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Response to NYT article on ADA

February 5 2008 | by

In the New York Times Sunday Magazine’s “Unintended Consequences” (Jan. 20, 2008), authors Stephen J. Dubner and Steven D. Levitt pose the argument that some “special-interest” laws, such as the American with Disabilities Act (ADA), may hurt the very people it intended to benefit.

Dubner and Levitt, who are also the authors of the best-selling book “Freakonomics” and a blog of the same name, give a qualitative and quantitative example supporting their case. First up: A Deaf patient from Los Angeles sought medical advice and treatment for her knee from Dr. Andrew Brooks. She asked the doctor to hire and pay for a sign language interpreter, and told him that she was well within her rights to do so under the ADA.

Brooks agreed to pay, but surmised that he’d lose money by treating the patient: “As it turned out, an interpreter would cost $120 an hour, with a two-hour minimum, and the expense wasn’t covered by insurance…That would mean laying out $240 to conduct an exam for which the woman’s insurance company would pay him $58 — a loss of more than $180 even before accounting for taxes and overhead.”

I am also Deaf. Like the Deaf patient, I value my independence. During undergraduate and graduate school I asked for and got an interpreter for my larger classes and the college paid for it. Universities must do so under Section 504 of the ADA because nearly all post-secondary institutions receive federal funds. But Section 504 explicity says: “Although the student must request necessary accommodations, the institution must demonstrate that the accommodations it provides are effective.”

In other words, a student may request a number of accommodations, but the institution only need provide accommodations that result in effective participation. So, for my smaller classes I chose to read lips. I even finangled a way for a classmate to receive extra credit for taking notes for me. And I used technology as much as I could to help me get through the every day.

My advice to the Deaf patient would have been to meet the doctor halfway. She might have helped to pay for an interpreter, or used an interpreter for the first couple of sessions. She might have had him write notes on his pad (Brooks did suggest this solution, but she refused.) She might have brought a hearing friend or relative with her. Even better, she might have used technology such as Instant Messaging (a universally accepted form of communication for both deaf and hearing people.) The good doctor on his Blackberry and she on her Sidekick. Fun, no?

There is one solution that would have worked perfectly, if the Federal Communications Commission (FCC) would consider funding it. It’s called Video Remote Interpreting (VRI). On this type of call, both the deaf and hearing parties can be in the same room and a sign-language interpreter will sign/translate from a remote location on a Videophone. It’s currently offered as a paid service by Sorenson Communications, but it’s cheaper than hiring an interpreter on site.

Sorenson does offer a free, FCC-funded solution called Video Relay Service (VRS). In this scenario, the doctor dials 888-FAST-VRS and connects to a sign-language operator who calls the patient on a Videophone. The doctor speaks to the operator, who in turn signs to the patient….the patient signs back to the interpreter….and the interpreter speaks her words to the doctor.

Several years ago I met the CEO, Jim Sorenson, when I was an Assistive Technology reporter at BusinessWeek. He’s a smart and well-intentioned guy. I tried out the Videophone at the Lexington School for the Deaf in Queens, New York. I also sat in one of their new Videophone booths that is designed for public spaces, like universities and airports. The Videophone booth looks like one of those $3 photo booths at Coney Island — sparse, but private.

At the end of the day, the Deaf patient’s attempt to get her needs fulfilled (her way and only her way) is at odds with the spirit of the ADA and its “reasonable accommodation” premise. These types of situations could backfire and hurt others who are disabled, which is the argument that Levitt and Dubner make.

In the end, the Deaf patient didn’t need the knee surgery. But I can’t help but wonder if the doctor felt ambushed. Would he ever accept a Deaf (or disabled) patient again?

***

Dubner and Levitt’s next example from their article cites findings from two economists who say the ADA has had a negative effect on the employment of the disabled. “Employers, concerned that they wouldn’t be able to discipline or fire disabled workers who happened to be incompetent, apparently avoided hiring them in the first place,” Dubner and Levitt said.

