In a previous blog entry entitled help-wanted ASL practitioners, I discussed the case of Belton v. Georgia. On October 3, 2014 that case settled with a consent decree. I thought it would be helpful to cover some of the salient points of the consent decree. They are as follows:
1. A deaf class member is a deaf individual eligible for or receiving state-funded services for mental illness, including in state hospitals or a deaf individual awarded comprehensive support waiver program funding.
2. A deaf mental illness class member is a deaf individual eligible for or receiving state-funded services for mental illness, including the state hospitals, who needs non-crisis related therapy or counseling services provided by ASL fluent therapist or counselors or through the use of interpreters.
3. A deaf individual is a person whose hearing is totally impaired or hearing is so seriously impaired as to prohibit the individual from understanding oral communications spoken in a normal conversational tone. This can be a self identified classification regardless of the severity of the hearing loss or mode of manual communication preferred.
What is interesting about the definition of deaf individual that it doesn’t talk about mitigating measures, such as hearing aids or cochlear implants. As such, depending upon how the Georgia Department of Behavioral Health and Developmental Disabilities wants to play it, it is possible you may see arguments over whether a person who otherwise meets the requirements for this consent decree but uses hearing aids and/or cochlear implants, would be qualified to be served under this consent decree. The counter argument would be that the Americans with Disabilities Act as amended prohibits considering mitigating measures in the determination of whether a person has a disability. However, the counter argument to that counter argument is that the consent decree is not dealing with whether a person has a disability, rather they are dealing with whether a person is qualified to receive services under the specific terms of a consent decree. The counter argument to that is that the effective communication regulations of the Department of Justice require that individual preferences be considered. The issue of being culturally deaf v. cochlear implants is an issue that has been raging in the Deaf community for some time with cochlear implants winning out for the most part. Accordingly, the possibility of the use of mitigating measures being a problem as the consent decree is phrased is a real one and not just an academic discussion.
Terms of the consent decree:
1. The Georgia Department of Behavioral Health and Developmental Disabilities must maintain a deaf services office with responsibility for statewide monitoring and management of the provision of services to deaf individuals.
2. The Georgia Department of Behavioral Health and Developmental Disabilities must employ a full-time deaf services director reporting to a director or executive level position with responsibility for disability program services. The director must be ASL fluent, have a working knowledge of deaf culture, and have at least four years of administrative experience in human services, healthcare administration, or related field, or a PhD in any of these fields in lieu of such experience.
Here is what I find interesting about this requirement. I get that there is Deaf and deaf and no I am not being repetitive. I consider myself deaf proud but not Deaf. While I am deaf, I am not Deaf. Deaf refers to someone who is culturally deaf. That means ASL, oftentimes state schools for the deaf, in addition to being deaf in the medical sense (genetically or otherwise). Here is my concern. What if you have a person who otherwise meets the criteria to be a deaf services director even though he or she is not ASL fluent and joint issues prevent that person from becoming ASL fluent. Wouldn’t this criteria be then screening out a person with a disability in violation of the ADA? The answer to that question would then turn on whether ASL fluency is a bona fide occupational qualification of this position. That is, is ASL fluency so critical to the position that you could ignore the possibility that a person could perform the essential functions of this job with or without reasonable accommodations if that person was not ASL fluent?
3. The Georgia Department of behavioral health and developmental disabilities must also employ a full-time community service coordinator to work under the direct supervision of the Director. That person has the responsibility for statewide coordination of all services provided to deaf class members by the department directly or through its provider network. The qualifications for that position are a Masters degree in human services field and at least two years of experience in deaf services delivery. That person also has to be ASL fluent and have a working knowledge of deaf culture and, preferably, system theory. The person should ideally also hold a clinical license and be trained to assist with clinical supervision.
There is also the issue of ASL fluency here and whether it screens out a person with a disability. Again, whether such a claim would fly would depend upon whether ASL fluency is a bona fide occupational qualification for this position. To my mind, that argument is stronger for this position than it was be for the director’s position.
4. The Georgia Department of Behavioral Health and Developmental Disabilities also must hire a full-time interpreter coordinator to coordinate interpreter services for deaf individuals covered by the consent decree.
5. Deaf services will provide monitoring of the provision of services to deaf individuals covered by the consent decree and how they do that is laid out in the decree.
6. Communication assessments performed by qualified communication assessors (qualifications are set forth in the consent decree), must be completed for deaf class members.
7. Within one year of the date of the consent decree, providers of crisis services must have developed plans for the provision of crisis services to deaf class members. Those plans must comply with the Georgia Department of Behavioral Health and Developmental Disabilities policy, as approved by a monitor. Further, the department must require providers to comply with those plans and policies.
8. With respect to state hospital, all deaf class members are to receive services, such as counseling and therapy among other things, consistent with the communication assessment recommendations as set forth in their individual service plan.
9. The support coordinator is responsible for monitoring and advocating for the class member and department staff is responsible for monitoring providers for compliance with implementation of the individual service plan. Further, within six months of the effective date of the order, providers providing services to class members whose individual service plan requires sign language communication must have staff sufficient to meet the requirements of the individual service plan.
10. Within 30 days from the date of the consent decree the Georgia Department of Behavioral Health and Developmental Disabilities, through its provider network, must begin providing services to the class members using ASL fluent therapist for counselors, case managers, or interpreters as demanded by the class member’s individual service plan.
11. Non-crisis related outpatient therapy or counseling services to class members must be provided by ASL fluent therapist or counselors. Telemedicine is okay if it is in accordance with the individual’s preference.
12. With respect to non-crisis related outpatient mental health therapy or counseling services provided to class members, 25% of those services must be performed by ASL fluent therapist for counselors. That figure rises to 45% in the third year and 60% in the fourth year.
13. Case management services for class members must be provided by ASL fluent case managers.
14. The Georgia Department of Behavioral Health and Developmental Disabilities is responsible for contracting with designated providers to pay the cost of employing a contracting with ASL fluent therapist, counselors, and case managers.
15. Within three years the department and/or providers have to have as many qualified interpreters (the consent decree sets forth what is meant by qualified interpreter), on the contract or employed to provide the sign language interpreting services as necessary to fill the requests made to disability services for interpreting for counseling or therapy services. Within three years the number of qualified interpreters has to be at least 12 in number.
16. The consent decree is to be incorporated into the service standards of the respective provided manuals of the department within 12 months of the effective date of the order or sooner if practicable, whichever is shorter.
17. A monitor is responsible for overseeing implementation and compliance of the consent decree and the monitor is given the authority to seek judicial intervention, direction, and modification of the order as necessary.
18. Reasonable attorneys fees to be awarded to plaintiff’s counsel (Parks, Chesin of Atlanta)