A Vote for the Hearing Loss Community

January 2, 2021

As of this writing in mid-November, certain parameters appear to be set. Joe Biden will be President and will have the power to appoint heads of administrative agencies that affect us, particularly the Attorney General and the Department of Justice. Democrats will retain control of the House of Representatives and, pending the outcome of two Georgia Senate races in January, Republicans are likely to remain in control of the Senate. There is a solid 6-3 conservative majority on the Supreme Court, and many of the lower federal courts are becoming increasingly conservative as a result of President Trump’s appointments.

President: Candidate Biden had a long and surprisingly detailed platform on disability rights. If carried out, some of those provisions could have a positive effect for those of us with hearing loss. Among the items we noticed are:

• Naming a Director of Disability Policy, which would provide a point of contact for those of us with disability-related issues. Our hope is that the Disability Rights Bar Association, to which both of us belong, will have substantial input in filling that role.
• A pledge to aggressively recruit people with disability for a range of leadership positions, not just those positions directly related to disability programs.
• Recognition that people with disabilities like hearing loss have particular needs and concerns in their interactions with law-enforcement, health-care professionals, and the educational system.
• Reviewing Medicare coverage guidelines to see if expansion is necessary, which could potentially include coverage for hearing aids (more on this below).
• Emphasizing the inclusion of people with disabilities in emergency preparedness planning. For example, this might include text message notification systems for use during emergencies.
• Using federal funding to increase accessibility on public transit. For the hearing loss community, this might include funding to install a visual notification system for upcoming stops and emergency announcements.
• And one pinpoint issue we’ll all really appreciate – requiring captioning (and ASL picture-in-picture option) for all in-flight entertainment.
Regulatory Agencies: The ADA empowers the Department of Justice (DOJ) to enact specific regulations that will implement the broad goals of the ADA, and this is where the rubber really meets the road. For example, the ADA requires “places of public accommodation” like movie theaters to provide “effective communication,” but it’s the regulations that require those theaters to provide a specific number of caption-viewing devices and offer closed captioning for every digital movie distributed with captions.

Perhaps the most pressing issue confronting the regulators is likely to be website accessibility. Prior to the 2016 election, DOJ had indicated it intended to issue regulations defining accessible websites. In mid-2017, however, it abandoned that effort. The vacuum that situation created has not been satisfactory to anyone: businesses say they don’t know what they need to do, consumers aren’t getting the accessibility they want, and the number of website accessibility lawsuits continues to rise.

The business community tried to address this situation this past year by introducing legislation. The bill did one good thing; namely, it adopted a specific standard for assessing website accessibility. But the bill also erected a lot of unnecessary obstacles to our right to enforce the ADA.

This may be an area where compromise is possible. The business community makes valid arguments about the lack of specific standards. Also, websites are basically a way for a startup business to get off the ground, and there may be arguments both for a grace period and some sort of small-business exemption so that new businesses have a chance to get their financial feet under them before they need to address their websites. It’s possible that reasonable people on both sides – and there are some – could work together to develop joint recommendations, which is what eventually happened with movie captioning.

Congress: Sadly, disability rights have become another partisan issue in the last decade, with congressional Democrats supporting the disability community and Republicans supporting the business community. The bad news, from our point of view, is that this situation will likely rule out some of our “wish-list” items, such as curbs on the ubiquitous arbitration clauses that require the purchasers of all manner of goods and services to give up their rights to go to court and instead resolve disputes through private (and often costly) proceedings. Nor are we likely to see much clarity on exactly how far ADA goes to cover online-only businesses.

The good news, conversely, is that really bad things most likely can be prevented. Legislation passed the House of Representatives in 2018 that would have required anyone claiming an ADA violation to give advance notice to the business and give the business an opportunity to fix things before a lawsuit could be filed. While that sounds reasonable in theory, it would remove any incentive businesses may have to comply voluntarily; they could just wait until they got a letter of complaint. Staunch Democratic opposition in the Senate killed that effort, but a renewed threat is not out of the question.

Courts: While courts at all levels are becoming more conservative due to President Trump’s nominations, we haven’t really seen a lot of damaging disability-rights cases, at least not yet. However, the disability-rights bar is making a concerted effort to minimize the chances of any significant cases reaching the level of the Supreme Court.

Advocacy Updates
There are a couple of non-political items worth reporting. As many of you may know, a petition was circulated over the summer asking online meeting platforms to make captioning available at no cost. That petition was aimed largely at Zoom, because Google and Microsoft do offer free captioning, whereas Zoom only makes it available on its pay-for packages, a situation that struck many as being tantamount to asking people in wheelchairs to pay for the ramps they need to enter businesses.

Thinking that a legal “nudge” couldn’t hurt, John Waldo recently contacted Zoom and suggested that, in at least some jurisdictions, the law likely required Zoom to offer free captioning. Also, since the technology is already in place, it would apparently cost Zoom nothing to make captioning available on its free platforms. After a few back-and-forth exchanges, Zoom did say it would add captioning to its free platforms, but made no commitment about when that would happen. While there may be a certain amount of holding feet to the fire ahead of us, this looks like a happy outcome.

Finally, we reported last issue about a case in Seattle claiming that the nearly universal exclusion for hearing aids and examinations in health-insurance policies violates the prohibition on disability discrimination in the Affordable Care Act (i.e., Obamacare). John Waldo is now working with the Seattle attorneys as a sort of “subject-matter” expert to show that in practice, virtually everyone who has a hearing aid would qualify as having a “disability” within the meaning of the ADA, which the Obamacare regulations also use.

The defendants will file motions to dismiss the case again, arguing that even if everything we say is true, the law doesn’t require them to do what we claim. We expect the exchange of legal briefs and arguments to continue for well over a year.

Should we succeed, at least some coverage for hearing aids would be required in the insurance policies subject to the Obamacare regulations. That ruling would apply throughout the Ninth Circuit, which includes California as well as Washington, and might not apply elsewhere in the country. However, our suspicion is that the health-insurance companies drastically overestimate the likely cost of covering hearing aids, possibly because they look at the high numbers of people with hearing loss but fail to take into account how many of those people are actually on Medicare, and how few of the under-65 population with hearing loss use hearing aids. Our hope is that a favorable outcome would significantly expand insurance for hearing aids and related services.

John Waldo is an attorney in Houston TX whose practice focuses on advocacy for people with hearing loss. He is national Advocacy Committee Chair for the Association of Late Deafened Adults (ALDA), and consults with non-profit advocacy groups in Washington and Oregon. He can be reached at: [email protected]

Trevor Finneman is an attorney in Los Angeles CA. He specializes in employment discrimination and civil rights cases involving Deaf and Hard-of-Hearing people who have experienced discrimination. For more information on Trevor, please visit http://alfilaw.com. He may be reached at
[email protected]