I think Dubner and Levitt make a good case, but I am going to need to do some of my own research. I believe that employers are not as concerned about incompetence (a complete inability to function) as they are about the disabled employee’s ability to consistently perform a job to par.

That’s because more of Corporate America has adopted Six Sigma, performance management systems and merit-based pool bonus structures. The result is that one person’s performance is intrinsically tied to his or her team’s output. Much like nobody wanted the handicapped kid on their Dodge Ball team, it has become harder for the disabled to be given a chance to prove themselves because the stakes are higher for everyone involved. Simply put, it’s a trust issue.

That’s why it is so pressing that people with disabilities go above and beyond to educate themselves and their employers about their disability. They must also capitalize on technological advances, such as video relay, text readers and speech applications, that will help them dispel notions that they can’t pull their own weight for the team. What might look like incompetence is really just ineffectiveness — because the person with a disability hasn’t asked for or been given the right tools.

All in all, getting to par is possible and doable. But it takes chutzpah on behalf of the disabled employee, and education and understanding from the able-bodied boss that given the right accommodations, his employee can succeed.

The economists’ results were published in the Journal of Political Economy in 2001 — nine years after the ADA was enacted — but the data could be older than 2001. Advances in technology today and tomorrow will continue to help build the bridge between the able-bodied and people with disabilities in the workplace.

In summary, everyone should rise to meet the “reasonable accommodations” of the disabled. But the disabled should also take responsibility for ensuring their requests will be effective, are mutually accommodating and don’t overstep the boundaries of the law’s good intentions.

  • Beza

    The woman was within her rights to request an interpreter. The doctor’s immediate reaction of suggesting alternative forms of communication signals to me a lack of empathy and willingness to accomodate the disabled – and this type of reaction is exactly what the ADA was created to combat.

    The doctor missed an opportunity to really connect with the disabled community.
    He could have become a “Disability Advocate” catering to people with all disabilities. He might gain more patients, which would allow him to raise the cost of service in order to pay for interpreting services. Furthermore, the doctor could put a full-time sign-language interpreter on staff, which would eventually cost less than hiring one by the hour. (He could even learn to sign himself!) I understand that he’s a knee specialist, so he’d have to find an awful lot of disabled patients who were willing to put up with the higher prices in exchange for interpreting and other services. But why not consider sharing an office with four other doctors and split the cost of a full-time interpreter. They might gain in back reputation and goodwill what they’d lose in profit.
    Whether the motivation is monetary or social, the doctor could have handled this situation creatively to bring about a solution that works for both parties.

  • Gregory

    The Doctor did respond creatively. He immediately offered several solutions (to the best of his current knowledge). And ultimately accepted the patient and absorbed the added out of pocket cost without complaint.

    The patient, on the other hand, chose only one route. Her route. She did not suggest additional alternatives. She lacked creativity.

    The higher point here, and well made by Profoundly Yours, is that both parties had an opportunity to make a choice together. They both also had the opportunity to identify and use assistive technology (much how IM has become all the rage in the workplace, following e-mail’s displacement of the phone, and the phone’s displacement of the face to face meeting).

    This is not to say that assistive technology would have provided the silver bullet solution. Rather, that more fully informed persons can together find more mutually agreeable outcomes.

    Both parties had the opportunity to think and do above the narrow scope (or guideline) of the law. The Doctor and Patient both turned only to manual support processes (note taking, ASL).

    And this isn’t to fault either party. They likely turned to what they know, to what felt like the obvious answer. I too (with sound hearing) likely would have first thought written notes? then perhaps a friend could help? or then sharing the cost burden for third-party professional help? These are natural “empathetic, willing and creative” options. What they are not … is radically new.

    And as Profoundly Yours basically puts it … the doctor and patient could have both done just a little more, even if just to pull out the Blackberry and SideKicks in their pockets to realize it’s the 21st century and their must (by now) be communication advancements that could help them together solve their communication gap.

    One last example, when I travel to Spain (and although I don’t speak Spanish), I’ve yet to take an interpreter with me. However, I do take my dictionary along (it’s lighter weight, clearly). Before my next trip, though, I might just give Rosseta Stone a try.

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