Policy and Litigation Strategies for Pandemic Challenges

HOWARD ROSENBLUM: It is now 11:00. I think we'll give a few more seconds to see if we have any additional attendees. 

We have the magic number of 30. That means we can begin! Thank you, everybody, for attending our workshop today, the first of the day, and thank you for choosing us. If you wish to have captions, you can click "live transcript" or caption to be bottom to have access to the livestream captioning. With that, I would like to get started. You can see this slide, Policy and Litigation Strategies for Pandemic Challenges. 
Through the National Association of the Deaf Law and Advocacy Center. 

We are going to take a moment to introduce ourselves. I'm Howard Rosenblum. I'm the CEO and director of Legal Services at the National Association of the Deaf Law Center. My apologies! 
And the white -- I'm a white balding man with glasses and a nice suit jacket and tie, at least I think it's nice, and there's a bookcase and a lot of artwork behind me, and it would take a long time to describe it all, so I'll be passing to Marc. 

MARC CHARMATZ: Hello, my name is Marc Charmatz. My claim to fame is I've been married a long time, so this is my 50-year of marriage. My 45th year at the National Association of the Deaf. It's been an honor every year for both. And I thank you for the opportunity to participate in this important program. 
Oh, by the way. I always wear my NAD shirt. I have a collection of NAD shirts over the time. I never throw one away. Some of I can't fit in anymore! But they're all here. One day I'm going to make a collage of NAD shirts! 


ZAINAB ALKEBSI: Hello, everybody. I'll give a visual description. I'm an Arab American woman, light-skinned with curly black hair about shoulder length. I do wear glasses. I have -- you can't actually tell in the camera, but it is sort of a gold shirt with a black jacket over it. I'm in my home office with a blue background behind me. My name is Zainab Alkebsi. My pronouns are she/her/hers. I'm policy counsel for the National Association of the Deaf. And welcome, everybody, to this session! 

ANNA BITENCOURT: Hello, everyone. I'm a Deaf Brazilian Latina with brown curly hair. Glasses, a black shirt. I have a plain white background. I'm Anna Bitencourt. I'm using American Sign Language, and the interpreter is interpreting for me. I am an attorney at the National Association of the Deaf. I work with litigation, and also I'm the director of legal intake. Welcome, everybody! 


BRITTANY SHRADER: Good morning. I am a white woman with brown wavy hair. I'm wearing a black sweater over a black and gold top. And I have some floral curtains and other things in my background. I'm wearing glasses today. My name is Brittany Shrader. I am one of the litigators at the National Association of the Deaf. I am using my voice today to make it a little bit easier on our panel interpreters, so thank you to all of our interpreters here! And I am excited for our presentation. Thank you all for joining us. 


LEAH WIEDERHORN: Good morning, everyone. My name is Leah Wiederhorn. I am a white woman with long blond hair. I'm wearing a dark gray jacket over a light gray top. Behind me are white walls, some shelves, and a plant. I am also a litigator at the National Association of the Deaf. I am very much looking forward to our presentation today. Thank you for coming! 

HOWARD ROSENBLUM: With that, we will begin our presentation, and we will start with Anna. 

ANNA BITENCOURT: So, as I mentioned before, I have two roles at the National Association of the Deaf. I'm director of legal intake, and in that role, I see the intakes that come in to the National Association of the Deaf. We receive about 1300 to 1400 intakes per year, which is approximately 100 intakes a month. At the start of the pandemic, we were averaging 300 intakes a month. So that tripled the size of intakes that we typically see. We were extremely busy at that time. A large percentage of those were complaints or concerns on the pandemic's impact on individuals who are Deaf and hard of hearing. Our focus then shifted to creating resources and materials to be able to address the issues that Deaf and hard of hearing people were experiencing as a result of the pandemic, such as barriers to communication because of mask mandates, access to health care, access to legal proceedings, in employment, and educational settings as well. So we created new position statements and advocacy letters. All of that information can be found on our website at nad.org/coronavirus. And we can add that link to the chat for your ease of access. 

Zainab will be talking more about our position statements a bit later in the presentation -- thank you, Zainab, for adding the website address in the chat. 

So as I mentioned, the pandemic had an extreme impact on the lives of Deaf and hard of hearing people. We chose some priority areas where we focused, and those were the ones that we saw the largest impact. One was hospitals and medical access. Courts, remote hearings and trials. Employment, related to telework. And education, which included universities and schools. 

The largest themes that we saw with those areas were the shift to remote work. Or virtual settings. 
Many platforms that were used for virtual or remote access to these types of services were not accessible for individuals who are Deaf and hard of hearing. They wouldn't allow interpreters to be seen readily. Closed captioning features were not embedded, or they were difficult to use. Many people use ASR, which is automatic speech recognition, for the captioning, which are historically known as non-accurate. 

Some patient issues that were experienced was that ASL interpreters weren't able to come onsite due to the coronavirus. There was a limitation to the number of people who could be in the hospital or in the patient's room at the time. 

So hospitals switched to the provision of video remote interpreting solely, and video remote interpreting is a platform that is used if you can't have an onsite interpreter. So myself as a Deaf person would be in the hospital as a patient. The hospital has a tablet or a computer screen, and the interpreter pops up on that screen to provide interpreting services. 

So just like any technology, there could be network issues, freezing, difficulties with audio or visual projections. So if a Deaf individual is immobile, and can't see the screen, move to see the screen, or they have an issue with their neck, they can't access that. Or if an individual is Deaf and blind, and they rely on tactile interpreting, that cannot be done through video remote interpreting. So as you can imagine, the impact on Deaf and hard of hearing patients and not being able to have access to an on-site ASL or tactile interpreter was quite severe. 

Also, physicians moved to telehealth during coronavirus, and as I mentioned before, the platforms that were used are either would not allow an interpreter to be present in the meeting, or there was no closed captioning. 

So as a person who relies on those accommodations, the patient wouldn't be able to communicate with their physician in a telehealth setting. 

