Definitions

Wash-CAP’s Interest

Wash-CAP is a Washington non-profit membership corporation which has as its purpose enriching the lives of people with significant hearing loss. To carry out that objective, Wash-CAP seeks to implement the benefits and protections of Titles II and III of the Americans With Disabilities Act and the even broader and more powerful benefits and protections of the Washington State Law Against Discrimination. Wash-CAP’s preferred modes of action are communication, education, persuasion and cooperation, but where those methods prove futile, Wash-CAP does not hesitate to bring court actions.

While Wash-CAP is interested in improving access for everyone with a hearing loss, its particular focus is on the needs of the drastically under-served population we call the Significantly Hard of Hearing (S.H.O.H.), sometimes referred to as the oral deaf. The defining characteristics of the S.H.O.H. are 1) a hearing loss of sufficient magnitude that simple amplification is not enough to make aurally delivered material comprehensible, and 2) the use of speech rather than sign language as the primary if not exclusive means of communication.

Several Wash-CAP Board of Directors, as well as the undersigned Advocacy Director and Counsel, are S.H.O.H. As such, we not only have a direct and personal interest in increasing the accessibility of Title II and Title III facilities, but are uniquely positioned to help devise truly effective accommodations.

Significantly Hard of Hearing (SHOH)

While Wash-CAP is interested in improving access for everyone with a hearing loss, its particular focus is on the needs of the drastically under-served population we call the Significantly Hard of Hearing (S.H.O.H.), sometimes referred to as the oral deaf. The defining characteristics of the S.H.O.H. are 1) a hearing loss of sufficient magnitude that simple amplification is not enough to make aurally delivered material comprehensible, and 2) the use of speech rather than sign language as the primary if not exclusive means of communication.

Oral Deaf

While Wash-CAP is interested in improving access for everyone with a hearing loss, its particular focus is on the needs of the drastically under-served population we call the Significantly Hard of Hearing (S.H.O.H.), sometimes referred to as the oral deaf. The defining characteristics of the S.H.O.H. are 1) a hearing loss of sufficient magnitude that simple amplification is not enough to make aurally delivered material comprehensible, and 2) the use of speech rather than sign language as the primary if not exclusive means of communication.

Serving People Who Are Significantly Hard of Hearing (SHOH)

Our observation is that in general, the S.H.O.H. population is less well served with auxiliary aids and services (A.A.S.) than either those with mild hearing loss or those who use sign language, a group that frequently self-identifies as culturally Deaf. A substantial and increasing number of Title II and Title III facilities provide Assistive Listening Systems (A.L.S.) that serve people with mild or moderate losses by amplifying aurally delivered material. At the other end of the spectrum, we see a heartening number of facilities that provide sign-language interpretation as an A.A.S. Yet those A.A.S. leave out a significant segment of the population.

Severely Hard of Hearing (S.H.O.H.) Numbers and Percentages

We have been unable to locate any definitive data on the proportion of the population that is S.H.O.H., but there is date from which inferences can be drawn. The most recent information we have located anywhere in the country comes, by coincidence, from the State of Washington, and specifically from a 2006 study entitled “Disability in Washington State,” conducted by the University of Washington under the auspices of the Washington State Health Department.

According to that study, 12.8 percent of Washington’s adult population reports having “a little trouble” hearing in an unaided situation, 2.6 percent reports having “a lot of trouble” hearing, and three-tenths of one percent consider themselves “deaf.” Moreover, 1.8 percent of the adult population acknowledges that hearing loss has curtailed their activities.

We believe that almost by definition, that 1.8 percent of the population comprises the S.H.O.H. and deaf populations. We say this because when activities are curtailed, that suggests that people are not doing things they would otherwise enjoy doing because of hearing loss. And the fact that they are not doing those things further implies that the A.A.S. actually provided aren’t sufficient to make undertaking those activities sufficiently enjoyable to be worthwhile. If we then make the conservative assumption that all the self-declared deaf population curtail their activities, and are therefore among the 1.8 percent of all adults who do so, we can then estimate from the data that 1.5 percent of the adult population is S.H.O.H., and that three-tenths of one percent of the population is deaf.

Using the 2005 census estimates that correspond with the time of the Washington state study, it would then appear that over 70,000 Washington adults would fall into the category of S.H.O.H., while another 14,000 would be considered deaf. Extrapolating the Washington data to the nation as a whole would yield an estimate of some 3 million S.H.O.H. individuals and 600,000 deaf individuals.

