Disabilities What Kinds of Disabilities Impact Communication?Impact Communication?

Many types of disabilities can impact Many types of disabilities can impact communicationcommunication

Disabilities which commonly impact Disabilities which commonly impact communication include– hearing communication include– hearing disabilities, vision disabilities, speaking disabilities, vision disabilities, speaking disabilities, and cognitive disabilitiesdisabilities, and cognitive disabilities

Other disabilities, including physical Other disabilities, including physical disabilities and mental illness, can disabilities and mental illness, can sometimes impact communicationsometimes impact communication

People FirstPeople First

Remember that people with disabilities are Remember that people with disabilities are first and foremost PEOPLE! first and foremost PEOPLE!

The importance of language when we talk The importance of language when we talk about disabilities and people with about disabilities and people with disabilities. disabilities.

People First Language ensures the person People First Language ensures the person is emphasized first, not his or her disability.is emphasized first, not his or her disability.

Helps us avoid using outdated or negative Helps us avoid using outdated or negative terms such as “handicapped” or “disabled.”terms such as “handicapped” or “disabled.”

Understanding People First Understanding People First LanguageLanguage

People First People First LanguageLanguage (Describes)(Describes) Person with a Person with a

disabilitydisability People with People with

disabilitiesdisabilities Uses a wheelchairUses a wheelchair Has/withHas/with

Examples: Child with Examples: Child with autism, Friend with autism, Friend with mental illness, etc… mental illness, etc…

Language to Language to AvoidAvoid (Defines) (Defines) DisabledDisabled The handicappedThe handicapped Wheelchair boundWheelchair bound Victim of/suffers Victim of/suffers

fromfrom Examples: Child Examples: Child

who suffers from who suffers from autism, Friend who autism, Friend who suffers from mental suffers from mental illnessillness**EXCEPTIONS TO THE RULE**

Importance of FlexibilityImportance of Flexibility

ADA often requires courts to provide reasonable ADA often requires courts to provide reasonable modifications(changes) or auxiliary aids/services modifications(changes) or auxiliary aids/services to a person with a disability if necessary to ensure to a person with a disability if necessary to ensure effective communication. effective communication.

Generally, courts must provide these modifications Generally, courts must provide these modifications or aids/services unless doing so will be a or aids/services unless doing so will be a fundamental alteration in the program/service or fundamental alteration in the program/service or constitute an undue burden (be a significant constitute an undue burden (be a significant difficulty or expense when taking into account all difficulty or expense when taking into account all court resources). court resources).

42 U.S.C § 12182(b)(2)(iii)42 U.S.C § 12182(b)(2)(iii) 28 C.F.R. 35.160(a) 28 C.F.R. 35.160(a)

Auxiliary Aids and Auxiliary Aids and ServicesServices

Services or Services or devices that devices that ensure ensure

effective effective communication communication for individuals for individuals with disabilitieswith disabilities

One size does One size does NOT fit allNOT fit all

qualified interpreterqualified interpreter notetakersnotetakers screen readersscreen readers Braille itemsBraille items open or closed captioningopen or closed captioning video interpreting video interpreting

servicesservices instant or text messaginginstant or text messaging taped textstaped texts exchange of written notesexchange of written notes

Gesturing as Possible Gesturing as Possible CommunicationCommunication

Be open to considering gestures as possible Be open to considering gestures as possible communication attempts. It can sometimes be communication attempts. It can sometimes be frightening when people gesture dramatically frightening when people gesture dramatically if you don’t know why, but this may be a way if you don’t know why, but this may be a way to try to communicate with you.to try to communicate with you.

If you do not know why someone is gesturing, If you do not know why someone is gesturing, you can ask. If he/she doesn’t respond, you you can ask. If he/she doesn’t respond, you can try writing very simple questions on a can try writing very simple questions on a piece of paper.piece of paper.

Some people who are non-verbal may use Some people who are non-verbal may use gestures. This does not mean they cannot gestures. This does not mean they cannot hear. hear.

LOSE THE BIG WORDSLOSE THE BIG WORDS

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

Hello!

Reading LevelReading Level

Many word processing programs Many word processing programs have a feature that will allow you to have a feature that will allow you to check the reading level of your check the reading level of your documentsdocuments

For example, “readability statistics” For example, “readability statistics” are an optional feature in Microsoft are an optional feature in Microsoft Word’s spell check tool Word’s spell check tool

Information Can Be Information Can Be SimpleSimple

Example of standard languageExample of standard languageCourt will resume at 1:30 p.m.Court will resume at 1:30 p.m.All parties must return by no later than 1:30 p.m.All parties must return by no later than 1:30 p.m.