For court situations, hearings and trials were moved to remote platforms, and a frequent issue with the court is that they rely on video relay service, or VRS, for the provision of interpretation. If you don't know what that is, video relay service is like having an operator. So I as a Deaf person can make or receive a telephone call, and there is a VRS interpreter who pops up on the screen and relays the conversation. It is different than with video re mote  interpreting platform that I mentioned earlier. The problem with video relay service interpretation is you randomly receive the interpreter you get, so the interpreter you receive on those calls might not always be qualified for the situation at hand, or is unable to meet the unique communication needs of the Deaf person. 

So, if you can imagine, the court using video relay service for a trial or a hearing, the interpreter could potentially not be qualified for court settings, and then interpreting in these very sensitive and potentially severely impactful decisions for Deaf people. We encouraged courts to make sure that prescreening was done for interpreters so that qualified interpreters could be provided in these settings. 

In employment settings, many of you have experienced this shift to remote work or telework. Video conferencing platforms are often used to meet with colleagues or employers. Many Deaf employees had to advocate for the platforms that were most accessible for them, and for those individuals who didn't use interpreters at work, because they could get along just fine face to face, had to switch to reliance on an accommodation in a video platform. 

So telework was a totally different ballgame compared to in-person communication needs. 

And then for people who didn't switch to telework, who still had to go to work in a physical space, mask mandates made it very difficult for Deaf and hard of hearing individuals to communicate. There are clear masks available, but there were issues with them not being comfortable, them fogging, or having a glare. And at times, clear masks were available, but the individuals, coworkers, or employers didn't want to wear it because it wasn't as protective, they preferred to wear an N95 mask or the like. 

Also, for people who are hard of hearing, masks muffle the auditory sounds of speech, so it was difficult for them to understand communication. 

In educational settings, universities and school settings, there were also these similar types of issues with communication. 

And now, Zainab will talk about the resources and materials that we created at the NAD to try to address these challenges that I just explained. 

ZAINAB ALKEBSI: Thank you, Anna. This is Zainab speaking. First, I will read the slide for those of you who need that access. It says "COVID-19 position statements", with several bullet points: Communicating with hospital staff. Telehealth. Accessible pre-K- 12 remote education. Remote employment "with matrix" in parentheses, and finally, communication with masks, also telehealth and telework law review. As Anna explained, thank you for doing so, the beginning of the pandemic was obviously a global disruption, and there were many services that were just lacking and not yet present. So to address these issues that we were being made aware of, the policy institute developed five position statements within a few months. And to give you some context on this, our typical timeline for a position statement is about one year. So from content development, drafting, revision, publication. So it's about one year. So we did five within just a few short months. That obviously was a very, very busy time for us! 

Now, of course, the NAD didn't develop these position statements in a vacuum. We collaborated with other Deaf and hard of hearing advocacy organizations, all who bring slightly different perspectives or lens to the work. And outside consultants, Deaf experts. 

The five topics were the ones that I just read, so there was communicating with medical/hospital staff, telehealth, accessible preK-12 remote education, remote employment. When we published the remote employment one, that was actually simultaneously published with the matrix. And that explained what the accessibility features of all of the extant platforms were at that time. And finally, communicating with masks. 
And they make recommendations on best practices to address some of the issues that Anna just outlined. All of these position papers can be found on our website. I just shared the link earlier, and that is the same link to use for these position statements. 

They were written with the knowledge that we had at that time. -- thank you, Howard, Howard has just re posted that link for you all. Obviously, things have changed. Platforms have introduced new accessibility features. Mask policies and expectations are changing and evolving and so forth. 

So we actually are in the process of updating these position statements. Again, with the help and consultation of the outside experts. And we are hoping to re-release them soon. And there is a plan as well to create new position statements as well. We have more in the pipeline. 

The last bullet point is that I co-authored a law review article. I'll share that link in the chat as well. And that article presents an analysis of the legal and technical landscape of remote health care and workplace accessibility for Deaf and hard of hearing people in a pandemic virtual world. 
With that, I'll turn it over to our next presenter. Next slide, please. 

HOWARD ROSENBLUM: Thank you, Anna and Zainab. I'll go ahead and read this slide. The title is "50 state governors' briefings", and the bullet points are: Advocacy with community. 48 states -- quick results. Two problematic states: New York and Florida. And then the final bullet point is ranking project on governors. 

In sum, when the pandemic hit, in March of 2020, Deaf and hard of hearing individuals were completely lost. They didn't have access to information. Typically we're the last to know, because word of mouth spreads auditorily. And we don't have access to that information. 

In the beginning of the pandemic, most of the information was received from White House briefings and also state governors' briefings. In the beginning, there was no American Sign Language access. There was some captioning access. But television rules for captioning of live news are iffy. 

There are rules for the top 25 markets, so live captioning must be provided in those markets. But for the remaining United States markets, there are no rules of that sort in terms of mandated live captioning. Many Deaf and hard of hearing individuals might not be fluent in English in order to access the information completely with captions. So American Sign Language is the best way. 

So understanding safety and health concerns, mask mandates, and then later, vaccinations, all that information being briefed on a daily basis through the news, often by the governors of each state, were not accessible to Deaf people who rely on American Sign Language for communication. 

So we mobilized an effort to each state governor. The NAD has state association affiliates in all states and in Washington, DC, with the exception of Wyoming, which we're working on. So those of you who live in Wyoming, we're happy to work with you and set up a state chapter affiliate! 

The -- ones we contacted the governors, within a week of the start of the briefings, interpreters were provided. Typically through picture-in-picture. So the response was rapid. So 48 states and DC responded quite rapidly, except for New York and Florida. Governor Cuomo is a Democrat, and he said, we don't need American Sign Language because we're providing captions, and that's sufficient. The Republican governor in Florida, DeSantis, did not feel it was necessary to provide American Sign Language interpreters. But the governor in Florida said he would provide American Sign Language interpreters only when he was in Tallahassee, but in the in any other areas of the state. And we'll talk about those issues next in our presentation. 