Best Method to Help People Who Are Significantly Hard of Hearing (S.H.O.H.)

The most generally useful accommodation for the S.H.O.H. is the conversion of aurally delivered material into written form, then displaying that text through means such as open or closed captioning and real-time transcription – all of which are specifically enumerated as appropriate A.A.S. Yet with the conspicuous exception of television, we find that captioning is far less generally available as an A.A.S. than are A.L.S., and we further find that in many situations – notably live theater, lectures, and Title II facilities – captioning is less available than sign-language interpretation. While we applaud facilities that provide A.L.S. and sign-language interpretations, neither of those A.A.S. serves the S.H.O.H.

How and Why S.H.O.H. are Underserved

Our experience suggests that a major reason the S.H.O.H. population is under-served is that very frequently, they are not recognized as a discrete population with distinct needs. Consequently, facilities that provide A.L.S. and sign-language interpretations believe sincerely but erroneously that they are providing full-spectrum A.A.S. coverage for individuals with hearing loss.

Unfortunately, certain language in the N.P.R.M. reinforces those misconceptions. In the discussion of Video Interpreting Services at p. 34522, the statement is made that “[t]he video phone provides video transmission to a video monitor that permits the individual who is deaf or hard of hearing to view and sign to a video interpreter …” That statement perpetuates the stereotype that all hard of hearing people (and for that matter, all deaf people) communicate by sign language.

Yet in the discussion about proposed technical specifications for hearing-aid compatible A.L.S., the Department errs in the other direction, stating that “[r]equiring hearing-aid compatible A.L.S. enables persons who are hard of hearing to hear a speech, a play, a movie, or to follow the content of a trial.” The implication is that A.L.S. are an adequate A.A.S. for all hard-of-hearing people, where in fact, no matter how good the ALS may be, there will be some S.H.O.H. people who will still be unable to hear the speech, the play, the movie, or follow a trial.

Finally, in the discussion about movie captioning, the N.P.R.M. has it exactly right when it states squarely and correctly that “[c]aptioning makes films accessible to individuals whose hearing is too limited to benefit from assistive listening technology.”

Confusion About Why S.H.O.H. are Underserved

We believe the confusion arises when what are essentially clinical descriptions of degrees of hearing loss are applied to discussions about appropriate A.A.S. When descriptions that might prove useful in one context are applied in a different context, a false impression is created of relationships that don’t exist, namely, that all people with a similar degree of hearing loss require a similar A.A.S. In fact, there are people who might have significant measurable hearing, but who, for one reason or another, prefer to communicate in sign language. Clinically, they may be hard of hearing, but the appropriate A.A.S. for them is sign interpretation. Conversely, there are people with no measurable hearing, who might be considered clinically deaf, but who still communicate via spoken language.

A.D.A. Statute

A.D.A. is not a statute with a medical or clinical purpose. Rather, it is a civil-rights statute aimed at ending discrimination against people with disabilities by, among other things, providing appropriate A.A.S. That being the case, we believe either that the regulations should define “deaf” and “hard of hearing” in terms of the appropriate A.A.S. rather than in terms of degree of hearing loss, or that the regulations should dispense with the terms altogether, and use terms like “people who communicate via sign language” instead of “deaf or hard of hearing” people.

While Wash-CAP’s principal focus in on ensuring that the needs of the S.H.O.H. are recognized and met, Wash-CAP does not wish to suggest that any Title II or Title III facility should reduce the A.A.S. offered to those with mild hearing impairments or to those who use sign language as their principal means of communication. Our argument is that the S.H.O.H. do not presently receive appropriate A.A.S. in a systematic manner. We are working to change that, and it is to that end that our comments are being directed.

Hearing-Aid Compatible Assistive Listening Systems & Assistive Listening Devices (A.L.S. or A.L.D.)

We welcome the proposal (Fed. Reg. June 17, 2008 at p. 34513) to require that A.L.S. be hearing-aid compatible. A.L.S. that substitute for rather than supplant individually fitted hearing aids offer only amplification. They are generally suitable only for those who have mild losses – people who should wear hearing aids, but often don’t.

