A fascinating case, Belton v. Georgia, 2012 WL 1080304 (N.D. Ga. March 30, 2012), recently came down from the northern district of Georgia. In this case, two people who were both deaf and suffered from mental illness sued the state of Georgia because the state of Georgia simply was not set up to accommodate persons who were deaf and whom communicated in ASL in their group homes. In particular, the plaintiffs alleged that the state of Georgia had four institutional failures with respect to serving the deaf that violated the Americans with Disabilities Act and section 504 of the Rehabilitation Act. Namely, the lack of ASL fluent mental health care practitioners; failure to reimburse medical providers for interpreting services; failure to provide deaf appropriate group home care settings; and refusal to provide adequate funding for deaf services. The court certified the case as a class action on behalf of all deaf Georgia citizens who either are or will be in need of public mental health services but who could not receive therapeutic benefit from those services since Georgia was not set up to accommodate deaf people who communicated through ASL. The plaintiff put forward evidence that the state of Georgia had no funding mechanism to reimburse healthcare providers for the cost of interpreting services. Instead the costs for same were absorbed by the provider (see below). The plaintiff also contended that the state of Georgia by providing a level of funding for deaf services that was disproportionate to the percentage of the population that is deaf also violated the Americans with Disabilities Act and the Rehabilitation Act.
There are several things fascinating about this case. First, it is one of the few situations, if my reading of the case law over the years is any indication, where a summary judgment motion was granted on behalf of the plaintiff.
Second, the court held that for a deaf person to equally benefit from mental health services, the provider providing those services must also be fluent in ASL in order for those persons to be able to obtain meaningful access to state provided services offered to the general public. The focus of the court was whether the communication between the deaf and the practitioner with an interpreter would be equivalent as to the communication between a hearing person and the practitioner. The court held that such communication is not equivalent. The court relied on a Florida decision, Tugg v. Towley, a 64 F. Supp. 1201 (S.D. Fla. 1994), which emphasized that the use of an interpreter inhibited the effectiveness of mental health counseling for the deaf and that the use of an interpreter, given the abstract nature of ASL, greatly increased the risk of miscommunication.
Third, critical to the court’s analysis was actually the testimony of two representatives of the state of Georgia, both doctors, whom testified that the state has a severe shortage of ASL fluent clinical workers as a result of a lack of state resources and institutional infrastructure. They also agreed that serving the deaf in group homes was ideal but only if the group homes were set up in a way to get the deaf meaningful access to those services, which, in their opinion, was not the case.
Fourth, the state did not reimburse group homes for providing services to the deaf. Rather, the state gave the group homes the additional 5% in the group home was free to use some or all of that money to serve the deaf population that it had. The court held that simply wasn’t sufficient to meet the reasonable accommodation requirements of the state imposed upon it by the Americans with Disabilities Act.
Finally, the court saved order remedies section the question of whether the funding vis-à-vis for enabling deaf person to be serving group homes needed to be reconfigured. The court ordered the parties to collaboratively reach agreement on the issues.
What can be taken away from this? The key thing to take away is that reasonable accommodations may not be enough (the state had paid for an interpreter for services in the home). With respect to title II, as we have also seen in the New York taxi case discussed in another blog entry, meaningful access also must also be considered.
Preventive law tip: human resources should develop outreach to the deaf community and to practitioners that serve the deaf. It is possible that there will not be enough practitioners to meet the needs. However, with an outreach program, at least you may be able to show good faith and how the specific accommodation despite best efforts is not possible.