But we decided, in that effort, we wanted to evaluate the response, and how each governor did when we mobilized to let them know of this need. So now I'd like to turn it over to Zainab. Thank you, Howard, this is Zainab speaking. So like you mentioned, we decided to come up with a ranking of governors in all 50 states with respect to how each of them handled the issue of interpreter access during the official state government COVID-19 press briefings. Specifically we're going to cover whether or not the interpreters were provided in the first place and what the visibility of the ASL interpreter was. For those things that were within the governor's office's control, not the TV situations -- that's a different issue, and we have a slide specific to that issue. But there are factors within the governor's office's controls. For example, lighting. The size of the window, picture-in-picture window. And the impact of other visual aids, like if they're showing a PowerPoint, those sorts of issues. 

And the goal with this ranking is to recognize those states that handled it really well, all of these factors. And thereby hopefully create opportunities to work with the other states that need more improvement. To that end, along with the ranking that will be published, we are also going to publish a paper on recommended best practices, and our hope is that states will incorporate those protocols into any press briefing going forward. So we hope to be uploading that soon to our website, so keep that bookmarked. 
And we have more rankings in the pipeline as well. 

With that, we can go to the next slide, and Marc is going to -- or is it Marc or is it Howard? About the New York lawsuit. 

HOWARD ROSENBLUM: Actually, it's me, Zainab! I'm going to read the next slide "lawsuits for ASL access". 

So historically we have mandates for captioning on television, and the Rehab Act Section 504 and the ADA talk about the requirement for government agencies to provide American Sign Language access. But that tends to be for in-person events, if you were to go to a government agency, or you go to a conference hosted by the governor, the provision of American Sign Language is mandated. We've noticed over the years, though, with television, for national disasters such as hurricanes, tornados, or floods, many mayors, counties, and governors will have an American Sign Language interpreter standing with them on the stage during their briefings. That led to a more robust use of American Sign Language during the pandemic. And as I mentioned before, 48 governors were all on board for providing American Sign Language interpreters. The two states I mentioned, and also the White House, did not provide American Sign Language interpreting, either accurately or at all. So Disability Rights New York was the first to file a lawsuit on the premise that American Sign Language is required for access to information on the coronavirus. The lawsuit was against the New York governor, Governor Cuomo, and they won. 

That set a new paradigm for American Sign Language access. So, thank you, Disability Rights New York, for your work! 

The result of the lawsuit was that Governor Cuomo -- he typically has a video feed that his office creates with him, and then the interpreter on the screen, and also a PowerPoint. And that is what was sent to the television networks so that it could be carried that way on television, or streaming. 

Other governors tend to allow the networks to bring their cameras in, and they can broadcast whatever they want. So, often an interpreter will be present, but the networks decide not to show the interpreter. Which is a difficulty that we have seen. So with that, I'd like to turn it over to Marc, who's going to talk about the lawsuit against the White House. 

MARC CHARMATZ: Hi! I'm a very proud NAD member and employee. And I want to thank all the NAD lawyers for all the hard work that they've done during the pandemic. 

I got my job in 1977, because I told the CEO of the NAD I want to file complaints. And when I did that, that's why I think I was hired! And I couldn't think of a more important complaint in 46 years than the case called NAD v Trump. It was important on many, many respects, and I'll discuss them in a couple minutes. 

There's a preliminary injunction order out there from a judge in the DC federal court, and that's -- that really says it all. When you get a preliminary injunction, you have to show four things. You have to show substantial likelihood of success on the merits. You have to show irreparable harm. The defendant gets a chance to show how it is harmed if an injunction would be issued. And you have to show the public interest. 

In our case, the key to victory was the fact that we found that the White House has regulations pursuant to Section 504 of the Rehabilitation Act, which prohibit discrimination in federally conducted programs, meaning White House programs. That really was the lynchpin for the lawsuit. DOJ represented the White House. And they were in a rather difficult position to say that ASL interpreters were not required for this case, when in fact DOJ obviously has Title II ADA, Title III ADA regulations, and 504 regulations -- and the 504 DOJ regulations are really very, very good! 

And so they were in a rock and a hard place of trying to defend on the merits. And so what they did is they shifted to the first part, the first prong. They said that we didn't have a likelihood of success on the merits. Because there was no implied private right of action under Section 504 with respect to federally conducted programs. Now, NAD had the first lawsuit that found there was a private right of action with respect to federally assisted programs. So we had a history here about this issue. 

And, of course, in this instance, the White House was acting as the discriminating party, not as some regulatory agency. And that's what DOJ hung its hat on. And that's... that was most of the litigation. We prevailed, because when a federal agency acts as a discriminating party, there is an implied private right of action, and so we met that first test. And we also met the second prong, because we had affidavits from Deaf individuals who said how important it was, critical, to have ASL interpretation for all that was going on during the emergencies, and all that was taking place, literally every day, on new stuff -- vaccines and health issues, and masks, and all the things that we all know about. 

And, of course, I don't think that the DOJ or the White House could make an argument that they would be harmed by doing this. 

And finally, and very important, this was certainly in the public interest to do it! 
And so we received that preliminary injunction, and we got ASL interpreters. And I'm very proud of that decision. 

I have three takeaways from that. In no... well, maybe some order. One of them is that when we litigate these cases, the NAD litigated a lot on our own. But in this instance, and really, it makes me feel good, we had co-counsel -- Arnold and Porter. I'm laying it right out. They did a terrific job. They put partners, associates, paralegals, all sorts of folks to litigate this case. And we worked together. And this isn't one of those instances where one of us did something without the other's approval or agreement. We worked together. I don't know if that happens all the time. Sometimes, you know, people take over, they want to do it their way. Sometimes they don't listen to everybody else. Here, we all had an opportunity to offer an opinion. We all had an opportunity to discuss these difficult legal issues. And I must say, Arnold and Porter stepped up, and I want to single them for good work, outstanding work that they did. And it's nice to see that the megafirms, as I call them, did this. And they deserve a lot of credit. 