As stated earlier though, we are concerned about the statement that A.L.S. are an appropriate A.A.S. for the hard of hearing. We would ask, therefore, that the sentence presently reading “[r]equiring hearing-aid compatible A.L.S. enables persons who are hard of hearing to hear a speech, a play, a movie, or to follow the content of a trial,” be modified to say “hearing-aid compatible A.L.S. enable[s] many but not all persons who are hard of hearing …”

“Hearing Impairments” and “Deaf or Hard of Hearing” Terminology

We welcome the proposed amendments to the definitions (Fed. Reg. June 17, 2008 at p. 34521) replacing the term “individuals with hearing impairments” with the phrase “individuals who are deaf or hard of hearing,” and we particularly welcome the use of the disjunctive “or,” suggesting correctly that the deaf and the hard of hearing are two different groups. Nevertheless, we believe the Department is missing a golden opportunity to truly clarify the distinction.

Since the A.D.A. is about furnishing accommodations to those of us who are physically challenged, we believe it would be appropriate to distinguish between the “deaf” and the “hard of hearing” on the basis of the requisite A.A.S. We would therefore suggest the following addition to the quoted sentence:

“As used herein, ‘individuals who are deaf’ refers to those individuals whose principal means of communication is sign language. ‘Individuals who are hard of hearing’ refers to those individuals with hearing limitations such that they cannot fully comprehend or enjoy aurally delivered material without assistance, but whose principal means of communication is spoken language, not sign language.”

If the A.D.A. dealt with the physiology of hearing, those definitions might be objectionable, because as pointed out, there are surely some people with measurable hearing who communicate via sign language, and there are people with no measurable hearing who communicate using spoken language. But in the context of the A.D.A. as a civil-rights statute aimed as securing appropriate aids and services, we believe the suggested definitions are both appropriate and useful.

Video Interpreting Services

The material on Video Interpreting Services (Fed. Reg. June 17, 2008 at p. 34522) repeats and in some sense amplifies the common stereotype that conflates people who are deaf and people who are hard of hearing. The specifically objectionable sentence is the one stating that “[t]he video phone provides video transmission to a video monitor that permits the individual who is deaf or hard of hearing to view and sign to a video interpreter …”

The problematic implication is that people who are hard of hearing are accommodated by the availability of sign-language interpretation. In point of fact, VIS accommodates people who use sign language, but only those people.

Should Justice adopt our suggestion of defining “deaf” and “hard of hearing” in terms of the required A.A.S., then the reference to V.I.S. should delete “hard of hearing,” and state specifically that it is only the “deaf” (as defined for A.D.A. purposes) who view and sign. Alternatively, we would urge that when the regulations refer to signing as an appropriate A.A.S., they state specifically that this is an accommodation for people who communicate by sign language. Thus, instead of stating that V.I.S. “permit[s] the individual who is deaf or hard of hearing to view and sign … ,” the sentence should say that V.I.S. “permit[s] individuals who communicate using sign language to view and sign …”

Accessible Seating

The sections dealing with accessible seating contain a troublesome omission. While accessible seating and ticket policies related to the same are discussed extensively in the proposed regulations, (Fed. Reg. June 17, 2008 at p. 34527 et. seq.), the discussion appears to refer only to wheelchair seating. In fact, under many circumstances, the need is just as great with respect to seating for both the S.H.O.H. and the deaf.

Again, the issue relates to the appropriate A.A.S. – sign-language interpreters for the deaf and captioning for the S.H.O.H. Generally speaking, both sign-interpreters and screens that display captions are visible only from certain portions of the facility. (While hand-held or built-in monitors that display either captions or sign interpretations at every seat are technically feasible, they are considerably more expensive than a single interpreter or display screen visible from only certain areas, so those every-seat options are not widely used). In that case, the availability of accessible seating is just as critical to the deaf or S.H.O.H. as to wheelchair users. We would urge the Department to amend the proposed regulations to recognize that fact.

Captioning at Movie Theaters

Movie captioning may be the most important single accessibility issue to the S.H.O.H. and deaf communities because uncaptioned and therefore inaccessible movies are the single most socially isolating issue that involves Title III facilities. That is so because movies are almost always accessible after-the-fact on captioned D.V.D.s. So instead of going to the movies with our friends, we wait and see them when they become available on D.V.D., at which point, our friends have already seen them.

We may not ultimately miss out on the movies, but we do miss out on the ubiquitous social occasion of movie-going. Because one of the principal stated purposes of A.D.A. is to remedy the “serious and pervasive social problem” of the isolation and segregation of individuals with disabilities, 42 U.S.C. § 12101(a)(2), addressing communications barriers that create and perpetuate social isolation and segregation is a mandate of the highest order.

