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Persons who are deaf-blind need a seat at the legal table

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Abstract

After centuries of neglect, the voices of the deaf-blind population need to be heard. Society in general, and the legal profession in particular, must be committed to empowering persons who are deaf-blind. It’s time to make room at the legal table. Pull up a chair.
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EXPERT OPINION
Persons Who are Deaf-blind Need a Seat at
the Legal Table
Daniel Pollack and Elisa Reiter February 16, 2022
We have all heard about Helen Keller, who, when she was only 19
months old, contracted an illness that left her deaf, blind, and mute. Quite
likely, few of us have ever interacted with someone who is both deaf and
blind. As a young adult, I (D.P.) had the opportunity to spend five
summers working at a camp for adults who were blind. A subgroup of
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the campers was both deaf and blind, a/k/a “deafblind.” Recollections of
going fishing and bowling with these individuals and many other
memories are still fresh, and in part, the motivation for this article.
The data
The National Center for Deaf-Blindness provides information helpful to
families as well as information regarding current events, and national
and state initiatives. The World Federation of the Deafblind (WFDB) has
just concluded a Global Survey on the Situation of Persons with
Deafblindness. According to the 2019 National Deaf-Blind Child Count
Report, “The total December 1, 2019 point-in-time deaf-blind “snap shot”
count of 10,627 is an increase of 723 from the 2018 total of 9,904.” It
adds that “the age group distribution has remained relatively stable over
the past five years”:
Birth through 2 571 (2015) to 658 (2019)
3 through 5 1,160 (2015) to 1,299 (2019)
6 through 17 6,277 (2015) to 6,757 (2019)
18 and older 1,566 (2015) to 1,913 (2019)
The unfortunate fact is that while there are many individuals and groups
who are left underserved by society, the deaf-blind population is
certainly one of the most underserved. Aside from its obviously small
size, one key reason for this is that the population has hard-wired
difficulty speaking for itself. This is particularly evident in the legal
realm. In an informal search of recent (2020 to the present) cases, only
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two involved plaintiffs who were deaf-blind. These cases are briefly
summarized below.
Two recent cases
In Melton v. Cal. Dep’t. Of Developmental Disabilities, plaintiff Selena
Melton, by and through her guardian ad litem, Beverly Cannon Mosier,
filed suit against defendant California Department of Developmental
Services (“DDS”), Regional Residential Care Center #3 (“Arleen’s”) and
Regional Center of the East Bay, Inc. (“RCEB”). The suit alleged that the
defendants violated Federal and state antidiscrimination laws by placing
Ms. Melton in a group home that lacked effective communication aids.
Motions to dismiss were filed by all three defendants, arguing a lack of
subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) for failure to state a claim as required by Federal Rule of Civil
Procedure 12(b)(6). Ms. Melton presented as a 52-year-old woman who
is deaf-blind, with:
1. Mild intellectual disability,
2. Mild cerebral palsy,
3. Epilepsy, and
4. Anxiety.
Deaf since birth, and blind since 2010, Ms. Melton uses Tactile American
Sign Language, or “ASL” to communicate. As noted in the case, “Tactile
ASL is a language in which the receiver places their hands lightly over
the signer’s hands to interpret the signs through touch and movement.”
In light of her disabilities, Ms. Melton had been receiving services
through DDS, through California Services Lanterman Act, California
Welfare & Institutions Code, Section 4500 et seq.
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Services are rendered under the foregoing statutes whereby DDS
contracts with nonprofits to establish a network throughout California of
regional centers. Those regional centers are in turn responsible for
“determining eligibility, assessing needs, and coordinating the delivery of
services for developmentally disabled persons (referred to in the
statutes as ‘consumers’).” If and when a regional center concludes that an
individual has a developmental disability, a planning team meets to
coordinate services. The planning team consists of the disabled
individual, that person’s parents or guardian, one or more of the regional
center’s representatives, and any other person who may be included as a
participant; the planning team then drafts an individual program plan for
the disabled person.
The goal is for the individual program plan to “maximize opportunities
for the individual to be part of community life, enjoy increased control
over his or her life, acquire positive roles in community life, and develop
the skills to accomplish the foregoing.” Ms. Melton had been a client for
approximately 50 years. Prior to being placed with Arleen’s, the
administrator of the home where Ms. Melton had previously been placed
recommended that Ms. Melton be placed at a home where staff could
communicate using ASL. In addition, the administrator in Ms. Melton’s
prior placement also requested that Ms. Melton have a placement where
there were other residents who were deaf and who could sign. Despite
these recommendations, Ms. Melton was placed at Arleen’s, where no
staff member could communicate using ASL, nor did any of the staff have
training in dealing with a consumer who was deaf-blind. Given the
foregoing, Ms. Melton’s suit noted that her current placement was one
that kept her in almost complete isolation, thereby violating her rights,
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and “causing her physical and mental pain and severe emotional
distress” for decades. Ms. Melton sought injunctive relief and damages.