The second point I would make, when I think of the takeaways I have, is, a long time ago, I litigated a case against a prison in Maryland, on behalf of a Deaf prisoner. It was the first case against a prison system. And we had, at those times, we had to bring our own interpreter to the court for a hearing on a consent decree. And the judge asked me to, you know, ask questions to the interpreter. I asked the interpreter your name, your occupation, your license. And then I stopped. The judge went after me. He says "that's all you got in this?? That's the way you handle the qualifications of an expert?" And I said yes. And he said "let me show you how to do it". And he asked the interpreter, I don't know, half an hour's worth of questions. Why do I tell you this? The judge, who was well-known in Maryland, he was the chief judge at the time, I think he had a familiar member who was a sign language interpreter, and I think, if not a family member, a friend. And at the time, in Baltimore, the lack... the morning news at 7:25 and 7:55 and 8:25 and 8:55 was -- they put an interpreter in a bubble for that 5 minutes of news. And I think -- I might be wrong, I've tried to check this out and I couldn't find it -- I think the judge's family member was that interpreter! So he knew all about interpreters. And if 40 years ago, we could put an interpreter in a bubble, as I call it, and have the news live with no captions -- remember, there were no captions in the 1980s kind of time -- that should show that we should be able to do that today. 

My third takeaway, then I'll keep quiet, is that this was really important to Deaf people. It was important for sign language. This was something that added legitimacy -- the White House, the top of the line, if they're not accessible, where else could you go? 

And so I was so pleased to see that the White House, the president of the United States, was now accessible to ALL Americans, or at least to Deaf and hard of hearing Americans, when that was not the case for so long a period of time. 

And as we all know, the state of the union was... they had interpreters there as well. That was the first time, under President Biden. 

I think the last thing I'll say is, what's left? To me, what's left is I want to see an interpreter on ABC and CNN and all the other stations that we look at, rather than any other mechanism or other way of doing it. 
I don't know if we can achieve that result, but I hope we can. 

Thank you very much. I am going to turn this over to Leah, and I certainly enjoyed our talk today. 

LEAH WIEDERHORN: Thank you, Marc. So, I'm going to discuss, and it is a current and ongoing case against Governor DeSantis, the governor of Florida. Unlike the NAD Trump case and the Disability Rights New York case against Cuomo, we have not had the quick success and the orders that we wished for in this case. And I think I'm going to discuss just briefly why I think that is, and how we are continuing to pursue that case. 

The case name is Yelapi v DeSantis. Currently we have 6 individual plaintiffs and Disability Rights Florida as an organization as a plaintiff. Disability Rights Florida -- thank you, Zainab, for putting that, thank you, in the chat. I can also provide the case number when I have a moment. 

Disability Rights Florida came to us with this case, and we started co-counseling with them early on. This is a case that they wanted to bring against the governor for the reasons that Howard articulated at the beginning of this section, in that Governor DeSantis was giving a number of press briefings on the pandemic, he was traveling around the state of Florida while giving these press briefings, and the Deaf residents of Florida did not have access to those briefings, those Deaf residents who relied on ASL, because there was no interpreter. 

One of the main issues that we dealt with very early on in the case, and something that Marc closed with, and that Howard also mentioned, is the provision of interpreters on mainstream networks. The judge in this case, when deciding our preliminary injunction request, felt that we did not have a sufficient showing that the injury, the lack of interpreters, would be redressed by ordering just the governor to provide one. And the judge thought that we didn't have a sufficient showing of injury because the judge could not order ABC, NBC, these TV networks, to air the interpreter even if the governor was ordered to provide one. 

That, you know, for the lawyers out there, is a standing issue. It was about the redressability of our injury, and it was a concern that the judge was clearly very concerned about. So we regrouped after we read that order, and decided to include as a defendant the Florida Channel. The Florida Channel is run by Florida State University. So it is a state actor, and subject to Title II, and it also receives federal funds, making it subject to Section 504 of the Rehabilitation Act. 

So we included the Florida Channel so that we could address the redressability concerns and survive a standing challenge. 

Another one of the issues that we dealt with in this case, which I don't think is particular to the pandemic, it's something I think we deal with throughout Deaf advocacy cases, is educating the judge and educating defendants on the difference between what is considered to be effective communication and what, I think, we would consider to be good-enough communication. 

The judge... entertained the defendant's argument that here, we again couldn't show a real injury because even though there wasn't an ASL interpreter during the press briefings, our plaintiffs were able to gather the information that the governor disseminated during these briefings through other means, whether that was through talking to family members or reading the papers, or getting an e-mail blast from their local Deaf organization. Because they were able to eventually get that information, maybe 24 hours later, maybe 48 hours later, they weren't injured here by the lack of an ASL interpreter. So that is something that we are also dealing with in this case, is to show what under Title II is required in terms of effective communication. That it is not enough to be able to gather the information yourself when you aren't having the same type of access that hearing individuals have to the governor's press briefings. 

So that said, we also are partnered with Arnold and Porter on this case. They came in, I would say, about a year into the litigation, which we feel fortunate, and Disability Rights Florida, like I said, is our co-counsel, and together, we're hoping to pursue this. So hoping we get a positive outcome, and that Governor DeSantis starts providing ASL interpreters. 

I will end on just a note that one of the arguments that the governor raised is an 11th Amendment immunity argument. The governor says that the state of Florida did not waive its sovereign immunity and was not subject to Title II of the ADA. The... we are not pursuing damages in this case, so we relied on ex parte Young, which is very long-standing Supreme Court precedent which says that you can sue individual state actors for injunctive relief, and that overcomes any sovereign immunity claims. So we did not have to deal with a sovereign immunity claim if we had been pursuing damages. But I do think it is worth flagging that that is an argument that the state of Florida made here, that they are not subject to this federal law. And it looks like something that they would like to pursue in terms of litigation. So, thank you, and I think now I'll turn it back over to Zainab. 

ZAINAB ALKEBSI: Thank you, Leah. This is Zainab presenting. 

Howard mentioned this earlier, during his part, but often, even when the governor's office maybe did everything right, in terms of the factors we talked about, the lighting and so forth, for their own feed, it was sometimes the case that the TV stations had a separate feed that they were using, and they failed to show the interpreter in their broadcasts. 