For those reasons, we think the proposal to require that all new movies be displayed in captioned format at every showing is not only appropriate, but is long overdue. We would answer Question No. 24 (Fed. Reg. June 17, 2008 at p. 34531) with a vehement “yes.” Moreover, because the real issue with movies is ending the social isolation and segregation of those with hearing loss, the requirement ought to be that the captions be visible from every seat, or if not from every seat, from a sufficiently large fraction of the seats that individuals who require the captions will be able to attend showings with friends on the relatively impromptu basis that generally characterizes movie attendance.

We applaud the proposal to require captioning of every showing, while leaving the manner of providing the captions up to the individual exhibitors. We know that some exhibitors have found that open-captioned movies have been poorly received by the hearing audiences – and particularly by younger moviegoers. Those exhibitors might prefer to offer closed captions, visible only to those who request a display device. Other exhibitors who serve a different audience, or who have had a different experience with open captions, might prefer to show some or all of their films with open captions. Moreover, requiring that specific objectives be achieved without regulating the means to be used encourages further technical and cost-saving innovations.

While we recognize that the Department cannot require actions that would constitute an “undue burden,” we believe the best way to avoid imposing an undue burden on any one exhibitor is to impose a uniform requirement on all exhibitors. With a uniform requirement, the cost of compliance is spread evenly across all competitors in an industry and passed on to all consumers, which doesn’t disadvantage those who comply and unfairly benefit non-compliant competitors.

Movie captioning has been a long time coming. As the Department acknowledges in the N.P.R.M., captioning is technically feasible, readily available, and absolutely essential if the deaf and S.H.O.H. are to be able to enjoy the movies with other Americans. It is our civil right, and the time is now. Please make movie captioning a requirement.

Stadium Captioning

Although we agree with the Department that safety and emergency information at stadiums with a capacity of 25,000 seats or more should be captioned, we are opposed to the proposed regulation. (Fed. Reg. June 17, 2008 at p. 34532). Our reasoning is that requiring captioning only of certain announcements at stadiums of a certain size may, by implication, be taken as a statement that other information at other venues need not be captioned. In addition, we see two specific problems with the proposal.

First, we believe that requiring the captioning of some information but not other information makes no sense. If a captioning system – an input device and a reader board – must be put into place for emergency and safety messages, then that same system could be used to caption other information with little if any additional burden being placed on the facility.

Second, while we understand that the Department intends at least initially to require safety captioning only at larger stadiums, we question whether seating capacity, by itself, is the appropriate criterion to use. Some spacious stadiums are frequently used by small entities, and requiring captioning at those events might make little sense in light of the resources of the entity compared to the size of the audience. (By way of extreme example, the California Institute of Technology plays its home football games in the Rose Bowl, generally in front of a “crowd” numbering in the dozens). Conversely, there may be smaller stadiums, and there are certainly basketball arenas, with seating capacities of less than 25,000 that draw sellout crowds, and could readily absorb the cost of captioning.

In response to Question 29 asking whether all relevant information should be captioned, we believe that the text of Title III itself provides the appropriate criteria. It states that “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 …” 42 U.S.C. § 12182(a)(emphasis added). We believe that statutory provision states quite clearly that disabled individuals are entitled not just to physical access, but to “enjoyment,” which Merriam-Webster defines as “having a good time.” Simply put, the underlying thrust of A.D.A. is that those of us with disabilities are entitled to have just as much fun at the Old Ball Game as anyone else. When public-address announcements are made to enhance the enjoyment of hearing patrons, then those announcements ought to be captioned for H.O.H. and deaf patrons.

ADA recognizes that not even the best of technology or the best of intentions can suffice in all instances to create equality of enjoyment. Therefore, it provides an outer limit on the obligations of the facility. That limit occurs when providing a requested A.A.S. such as captioning “would fundamentally alter the nature of the good, service, facility, privilege, advantage or accommodation being offered, or would result in an undue burden.” 42 U.S.C. § 12182(b)(2)(A)(iii).

Reading those statutory provisions together, Wash-CAP believes that all information disseminated aurally to the public should be captioned unless doing so would constitute an undue burden.