Federal courts are courts of limited jurisdiction. . .[and] it is to be
presumed that a cause lies outside of this limited jurisdiction.” Under a
facial attack, the court determines whether the allegations are sufficient
to invoke the court’s jurisdiction, presuming that the plaintiff’s
allegations are true. Under a factual attack, defendants contest the truth
of the plaintiff’s assertions. Here, Ms. Melton, as a plaintiff, bore the
burden of proving her case by a preponderance of the
evidence. California’s Lanterman Act provides that issues pertaining to
the rights of disabled individuals who receive services pursuant to the
act shall be decided pursuant to the statute. The Lanterman Act sets out
an administrative procedure for those dissatisfied with the actions or
services of an agency, through a fair hearing process. In addition, the
Lanterman Act sets out a means of informal meetings to resolve issues
prior to such an administrative hearing. While the parties are bound by
the administrative decision, either side may appeal the decision “to a
court of competent jurisdiction.”
Melton’s pleadings argue that there have been two types of
discrimination: 1. That RCEB placed her in Arleen’s group home which
had neither a trained staff member nor an interpreter trained to provide
services to someone deaf-blind, and 2. That RCEB and DDS “lack policies
reflecting their obligation to provide effective communication.”
The defendants moved to dismiss Melton’s complaint in its entirety. As
the court held that Melton failed to exhaust her administrative remedies,
the case was dismissed without prejudice. However, the Court notes
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in dicta that because it is dubious that amending pleadings can “cure the
jurisdictional defect of these claims against RCEB and Arleen’s, it will
allow plaintiff an opportunity to amend such claims against the
systematic failure to accommodate the communication needs of deaf
clients.” Here, the court notes that there seems to be a lapse of policy,
much needed to accommodate those who might assert claims such as
Melton’s. The court goes on to note that if administrative efforts are
unsuccessful, that it will be incumbent upon DDS to “issue a letter of
noncompliant activities and establishing a specific timeline for the
development of a corrective action plan.”
Regarding Melton’s claims tied to violations of the ADA as to systematic
violations of her rights as a disabled person, the court finds that “plaintiff
must show that she was excluded from participating in or denied the
benefits of a program’s services or otherwise discriminated against.”
There must be a showing of discriminatory intent. In other words, the
agency’s failure to act must be related to something more than mere
negligence, but “involve an element of deliberateness.” The defendants’
motion for dismissal is granted; however, plaintiff is afforded the
opportunity to cure the factual defects in her pleadings. The court grants
Ms. Melton “leave to plead a theory that exempts her from the Lanterman
Act’s hearing process.”
In Am. Council of the Blind of N.Y., Inc. v. City of New York, the court
granted a summary judgment for the plaintiffs in a class action suit
brought against the City of New York, Mayor Bill de Blasio, the New York
City Department of Transportation (“DOT”) and the DOT Commissioner.
Summary judgment was granted on October 20, 2020. Thereafter, the
Court sets out its rulings “as to the remedy necessary to bring the City
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into prompt compliance” with the ADA as to Accessible Pedestrian Signal
devices (APS). How many intersections require APS devices? There are
13,200 signalized intersections that should have both “Walk” and “Don’t
Walk” signals, as well as APS information in non-visual formats. What
action is to be taken? By 2031, the Court rules that the City must install
at least 10,000 of the APS devices at signalized intersections, which
translates to at least 9,000 such devices being installed over the next
nine years, with all of such intersections having APS signals installed no
later than 2036. In the event that the defendants can show prior to 2036
that the Court’s directive has been fulfilled, the defendants can move to
adjourn the latter deadline. How? By showing that by the time that the
defendants move for adjournment that New York City’s “pedestrian grid
has by then become meaningfully accessible to the blind and visually
impaired.”
Two cases. In each case, the respective courts strive to assure the
accommodation of the plaintiffs. In one case, the focus is primarily on
one plaintiff. In the other case, the focus is on not only the plaintiff(s), but
on their city. “New York City has the highest population density of any
major American city. Walking ‘is a major form of transportation in the
city, and access to sidewalks is an important component of city life.’” In
each case, a court’s reach is extended to assure equal protection.
Courts, lawyers, and other potential players must be reminded that equal
justice for all is a basic doctrine. This core principle is assured for
persons with disabilities in Section 504 of the Rehabilitation Act of 1973,
as well as in Title II of the Americans with Disabilities Act of 1990. These
laws protect parents, prospective parents, and children with disabilities
from unlawful discrimination in regard to child welfare programs,
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activities, the ability to present to a court as a litigant, and services to be
provided through the court.
Conclusion
After centuries of neglect, the voices of the deaf-blind population need to
be heard. Society in general, and the legal profession in particular, must
be committed to empowering persons who are deaf-blind. It’s time to
make room at the legal table. Pull up a chair.
Daniel Pollack, MSW, JD is a professor at Yeshiva University’s School of
Social Work in New York. Contact: dpollack@yu.edu.
Elisa Reiter is a senior attorney at Underwood Perkins, P.C. She is double
Board Certified in Family Law and Child Welfare Law by the Texas Board
of Legal Specialization. Contact: ereiter@uplawtx.com.
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