Some of the issues included zooming in too close to the governor, so, even though the interpreter might have been standing just a few feet off to the side, they were cut off. Sometimes we saw a piece of the interpreter's body on the side of that view. Or if they were using the picture-in-picture technology, it was obscured by the station logo or the news crawl, or maybe other visuals that were used. 

So, legislation is sorely needed in this area, and as Marc mentioned earlier, we want to see ASL on the TV channel, not just on the online stream. Not everybody has access to the internet. And that was an issue in the Yelapi case in Florida, that you can't tell somebody to rely on the internet if they don't have it. It should be present on the TV station. 

So we are working on draft legislation with a variety of offices that would instruct the FCC, the Federal Communications Commission, to develop objective standards for the display of ASL interpreters, similar to what has been developed for captioning, and more on that to come. So we're still in the process of drafting that legislation, and we are garnering support. We do see a lot of support in the community from Congress and so forth, so stay tuned. 

Let's go ahead to the next slide, and with that, I will turn it over to Brittany. 

BRITTANY SHRADER: Hi, everyone. I'm Brittany, again. I'm going to first read through our slide, and then go through it. This slide is entitled "communication access with incarcerated people". And there are several bullet points, the first being no access to information about COVID, the second being no access to information about vaccines, the third being masks hindering communication, and the fourth is difficulties for attorneys to communicate with their clients who are incarcerated, and the last being prison litigation challenges with respect to client preparation and depositions and things like that. 

So, we have a lot packed into this slide! I'm going to go through it pretty quickly, just because of time constraints, so we will have an opportunity for questions later. If you have any additional questions. 
But Anna mentioned earlier that COVID really hit the Deaf population in terms of communication at large, and that impact was even more severe for people who are incarcerated. Access to information about COVID in the carceral system was limited to begin with. But for people who are Deaf and hard of hearing, that information access was almost nonexistent, at least at the outset. There was, in most of the carceral systems, no ASL interpretation of information about COVID, meaning that most of the incarcerated folks didn't know anything about COVID, didn't know how to keep themselves safe, particularly in the communal setting that is the carceral system, where everyone is in close proximity. Even the basic information at the outset about, you know, washing hands more frequently, the precautions to take when you have different symptoms, none of that information was readily available to Deaf folks who were incarcerated. 

And a number of agencies sent demand letters to prisons across the country in terms of getting accessible information about COVID to Deaf and hard of hearing people. And, of course, we know that there was this concern about bringing in in-person interpreters into the prison setting during the time of COVID, which created even more barriers to getting accessible information out there. But even information that played on the television screens, on, you know , a repeat basis, didn't include things like captioning. And for a lot of the incarcerated folks, captioning was just not enough, particularly, as Leah, Marc, and Howard have all talked about, for this high-stakes information, where we really need access in, for sign language users, in their predominant language. 

So that was kind of the first hurdle that we encountered in terms of the incarcerated folks, was just their lack of access to any information about COVID. 

And even word of mouth, obviously, wasn't accessible to our guys. 

And as the pandemic, you know, went along, and vaccinations became available, the same barrier to access of information popped up. We saw prisons essentially, rather than bringing in sign language interpretation to share information about vaccinations, when our ASL users would ask for information, they would just mark them down as declining the vaccine. 

And -- (scoff) -- this led to a lot of our Deaf and hard of hearing people being marked down as declined to be vaccinated, simply because they wanted information about what the vaccinations were. 
And that's still something that, you know, is an issue that is being tackled, I think, in the carceral system across the country. 

In addition, you know, we have this issue of masks. And most of the prison systems aren't utilizing the clear masks that Anna referred to earlier, that at least provide SOME visibility of the lips, though Anna mentioned there are a lot of concerns with the clear masks in terms of the fogging, the glare, and even just the efficacy of the clear masks. 

But for the most part, in the carceral setting, you're seeing these opaque black masks being worn by staff members and by other, you know, people in the system. And so the little bit of information that our incarcerated guys had access to by attempting to lipread and communicate, you know, by gesture and in some way through speech was severely crippled. 

We saw a rise in people, you know, getting into trouble for noncompliance simply because they didn't even know they were being spoken to! So that's yet another barrier that our guys are facing in the carceral system. 

And as attorneys representing people who are incarcerated, we ran into trouble in communicating and having access to our clients. The kind of video visitation system was overrun with use by the courts. They were utilizing this video technology for people to appear remotely for court access, which was given priority. So attorneys attempting to communicate with and visit with their clients were having trouble getting access, getting time to speak to their clients. So I think that also kind of compounded these other issues we were talking about in terms of other access, because they didn't have access to their attorneys. And, of course, all of these remote, just the remote nature of the practice right now presented a lot of barriers in terms of getting things ready in litigation -- preparing clients for depositions, the depositions themselves, what did they look like in this virtual setting? Particularly when we talk about clients who utilize sign language as their primary mode of communication. And thinking about things like exhibits and how does that work when you're wanting to access someone about a document, and the attorney taking the deposition wants to use a share screen function, which blocks out the client's ability to see the interpreter? 

So these were issues that we found we needed to really work with our clients to prepare them. Obviously, try to work with opposing counsel to come up with an agreement about how some of these things would be handled, but depending on who your opposing counsel is, sometimes that is NOT the easiest thing to do! Sometimes they aren't going to get it until they see it, and you do, we have run into these issues where counsel insists on putting a document up on the screen. And, you know, how do you prepare your clients for that? What do you talk to your clients about in advance that they should do and they shouldn't do in terms of when, you know, this document is taking up the entire screen, and they really can't see the interpreter? Or they can only see one of the interpreters, right, and they really need to be able to see the Deaf interpreter, but they can't. 

So how to address those issues. And one of the things we found to be the most effective is to really just talk to your clients about saying "I can't see the interpreter", and not responding to anything else until the obstruction is removed, right? Because if your client tries to engage with the questions that the attorney is asking, and they try to see the interpreter, to try to figure out what that question is, you've already lost, right? You've already lost the issue of, you know, this is an obstruction to my client's ability to communicate during this deposition, you need to remove it. Because the attorney is going to feel like, well, you're trying to answer my question, obviously you're getting something out of the communication. 