With the foregoing in mind, we think that it would be a mistake to require captioning of some but not all announcements, and to do so only at stadiums of a certain size. We fear that by negative implication, requiring limited captioning would be interpreted as a statement that captioning ought not be undertaken for different purposes and in smaller venues. Should the Department impose this proposed requirement, we would ask the Department to preemptively refute that possible inference by stating explicitly that it is not declaring that captioning of other information might not be required if such captioning would contribute to the full enjoyment of deaf and H.O.H. patrons, and if it would not constitute an undue burden on the facility.

Safe-Harbor Provisions

The Department has asked for comments on its proposal to create a safe-harbor provision, (Fed. Reg. June 17, 2008 at p. 34533 et. seq.) under which small businesses would be presumed to have fulfilled their obligations to remove architectural barriers if, during the previous year, the facility has spent 1% of its gross revenue on barrier-removal efforts. We recognize that the Department does not intend to apply this provision to communications barriers, which it is addressing under the aids-and-services provision of subsection (iii) of Section 12182(b)(2)(A) rather than under the independent subsection (iv) dealing with barrier removal. We also recognize that disability-advocacy groups in general have opposed the safe-harbor concept for fear it would relieve facilities of the need to take steps that might otherwise be required.

Yet we see merit in the Department’s proposal to more specifically delineate what constitutes “readily achievable” action under subsection (iv), rather than leaving that determination to a case-by-case, fact-specific inquiry. We would see merit also in extending that rationale to similarly delineating the “undue burden” limitation found in subsection (iii) dealing with auxiliary aids and services.

The advantage we see is that at the moment, nobody has any certainty about when the “burden” of furnishing auxiliary aids and services becomes “undue.” Each particular request for aids and services will need to be decided on a specific set of facts, and while some cases will be so clear-cut that summary disposition is possible, many claims will require full trials on the merits.

Without action by the Department, a body of case law will emerge to delineate the contours of what is and is not an “undue burden.” But the cumulative transactional costs of repeated litigation necessary to create that body of law will be substantial. While that long and expensive process of case-by-case delineation is good for the lawyers involved (such as me), one can legitimately ask whether it is in the best long-range interests of either the disability community or the affected facilities.

We speak in terms of delineation, not definition. Should the Department move forward on this course, we believe the appropriate course would be for the Department to establish guidelines that would constitute a rebuttable presumption that a certain quantum of spending satisfies the “readily achievable” or “undue burden” standard. Should that be done, a facility asked to furnish aids and services that cost less then the guideline amount would bear the burden of rebutting the presumption that the request was not unduly burdensome. Conversely, if the cost of the requested aids and services exceeded the guideline amount, then the requesting party would need to rebut the presumption that the request would be unduly burdensome.

We believe this approach would dramatically reduce overall transaction costs by promoting settlements (or forestalling lawsuits) when the cost is clearly above or below the guideline, and could facilitate summary disposition of many other cases.

If the Department agrees that establishing a presumption tied to costs would be appropriate, then the question arises of what that presumption ought to be. We believe that is a very complex question, but there are certain considerations that we would suggest should be included.

First, the presumption needs to be based on readily ascertainable factors, such that both the facility itself and potentially requesting parties can calculate the amount with reasonable certainty and reach the same factual result.

Second, the factor or factors used as a basis need to be relatively immune to manipulation, such as using gross revenue rather than net profits.

Third, we think that some credit needs to be given for past actions so that those facilities that have made no effort to remove barriers or furnish aids and services have a heavier obligation going forward than do those facilities – competitors, perhaps – that have already committed resources to those efforts.

Facilities Significant Problems

We encounter in our advocacy work is the failure on the part of facilities to understand that in terms of the aids and services required to understand aurally delivered material, the deaf who use sign language and the hard of hearing who do not are separate groups with separate needs. Certain language in the N.P.R.M. perpetuates that confusion. We have suggested ways to clean up that language, and also invite D.O.J. to define the terms in a way that will clearly draw the distinction.

Movie Captioning As a Requirement

We believe that movie captioning is long overdue, and encourage D.O.J. to impose captioning as a requirement.

Safe-Harbor Provisions vs. Guidelines

We find much to like in the concept of a “safe-harbor” provision, because we think making terms such as “readily achievable” or “undue burden” more explicit will dramatically reduce litigation costs. We suggest, though, that instead of creating a hard-and-fast “safe harbor,” D.O.J. consider issuing guidelines that would serve as rebuttable presumptions rather than hard-and-fast rules. Creating a presumption would provide a measure of certainty, but still leave room for a different result in exceptional circumstances.