Example of same ideas at sixth grade levelExample of same ideas at sixth grade levelCourt will start back at 1:30 p.m.Court will start back at 1:30 p.m.Parties must be back here by then.Parties must be back here by then.

Communication Needs of Communication Needs of People with Other People with Other

DisabilitiesDisabilities People who are blind or have a visual People who are blind or have a visual

disability may need you to provide disability may need you to provide effective communication of written effective communication of written material by reading the material to them, material by reading the material to them, recording it on tape, providing it in large recording it on tape, providing it in large print or Braille, providing it in an print or Braille, providing it in an electronic format that can be read by a electronic format that can be read by a computer program called a screen reader.computer program called a screen reader.

Generally, the more complex the material, Generally, the more complex the material, the more important it is that you provide a the more important it is that you provide a copy instead of just reading it aloud.copy instead of just reading it aloud.

Communication Communication Continued…Continued…

People with cognitive disabilities and People with cognitive disabilities and traumatic brain injury may find it helpful if traumatic brain injury may find it helpful if you break complex communications down you break complex communications down into small parts or you may need to repeat into small parts or you may need to repeat the information more than once. the information more than once.

Some people find pictures may assist in Some people find pictures may assist in communication.communication.

Some people may need more time to Some people may need more time to complete forms, answer questions, etc. complete forms, answer questions, etc.

Some people may need more breaks during Some people may need more breaks during courtcourt

Keep in MindKeep in Mind

A disability that effects communication is not A disability that effects communication is not a reflection of the person’s intelligence level.a reflection of the person’s intelligence level.

Communication distance can be important Communication distance can be important when communicating with people with when communicating with people with disabilities which affect their need for disabilities which affect their need for personal space. Ex. Person with autism.personal space. Ex. Person with autism.

Set up of a location or the presence of others Set up of a location or the presence of others may be important when communicating with may be important when communicating with people with disabilities which affect their people with disabilities which affect their need for reassurances of safety. Ex. Person need for reassurances of safety. Ex. Person with PTSD.with PTSD.

Introduction To Deaf Introduction To Deaf Communication IssuesCommunication Issues

A person who is deaf may be carrying a card that A person who is deaf may be carrying a card that provides instructions for requesting an provides instructions for requesting an interpreter from an area agency. However, not all interpreter from an area agency. However, not all people carry these cards.people carry these cards.

It is generally not appropriate for family members It is generally not appropriate for family members or friends to interpret for the person who is deaf. or friends to interpret for the person who is deaf.

When speaking to a person through an When speaking to a person through an interpreter, talk to the individual who is deaf and interpreter, talk to the individual who is deaf and not the interpreter.not the interpreter.

Understand that “nodding” by a person who is Understand that “nodding” by a person who is deaf may be viewed as a sign of politeness by a deaf may be viewed as a sign of politeness by a person who is deaf and not recognized as a “yes” person who is deaf and not recognized as a “yes” or “positive” response to a question.or “positive” response to a question.

Communicating with Communicating with Someone Someone

Who is DeafWho is Deaf Different types of sign Different types of sign languagelanguage American Sign Language American Sign Language

(ASL)-(ASL)- Primary sign language Primary sign language used in the United States.used in the United States.

Signed English -Signed English - Another type Another type of sign language often used.of sign language often used.

Manual Sign Language– used by Manual Sign Language– used by people who are deaf-blind.people who are deaf-blind.

Other sign languages vary based Other sign languages vary based on culture or country of origin. on culture or country of origin.

Some need oral interpreters--Some need oral interpreters--When arranging for an When arranging for an

interpreter, it is considerate to interpreter, it is considerate to ask which type of sign language ask which type of sign language a person uses.a person uses.

Understanding ASL Understanding ASL

Form of manual communicationForm of manual communication Has its own grammatical structure Has its own grammatical structure

which is very different from English.which is very different from English. ASL interpretation does not convey ASL interpretation does not convey

each spoken word.each spoken word. For people who were born deaf or who For people who were born deaf or who

became deaf as children, sign language became deaf as children, sign language is their primary language. English is is their primary language. English is their second language.their second language.

What Is Effective What Is Effective Communication?Communication?