So, just really talking to your clients about advocating in a way for themselves and saying, like, I'm sorry, I can't see the interpreter. Until I can see the interpreter, there's nothing I can do. 

The other huge barrier that we've run into is, and I think this was mentioned earlier, the availability of different platforms, particularly in terms of people who are incarcerated. A lot of the prisons rely on the WebEx platform, which I'm sure most of you are familiar with, is really not accessible for Deaf people. The WebEx platform tends to follow sound. It tends, when your bandwidth is not high enough, to block out the cameras of those people who aren't speaking, where there's no sound. So when you're using a visual form of communication, and we ran into this issue often with our clients who are incarcerated, the videos of the signers would be blocked out! So you would see, perhaps, the only person on screen you would be able to see would be a hearing attorney who is using their voice, who didn't understand sign language, and our client wouldn't be able to see any of the interpreters. So the communication would be completely blocked because the client couldn't have access to that visual communication. We know that the video technology has improved vastly during the pandemic, which has created a better space, virtual space for access for Deaf and hard of hearing clients. But utilizing some of these platforms that the prisons have in place have prevented easy or seamless communication. And I'm cognizant of the time, so I'm going to turn it over. If there's any questions later, I'll be happy to field those. 

HOWARD ROSENBLUM: Thank you, Brittany. This is our last slide, then we'll open things up for questions. I'll read this slide. The title is "advocacy with government agencies", with four bullet points: Agencies sharing information and implementing programs without communication access. CDC information about COVID not available in ASL for months. HHS, or Health and Human Services, oversees telehealth, but no standards are in place for communication access. They're in development, but they haven't been established. And then finally, the FCC, who oversees telecom, and other services that needed to adapt to the pandemic. 
I will speak to the first two bullet points, and then I will turn it over to my co-presenter for the final two. 
At the beginning of the pandemic, many government agencies were trying to figure out how to share information on what to do, how to make sure that they were getting help, information on applying for loans and funding, like the PPP loans. So there were so many things that were happening around that March 2020 time frame. And almost none of that was accessible through American Sign Language. We had to reach out and remind individuals that their programs and their announcements had to be accessible in sign language. So for testing programs and vaccination programs, the information and explanation on what to do was not accessible. 

We also had a lot of confusing information towards the beginning of the pandemic about what coronavirus actually was. So there were daily announcements and briefings that varied information. So it was difficult to find the current information, particularly when we were reaching out for American Sign Language access, but there were delays. 

And then in May or June, we were finding that the information that we were receiving was good, but at that time, it was outdated. 

Another issue was having an American Sign Language interpreter on site, but without checking in with the Deaf and hard of hearing community to make sure that that person was adequately meeting their needs, was visible, and that they had access to the information. 
So we had to take steps to make sure that there was consultation on how to hire an appropriate interpreter to get this type of information out. 

And even when we were sending those messages out, we were on a daily basis having to put out fires with people interpreting -- hiring interpreters that were not appropriate for the audience. 

So we had to talk with agencies about how to ensure that their information was being disseminated accurately, with American Sign Language, through an interpreter that could meet the needs, and that Deaf and hard of hearing individuals were at the table to talk about communication access. 

These are emergencies. We have to be proactive. We can't wait until the emergency is upon us. 
So we've come together to talk about strategies for the future, and this pandemic helped us be aware of gaps in the system. 

So now I'd like to turn it over to Zainab. 

ZAINAB ALKEBSI: Thank you, Howard. This is Zainab presenting. I'm happy to wrap up our final slide with our last two bullet points. 

So HHS, Health and Human Services, one of the government agencies, has jurisdiction over telehealth. . But currently, the accessibility of telehealth platforms is not regulated. There are no mandates or expectations. They are currently working with FCC, with FEMA, as a task force to figure out those logistics, and we continue to be engaged in dialogues and prep meetings with them. 

And the final bullet point, the FCC, the Federal Communications Commission, they have jurisdiction over  telecommunications, and the NAD files comments with them often, but this time it was concerning the quality of VRS, video relay services, as Anna explained earlier, has declined in recent years, but particularly during the pandemic. There's been a lower rate of pay, an incredible surge of demand for this remote interpretation work, and a shortage of interpreters nationwide. And we've been expressing those concerns to the FCC. I serve on the FCC's Disability Advisory Committee, the DAC, and we submit communications about lessons learned regarding communication access during the pandemic. Another set of recommendations also touched on the identification of emerging technologies and accessibility opportunities and challenges. Both of those are on the website, and I will go ahead and drop the link in the chat for those committee recommendations. 

That is our final bullet point. So now we turn it over to you as the audience for the Q&A session, and I invite all my co-presenters to come back on screen. 

HOWARD ROSENBLUM: So we are open for questions. You can either type your question in the chat, or you can pop up on screen. Whatever you prefer. Don't be shy! 

You can also use the raise hand tool. 

ZAINAB ALKEBSI: I think people might be ready for lunch! 

I'm going to actually stop sharing the slide. 

ZAINAB ALKEBSI: Howard, do you see Amy's question in the chat? 

HOWARD ROSENBLUM: Sure, let's go forward. 

Go ahead, Amy Robertson. What's your question? 

AMY: Hi, this is Amy Robertson. I was going to try to type, but I talk faster than I type! 

We are getting more and more requests to rely entirely on ASR rather than CART, rather than human, uh... typists, or... sorry, I was just looking at the chat. Rather than to rely on human transcriptionists, remote CART, we are being asked to agree -- and this is the subject of some of current negotiations -- to agree to auto-generated captions, on the theory that the quality is now sufficient that it is at least equivalent to the error rate of human transcriptionists. And I would be very interested to know NAD's position on that. Thank you very much, and thanks for a great presentation. 

