Weekly Update - May 9, 2011

Exhaustion from moving and a weak Internet connection led to this mornings DPC Update being delayed.    

This issue will once again focus on a favorite topic: the inability of the Commonwealth of Massachusetts to understand the necessity of using American Sign Language Interpreters during emergencies.   Printed below are the April 1, 2011 Demand Letter regarding the lack of interpreters and the response from the Governor's legal counsel, Mark Reilly.

We are also printing correspondence from the U.S. Attorneys Office over the signature Jennifer Searfyn.  Ms. Serafyn sent the letter to 5 TV outlets.  The DPC reaction to the 5 TV stations follows along with a letter  we received today from WCVB-TV (Channel 5).  This follows our DOJ of May 2010 regarding lack of interpreters during the MWRA water crisis. 

My editorial will follow all of this to force you to at least browse what our public servants have to say as they "serve and protect".           

There is information on an important Public Hearing on PCA and Hearing Aid legislation on ay 17. 

FY12 Budget:   An End Note

There was another unexpected House budget victory late in the process.  The consolidated amendment for Health and Human Services included outside language that had been submitted last year both as legislation and an amendment. 

The amendment requires the Secretary of EOHHS to create standards and a mechanism for all EOHHS vendors to report on the number of people with disabilities they employ.

This is predicated on the fact that human service vendors often have a poor hiring people with disabilities.

(The legislation drafted for this session expands the requirement to ALL vendors of the Commonwealth through the executive Office of Administration and Finance).  

On the Calendar: Home Care Rally
 

Prime sponsor: Senator Gale D. Candaras (D), Rep Kay Khan 

Bill Text for HB52 (HD964) of 2011-2012 Session
An Act to provide access to hearing aids for children

Prime sponsor: Representative Sean Garballey (D)     

Section 23 of chapter 32A of the General Laws, as appearing in the 2000 Official Edition, is hereby amended by adding the following paragraph:-  

The commission shall provide to any minor 21 years of age or younger who is the child of an active or retired employee of the commonwealth and who is insured under the group insurance commission coverage for the full cost of one (1) hearing aid per hearing-impaired ear up to two thousand dollars ($2,000) for each hearing aid, as defined in section 196 of chapter 112, every 36 months upon a written statement from

April 1, 2011

Via Hand Delivery

Mark Reilly

Chief Legal Counsel

Office of the Governor

Commonwealth of Massachusetts

State House

Boston MA 02133

Re:     Violations of Title II of the Americans with Disabilities Act

Dear Mr. Reilly:

I represent the Disability Policy Consortium ("DPC") and its members, many of whom are Deaf and rely on American Sign Language to communicate.  Carol Hilbinger and Alan Gifford are two DPC Board members who are Deaf. The Massachusetts State Association of the Deaf (MSAD) is also being represented by the DPC in this letter.  Mr. Gifford is the President of MSAD.

DPC is an organization of disability rights activists who share a common goal of equal opportunity for all individuals with disabilities.  DPC has over 1,200 members from more than 270 Massachusetts cities and towns and an additional 1385 "friends".  Some DPC members are deaf or hard of hearing.

DPC is committed to fostering understanding and support through advocating and educating for each individual's quality of life, including the ability to live independently in whatever community one may choose.

DPC's mission is to promote inclusion, independence, and empowerment by guiding statewide development of policies that ensure that programs and services enable people with disabilities to participate in the political, economic, and social mainstream of the Commonwealth of Massachusetts.

The Massachusetts State Association of the Deaf is a statewide advocacy organization whose members are Deaf or Hard of Hearing.   MSAD was founded in 1975.  Its mission is to advocate for the rights of, and to serve the needs of the Deaf and hard-of-hearing individuals in Massachusetts.   It is to advocate and protect the rights of deaf and hard of hearing in order that they can fully participate in the civic, educational, social, cultural, and economic life of the Commonwealth and to further enhance the quality of life for deaf and hard of hearing people living in Massachusetts.

The Disability Policy Consortium has been proactively requesting accommodations in many aspects of emergency preparedness since 2006.  In May 2010 we filed a Title II ADA complaint with the Department of Justice regarding the lack of interpreters present during announcements of public officials during the MWRA water crisis that began on May 1, 2011.

We attempted to reach the Communications Office of the Governor numerous times during the fall of 2010.  Our attempts were not successful.  In fact, we have not had a direct conversation or correspondence from anyone in Massachusetts state government.  The case (#331216) is still open with the U.S. Attorney's Office.

The Americans with Disabilities Act ("ADA"), a federal statute, says that states "are required to make reasonable modifications in policies, practices, and procedures that deny equal access to individuals with disabilities". Specifically, state "governments must ensure effective communication with individuals with disabilities...Where necessary to ensure that communications with individuals with hearing, vision, or speech impairments are as effective as communications with others, the public entity must provide appropriate auxiliary aids...such services or devices as qualified interpreters...".[1]

The DPC does not believe that providing American Sign Language Interpreters would result in a fundamental alteration in the nature of a service, program, or activity or will create "undue financial and administrative burdens"[2] to the Commonwealth.

On March 27, 2011, the Massachusetts Commissioner of Public Health held a press conference at 2 PM (DST) to announce the result of testing Massachusetts drinking water for radiation from nuclear fallout from Japan.  Commissioner John Auerbach was accompanied by one individual at the platform.  He was not accompanied by a qualified American Sign Language Interpreter.

