HOLDFORHLRWORK:New York Firm Advocates for Deaf Community

New York’s Eisenberg & Baum LLP for the past six years has dedicated much of its practice to serving the needs of the deaf and hard-of-hearing community.

Health-care providers and health systems can take a lesson from the firm’s work, which focuses to a large extent on ensuring deaf individuals receive equal access to services by bringing claims under the Americans With Disabilities Act, the Rehabilitation Act, the Affordable Care Act’s Section 1557, as well as state anti-discrimination laws.

The firm exclusively represents plaintiffs, but it has suggested model policies and procedures in several cases that could help providers address concerns in health-care settings.

Discrimination Experience.

Partner Eric M. Baum had over 20 years of experience litigating discrimination cases when he realized deaf individuals often lacked representation in legal matters and didn’t know where to go to find it. “No law firm was handling these cases,” Baum told Bloomberg BNA, noting he saw many instances of blatant discrimination against the deaf that went unremedied.

Baum convinced partner Douglas Eisenberg the firm “could make a difference,” and the Eisenberg & Baum Law Center for Deaf and Hard of Hearing was born. Partner Andrew Rozynski joined the firm and now serves as the center’s co-director, along with Sheryl Eisenberg-Michalowski, the firm’s deaf liaison/advocate.

Eisenberg-Michalowski has been deaf since birth, and Rozynski, whose parents are deaf, is fluent in American Sign Language (ASL). Four attorneys and two full-time paralegals round out the center’s staff.

Personal Reasons.

Rozynski has very personal reasons for representing deaf clients. He told Bloomberg BNA he often acted as an interpreter for his deaf parents as he was growing up. When his father lost his job during Rozynski’s college years, he watched as potential employers lost interest once they learned his father was deaf.

Following that experience, Rozynski designed his legal education to prepare himself to serve the deaf community. He opened his own small law firm after graduation exclusively to represent deaf clients. He brought that practice to Eisenberg & Baum after meeting Eisenberg-Michalowski at a conference and learning the firm shared his goals.

Eisenberg-Michalowski experienced discrimination first-hand. Mainstreamed through the New York City educational system, she often felt as though she were drowning while in school, she told Bloomberg BNA. It wasn’t until college, and later grad school, that she realized she had the right to demand support services that would help her succeed.

Eisenberg-Michalowski’s role at the firm is to facilitate matters between the attorneys and their deaf clients, ensuring the clients understand the legal process. She also spreads word of the firm throughout the deaf community.

Many deaf people still feel lost, she said. Some don’t realize there are lawyers who know and understand the issues they face and are able to represent deaf people effectively. When she explains the firm’s mission, she finds community members are excited to learn they have advocates to fight for their rights, including equal access to health care, Eisenberg-Michalowski said.

Range of Issues.

The firm handles a range of legal issues for its deaf clients but mostly pursues discrimination claims on their behalf. Clients often seek their assistance with workplace-based claims, and the firm’s lawyers speak up for clients in their interactions with police. Public authorities often don’t understand how to communicate with deaf people, and misunderstandings occur that lead to a need for legal counsel, the attorneys said.

The need for advocacy is especially acute in the medical setting, Baum said. Although the ADA for over 25 years has required places of public accommodation—including hospitals and health-care providers—to ensure they have a means of effectively communicating with deaf and hard-of-hearing people, many don’t understand what that entails, Rozynski told Bloomberg BNA.

Providers for many years relied on family members to interpret for deaf patients or believed they could carry on complex medical discussions with deaf individuals through lip-reading or passing notes. These are “misconceptions,” Rozynski said. Most deaf people can’t follow a conversation through lip-reading, and many have difficulty comprehending doctors’ written notes.

English isn’t a deaf person’s first language, Rozynski said, and deaf people can have the same difficulties with English comprehension as non-native English speakers. Many people grow up using ASL to communicate, and that isn’t the same as speaking English.

Efforts Made.

Providers have made efforts to comply with the ADA’s requirements, but those efforts sometimes fall short.

Most deaf people prefer live ASL interpreters, Eisenberg-Michalowski said. Interpreters who are familiar with medical terms generally are thought to be the most effective way of communicating with deaf patients or patients’ deaf family members.

Hospitals and health-care providers, however, have said live interpreters are expensive. And, as Rozynski said, it isn’t always necessary to have one on staff to provide 24/7 interpreting services in a hospital setting.

Some providers have tried to fill the gap by using video remote interpreting (VRI) services. VRI services use the internet to connect an off-site ASL interpreter to a deaf patient or family member. The services can be available at odd times or in areas where there isn’t a large demand for the services.

VRI services also have several drawbacks, according to Eisenberg-Michalowski. A good internet connection, for example, is essential to use VRI services smoothly, and many hospitals simply don’t have one, she said. Rozynski added that there may be clinical situations in which VRI services aren’t a good fit. For example, a patient who has just had back surgery usually isn’t able to sit up and look at a computer screen to follow the remote interpreter.

Improvement Suggestions.

Health-care providers and facilities can best serve deaf people by assessing each individual’s needs as soon as he or she arrives seeking treatment, Baum told Bloomberg BNA. Each person should have an individualized communication plan.

The plan should address the circumstances under which the individual will need a live interpreter versus when a VRI service would be adequate, he said. For example, live interpreters may be needed prior to complex procedures to explain to patients the treatment’s scope, the risks involved and the discharge plan. But there might be a time during a hospital stay when the patient could communicate effectively with providers through some other means. VRI services provide flexibility, Rozynski said.

Across-the-board plans aren’t optimal because “patients’ needs vary with the situation,” Baum said. He recommends providers assess communication needs on a case-by-case basis and that they designate a person to be in charge of ensuring the plan is followed.

Health-care providers often fail in providing effective communication for deaf people because they “don’t ask what’s needed; they just go with what they think is appropriate,” Rozynski said.

Providers balk at providing some means of communication because of the cost, the attorneys noted. But providing a live ASL interpreter or training staff to care appropriately for deaf patients may cost a lot less than a lawsuit. Rozynski said doctors or clinics required to comply with the ADA also may be eligible for tax credits available to small businesses that implement effective communication systems.

And then there is the publicity: Eisenberg-Michalowski said deaf individuals tend to spread the word when they find health-care providers who are sensitive to their needs and willing to provide interpreting services. There are millions of deaf people, Rozynski added.

Cultural sensitively also is important, Eisenberg-Michalowski said. She said hearing individuals shouldn’t hesitate to approach deaf people and talk face-to-face. It’s important to speak to the person, not to his or her interpreter, Eisenberg-Michalowski said.

Eisenberg & Baum wants to change the way employers, providers and others treat members of the deaf and hard of hearing community, Baum told Bloomberg BNA. The firm’s biggest successes, he said, have come when it has been able to “effectuate positive policy change.”