HOWARD ROSENBLUM: Thank you, Amy. I'll start, and then I'll ask my colleagues to chime in. So, we have done some litigation in terms of access to state legislation. So, two states so far -- Oklahoma and Florida -- and we know of other states that have been going through similar things. In the beginning, we asked for live human CART writers or transcriptionists. And the argument has been that ASR is comparable or exceeds the quality of human transcriptionists. I actually disagree. You can see what the captioning looks like now, as we have a live captioner. And if you were to compare that to the in-platform ASR, it's not comparable. 
So our approach lately has been to focus more on the mandate as to the certain level of quality, instead of how the captions are created. So the future is coming, and we're going to be in a place where we have automatic captioning that is perfect. We're not there yet. But it's coming down the pike. So instead of working against that, we're focusing on any agreement that requires X percent of accuracy. And I'd like Zainab to talk a little bit more about the problems of measuring captioning accuracy. Zainab? 

ZAINAB ALKEBSI: I'd be happy to. So, not all errors are created equally. So, what do I mean by that?

There can be a missing word, and that seems like a minor error, but that word might be negating the sentence, which then completely changes the meaning of the sentence, absent that negation. So evaluation has to be based on impact rather than sort of a count error rate. You know, "let's eat, comma, grandma", absent the comma, brings us into the land of cannibalism! And I don't think we want to visit there. There. 
So I think we need to evaluate quality in terms of impact rather than counting errors. 

Gallaudet University is engaged currently in a study to determine the best method, approaches, methodologies, for such an evaluation, to figure out what kinds of errors are important, not important, etc., and it's a five year project, and in 2023, we're going to get some preliminary results, but obviously the pandemic has messed with their timeline a little bit. This is going to be a few more years. But the point is, the hope is to incorporate the results of that research into recommendations that we can make to the FCC. And the FCC, then, would be encouraged to develop measurable standards. Right now it's very vague. The benchmarks for captioning are not really where they need to be. The standards are for TV captioning. But even so, we only have the area of accuracy, the area of completeness, the area of timeliness or synchronicity, and placement. And no one is really talking about what accuracy means, it just has to be accurate. Well, what does that mean? So we've been on them to get more measurable tenets for that. But that will hopefully become the standard for captioning, for any captioning, however it is created, in any context. So that's where we are with the captioning discussion and research. It's a great question, Amy. Thank you for that. Howard, anything you need to add? 

HOWARD ROSENBLUM: I'd like to actually open it up to the team. Anna? 

ANNA BITENCOURT: I wanted to add another problem that I have seen happen quite frequently. So our presentation is all about the problems that we've seen. We have seen solutions as well. But with ASR, some of the negotiations that I've seen, for example, or, like workout programs, where they want to add captioning, but they want to use ASR, which is not accurate, they're happy to have someone review the ASR-created transcript, and then edit it. Which for a workout program, that seems like a fine, acceptable solution. But for universities, it takes time for the editing process, for the transcript to be fixed, and then the student is behind in their classes because they're not getting the information in a timely manner. 

So they don't have it for studying or testing purposes. So that's something that we have seen in negotiations that entities are trying to incorporate. 

HOWARD ROSENBLUM: Then we have a question from John, I believe. Or hand raised from John. 

JOHN: Hi, this is John Waldo. Can you all hear me now? 
Okay, great. A couple of questions. There was talk about the difficulties that masks... the problems masks impose for all of us. Have you guys come up with a good solution yet? I mean, we thought that clear masks were going to be our salvation, but for a number of reasons, that hasn't worked out nearly as well as we had hoped it would. 

So that's the first question. Any thoughts on that? 

HOWARD ROSENBLUM: I wouldn't say that clear masks are a failure in toto. They are a band-aid solution while people are mandated to wear masks. So there's some accessibility improvements with them. But yourself included, I mean, many Deaf and hard of hearing people have to adapt, and they're doing so by using technologies. There are phone apps that allow for ASR on the spot. They're not exactly accurate, but they're good enough for everyday living and access. People have turned to writing handwritten notes. And we include that in our mask wearing position statement, how you communicate with a person who is Deaf and hard of hearing in the workplace or just any place that you encounter in your daily life. 

The clear masks are not perfect, but they're better than opaque masks. Does any of my team want to add anything to that? 

ZAINAB ALKEBSI: This is Zainab. I'll just add to the many good points that Howard has made. When we started writing the position statement, we found ourselves in a conundrum of sorts, in that we wanted to make a -- for example, there were people who wanted face shields, so they're clear generally and cover the whole face. But again, as I mentioned, we were working with outside Deaf experts. And some of those Deaf experts were physicians, who indicated that the research does not support the safety of the face shield as much as we would have loved the concept for it. You can see the whole entire face, it's clear. But it's actually not as safe as the N95 masks. So that was kind of a sticking point for us that we had to kind of figure out. 
And also the comfort level of people wearing masks. I think there are some that are quite uncomfortable, and some people felt that their face went numb after a while. So we just tried to describe what was out there, what the formal responsibilities were, you know, for example, in a workplace, if you got masks, make them available to all of your employees, etc. And as I said, we are in the process of updating those position statements as new knowledge -- 

We'll put them out there when updates are available in terms of the masks. There are different branded names and there are different preferences amongst those, and the technologies that can assist with communication in the presence of a masked interlocutor. I mean, I will say that masks have been the bane of our existence for Deaf and hard of hearing people during the pandemic! Of course, when they're no longer necessary, they'll be wonderful, but it's a life-saving piece of equipment, obviously, so we need to adapt to that during the period. 

HOWARD ROSENBLUM: I'm seeing another question, but John, did you have a follow-up? 

JOHN: Yeah, I was just going to observe that -- I shouldn't have suggested that clear masks were a failure, but I was trying to suggest that they were not a one size fits all silver bullet that works for all of us all the time. Which we may have hoped might be the case. And I think what I hear Howard and everybody else saying is, you know, it ain't a perfect world for us, and we have to do the best we can under the circumstances, which are different from time to time. 

The other thing I was going to ask, and this is just a question, really, you talked about the problem of telehealth. If telehealth comes from doctor's offices, why aren't they covered under Title III of the ADA, since the doctor's office would be covered when it's in its physical location? This would be a service of a place of public accommodation. Would it not? And why doesn't that require accessibility, just under Title III? 