The ADA makes clear that providing The ADA makes clear that providing effective communication to people effective communication to people with disabilities means providing with disabilities means providing written or spoken communication written or spoken communication that is as effective as communication that is as effective as communication to others without disabilitiesto others without disabilities

28 C.F.R. § 35.106(a)28 C.F.R. § 35.106(a)

TN Law and CourtsTN Law and Courts T.C.A. T.C.A. §§ 24-1-211 24-1-211 ADA requires effective communication– usually ADA requires effective communication– usually

means a sign language interpreter for someone means a sign language interpreter for someone who is deaf. TN law who is deaf. TN law specificallyspecifically requiresrequires state state courts to provide sign language interpreters to courts to provide sign language interpreters to people who are deaf. (in court and after case has people who are deaf. (in court and after case has been filed, for meetings to prepare for court )been filed, for meetings to prepare for court )

So, TN courts do not have same discretion So, TN courts do not have same discretion about providing sign language interpreters as about providing sign language interpreters as entities that are only covered by ADA.entities that are only covered by ADA.

Providing Sign Language Providing Sign Language Interpreter ServicesInterpreter Services

Court has to provide and pay for sign Court has to provide and pay for sign language interpreters (different from spoken language interpreters (different from spoken language interpreters)language interpreters)

In Court– always– required by TN lawIn Court– always– required by TN law For Court ordered classes and programs– For Court ordered classes and programs–

usually– if necessary for effective usually– if necessary for effective communication--required by ADAcommunication--required by ADA

For meetings to prepare– sometimes– For meetings to prepare– sometimes– required by TN lawrequired by TN law

What about at clerk’s office? Usually not What about at clerk’s office? Usually not requiredrequired Written notes or similar generally OK for short, Written notes or similar generally OK for short,

simple communications such as filing documents, simple communications such as filing documents, getting directions, etc.getting directions, etc.

Qualified InterpreterQualified Interpreter

According to the ADA, Qualified interpreter means an According to the ADA, Qualified interpreter means an interpreter who, interpreter who, via video remote interpreting (VRI) via video remote interpreting (VRI) service or an on-site appearanceservice or an on-site appearance, is able to interpret , is able to interpret effectively, accurately, and impartially, both receptively effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized and expressively, using any necessary specialized vocabulary. vocabulary. Qualified interpreters include, for Qualified interpreters include, for example, sign language interpreters, oral example, sign language interpreters, oral transliterators, and cued-language transliterators.transliterators, and cued-language transliterators.

28 C.F.R. 28 C.F.R. § 35.104§ 35.104

TN law adds requirements on top of ADA requirements for TN law adds requirements on top of ADA requirements for qualified interpreters in court settings– preference for qualified interpreters in court settings– preference for certified interpreters in court settingscertified interpreters in court settings

More on Qualified More on Qualified InterpreterInterpreter

““qualified” does not always mean “certified” qualified” does not always mean “certified” (however, TN law contains preference for (however, TN law contains preference for certified interpreter in court)certified interpreter in court)

““qualified interpreter” must be able to convey qualified interpreter” must be able to convey sign into speech, and speech into signsign into speech, and speech into sign

Even if certified, a sign language interpreter Even if certified, a sign language interpreter is not qualified if individual with disability is is not qualified if individual with disability is unable to effectively understand that unable to effectively understand that interpreter interpreter (for example, interpreter may not be familiar (for example, interpreter may not be familiar with vocabulary or may be hard to follow)with vocabulary or may be hard to follow)

Asking court for Sign Asking court for Sign Language Interpreter, Language Interpreter,

CART, etc.CART, etc. TN ADA Judicial Branch Protocol + TN ADA Judicial Branch Protocol +

FormForm Available at Available at http://www.tncourts.gov/administrati

on/human-resources/ada-policy Submit to Local ADA Coordinator or Submit to Local ADA Coordinator or

State ADA Coordinator (if local not State ADA Coordinator (if local not available or not responsive)available or not responsive)

Phone Calls with People Phone Calls with People who are Deaf or Hard of who are Deaf or Hard of

HearingHearing Text Relay or Video RelayText Relay or Video Relay Free Tennessee Relay Service (text relay, Free Tennessee Relay Service (text relay,

1 (800) 848-0299, more information: 1 (800) 848-0299, more information: http://www.state.tn.us/tra/relaycenter.htm))

Free Sorenson Video Relay Service Free Sorenson Video Relay Service (video relay, 1-866-FAST-VRS (1-866-(video relay, 1-866-FAST-VRS (1-866-327-8877), more information: 327-8877), more information: http://www.sorensonvrs.com/index.phphttp://www.sorensonvrs.com/index.php

Note: Most deaf people no longer use TTY Note: Most deaf people no longer use TTY and similar. Instead use relay. and similar. Instead use relay.

QUESTIONSQUESTIONS????????

Disability Law & Disability Law & Advocacy Center of Advocacy Center of

TennesseeTennessee Website: Website: www.DLACTN.org Phone:Phone: 1-800-342-1660 1-800-342-1660 TTY:TTY: 1-888-852-28521-888-852-2852 E-mail: E-mail: GetHelp@DLACTN.org