The above press conference directly violates 28 CFR §130.160 (d) (1), which "requires the public entity to take such steps as may be necessary to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others".[3]

It is the goal of the DPC, MSAD, Ms. Hilbinger, Mr. Gifford, DPC and MSAD members to correct ADA violations and bring entities into compliance with the ADA and all federal disability laws and regulations.  Therefore, we propose that before the parties begin what is sure to be expensive litigation for the Commonwealth, we seek to amicably resolve this matter.  However, if you fail to reach a settlement agreement with the Disability Policy Consortium, Massachusetts State Association of the Deaf, Ms. Hilbinger and Mr. Gifford within 30 days from the date of this letter, the DPC. MSAD, Ms. Hilbinger and Mr. Gifford will pursue litigation against you in federal court to rectify your violations. 

To begin the process, we request that you respond to this letter within 30 days with an outline of the plan you intend to implement within an 30 additional days (May 31, 2011) that will effectively insure that communication access will be available at all emergency announcements, press events, or public addresses to the general public dealing with health and safety.   We will be pleased to meet with you to discuss reaching satisfaction on these accommodations to avoid litigation.

You should note that attorneys' fees and costs as well as injunctive relief are available to a prevailing plaintiff in an ADA action and not settling this dispute at this initial stage will result in far more expense than would be the case if we can resolve these issues amicably.

I look forward to hearing from you.

Very truly yours,

William F. Allan

Executive Director

VIA U.S. MAIL

Lisa Hall, Vice President & News Director

FOX25

25 Fox Drive

Dedham, MA 02027-2563

Re:   American Sign Language interpreters

Dear Ms. Hall:

This office has been investigating a claim raised by the Disability Policy Consortium regarding the absence of American Sign Language (ASL) interpreters during press conferences given by the Governor and other state officials, particularly during emergencies such as the MWRA water crisis and this winter's numerous snow storms.

Based on our discussions with the Disability Policy Consortium and the Governor's Office, it is our understanding that an ASL interpreter typically stands next to the Governor or other speaker at press conferences, but that news stations do not necessarily include the interpreter within the frame of the picture that is broadcast on TV or over the Internet. As a result, the deaf and hearing impaired community are unable to receive the important information that is being conveyed during these state press conferences because the ASL interpreter does not appear in the picture. While we understand that most news stations include closed captioning at the bottom of the screen, this does not address the issue because many deaf or hard of hearing individuals are fluent in ASL only, not in English. In other words, many deaf or hard of hearing individuals do not read English, so the closed captioning scroll does not provide the necessary information.

As I am sure you can appreciate, including an ASL interpreter in the television and Internet broadcast of press conferences not only allows your station to comply with the Americans with Disabilities Act (ADA), but also secures the safety and well being of all Massachusetts residents, and ensures that all residents receive accurate, up-to-date information from the Governor and other state officials. Given the potentially critical nature of the information, and the ease of including the already-provided ASL interpreter in the visible frame of the picture, we would suggest that making the ASL interpreter visible in all screen shots of the press conferences that are broadcast is the most effective way for WBZ to comply with its ADA obligations.

                                                                                                            April 27, 2011

Lisa Hall, News Director

FOX25

25 Fox Drive

Dedham, MA  02027

Dear Ms. Hall:

I am writing with a sense of embarrassment and to apologize for any misunderstanding that may have come from the April 21, 2011 letter from the U.S. Attorney.

The letter from Ms. Jennifer Serafyn implied in the second paragraph that the Disability Policy Consortium agreed with the Governor's office that an interpreter "typically stands next to the Governor or other speaker at press conferences" and that the issue is with the TV stations not including the interpreter in the frame.

We have consistently tried to make it clear to the U.S. Attorney that the Commonwealth routinely does not include interpreters.  In fact, since the May 1, 2010 MWRA water crisis, through the July and August 2010 EEE threats, to the December snowstorms and finally, the March 27, 2011 press event on the radiation levels in the water supply, the Commonwealth has only had interpreters available twice.  The interpreter was next to the Governor only once.

To drive the point home that the Commonwealth was not following the law and to show our dissatisfaction with the U.S. DOJ, we sent the Governor a 30 day demand letter on April 1 alleging violation of Title II of the Americans with Disabilities Act regarding lack of communication access for Deaf citizens at the March 27 press conference.

Representatives of the DPC met or talked with most media outlets during November and December 2010.  We came away with assurance that you understood the need to include interpreters in the frame to communicate vital information to a segment of the population that can not read English captions.  We also understand from our knowledge of the field of broadcast communications that videographers and technical staff have been trained to do the one-shot, close ups.  It will take time to sensitive cameramen and editors to this new way of presenting news.

The Disability Policy Consortium wants to continue to work together with your station as much as we'd like to be able to work with the Commonwealth.  To date, the TV stations have been much more willing to talk and listen.  Let us keep working with each other.

Please call me if you'd like to put this on the public record.

Sincerely yours,

William F. Allan

Executive Director

Cc: Gregg Kelley, Vice-President & General Manager, FOX25

       Ronald Marlow, Assistant Secretary, EOAF

       Gregory I. Massing, General Counsel, EOPS

       Jennifer Serafyn, U.S. Attorney's Office

       Carmen M. Ortiz, U.S. Attorney

       Thomas Perez, Attorney General

WCVBTV

BOSTON