HOWARD ROSENBLUM: So in thinking about the answer, I think the problem is that the doctors themselves are clearly under Title III, but they're contracting with a telehealth provider, and by extension, they're liable, but really, the doctor would be sued for using inaccessible technology. 

The easiest path is to look at a systems change. So, HHS, FEMA, and FCC have announced that platforms must have A, B, C as part of the accessibility plan, to make sure that all platforms used for telehealth are accessible. But the problem was that telehealth prior to the pandemic had been only scantly used. So there wasn't a big discussion about the issues until the full-blown transition. And then the issues and concerns with telehealth platforms were made brilliantly clear, and there were no standards in place to mandate accessibility. So that's where the problem -- it became a reactive response, versus a proactive. So as we're going after the platforms, I think it might be a bit hard to gain a standing on litigating a third party. We believe the better path is a system change through standardization of settings and features in those types of platforms. 

ZAINAB ALKEBSI: This is Zainab. Just to add to that, the law review that I talked about in the presentation and linked in the chat also goes into more depth about what we're talking about, just as an FYI. 

HOWARD ROSENBLUM: I see Kevin, Kevin Williams? 
Kevin, I see that you typed the question, but then you said you might want to just ask it out. Whatever your preference is. 

KEVIN: Like Amy, I talk a heck of a lot faster than I type, and as a quadriplegic, I type with one stick, so you get what you get, a lot of crap, like bad captioning! 
Thanks for a good presentation, you've all been great. But we have discovered we have a great state legislature right now that's helping us do all kinds of things that we've not been able to do before. 
I don't see an easy avenue for correcting problems like an example that I can think of is, I keep the captioning on my TV on -- I don't need it, but I keep it on, just because. I'm so used to my Deaf clients needing captioning, or something else, usually an ASL sign language interpreter. The captioning is horrible on anything live. It's just horrible! It's behind. They leave out names, they leave out words and so forth and so on. And I know the captioners are trying, but it's not good. And so I'm wondering if any of you have any thoughts about what can be done -- oh, the other thing is -- and we've discussed this, I think, we all know this -- that for many of our Deaf clients, many folks who are Deaf, we've had expert witnesses who have submitted reports about their ability to read. And it's not great. So, captioning is just not really an option anyway. 

So is there anything that can be done at a state level when you've got a fantastically friendly state legislate to address any of these issues, for example, regarding an ASL interpreter on a local newscast? Thank you. 



There's a question in the chat, Kevin, to you, asking which state legislature is this? Want to know who the fantastically friendly state legislature is. If you don't mind appeals -- if you don't mind answering 

KEVIN: I'm happy to share it's Colorado. We have a governor and houses who all belong to a particular party, and they're just passing bills. We've never passed more positive legislation on behalf of all organization than we are doing now. Now we've just got to get the drafters to get their... STUFF together, to be able to put things in the right places and fix what we tried to fix the last time! And the Colorado Revised Statutes -- others on the call can attest -- are the biggest jumble of -- they contradict each other, and the courts are completely confused over, you know. So, anyway, we're working hard. But we've got a really friendly state legislature. I just don't see how you can fix these problems without dealing with them through, like, the FCC or some federal agency. I don't see. And then you'd have different states doing different things, which, of course, would create problems. But is there an avenue? Has anyone explored that? Is there any information about it? Again, thanks for your great presentation. It's good to see some of you that I know. Thanks. 

ZAINAB ALKEBSI: Okay, great. This is Zainab speaking. Thank you, Kevin. And, Amy says Colorado for the win! So that's great. Thank you for the question. It's a great question. I think that because there is, at this time, there are no federal standards for mandates in terms of the ASL interpretation, there's nothing preventing states from enacting their own requirements at the state level. So that's certainly a possibility. As long as it doesn't conflict with any extant federal legislation, obviously. So as I mentioned, we are in the process of pushing legislation on the federal level, but as we all know, Congress right now is pretty stuck in terms of what they're able to accomplish, and how, and when, and if this legislation actually will go forward is... we always are hopeful. We do see support from lots of members. But, Congress also has other priorities right now, and there are a lot of conflicts. So this is not on their priority list. 

So in the absence of that, or sort of meanwhile, a lot of work happens on the federal level, but we absolutely encourage people at the state level to do what they can do. The only issue is, as you suggested, Kevin, that there would be such disparate outcomes, it would be nice to have one kind of federal standard. But in the meantime, this is a long path ahead of us, we know that, to get the federal process moving. And I think it's a great idea, if you have a friendly legislature, and the NAD would be in support. 

HOWARD ROSENBLUM: So in speaking of American Sign Language interpreter provision, I think that that's the great path. States can push the issue,. But with captioning, that is a bigger challenge. We've seen some states that are tired of not getting live captionists for their television news, particularly at the 25 -- except for the 25 top markets, they're not able to get live captioners for their live local news. So they're looking at the possibility of state-level laws that mandate live captioning. But what's not clear is if that will conflict with the federal law that's already established. There are standards for live local news captioning in place at the federal level. So if the states then are going to add to the language of that federal law, or if they come up with a new law that will be trumped by the federal law. So that's something that we're in discussion with the FCC on, because we're not sure where they stand on this. 

We do encourage states to test that, however, to see whether or not their established mandates or laws will work. 

ZAINAB ALKEBSI: This is Zainab. Just adding, right, the difference between the ASL provision and the captioning, and we are talking to the FCC and we're hoping we're going to get some guidance from the FCC. One of the states did reach out with some, you know, willingness to kind of move forward and see what would happen, and the FCC is looking to the possibility of issuing some guidance. But again, we're not sure when that might be. 

HOWARD ROSENBLUM: And I see that we've reached our time limit for our presentation. 
So we would like to thank everybody for attending today, this last hour and a half presentation. I also want to thank my team, my wonderful NAD legal team! We'll continue our efforts to ensure full accessibility. If you have any questions on any of the issues we discussed, please feel free to contact us. We are always available. Thank you all for attending! 

Now you can go eat lunch! Enjoy.