National Deaf Therapy, Hit with Abuse Allegations, Is Closing. A treatment center for Deaf people that was investigated and sued over abuse allegations

Insurance Journal
Negligence or Medical Negligence? Florida Supreme Court Offers Clarity
By Janice L. Merrill
June 6, 2018

Whether a claim arises out of medical negligence and is subject to the presuit screening requirements of Chapter 766 of the Florida Statutes is a question legal practitioners and courts alike have struggled with for years.

In April 2018, the Florida Supreme Court issued an opinion which provides clarity and guidance in making this determination.

Historically, to bring a medical negligence claim in Florida, potential plaintiffs have had to incur the expense of securing an affidavit from a qualified medical professional attesting to a deviation from the standard of care, under a two-year statute of limitations. Healthcare providers largely viewed this presuit screening requirement as an important safeguard in preventing non-meritorious claims.

However, because this process requires a significant expenditure, which can far exceed that of an ordinary negligence claim, many attorneys representing plaintiffs have been reluctant to classify a claim as a medical negligence claim. This allows them to avoid compliance with the presuit screening requirements and affords a four-year statute of limitations. Moreover, conflicting appellate court decisions as to when a claim arises out of the rendering or failure to render medical care and services has only muddied the waters.

The Florida Supreme Court was called on to determine when a negligence claim arises out of the “rendering of, or the failure to render, medical care or services” in the case of National Deaf Therapy, LLC v. Townes.

National Deaf Academy Resident Injured

In this case, a resident was injured during a restraint. The court said while the restraint was included as an intervention in the resident’s care plan, the restraint could be performed by any member of the staff. Although the resident was injured when a registered nurse performed the restraint, any member of the staff, including unlicensed staff such as a sign language interpreter trained on the restraint process, could have performed the restraint.

The court held that simply because a registered nurse performed the restraint, it did not turn the claim from an ordinary negligence claim into a medical negligence claim. The court contrasted these claims with one where an injury arose out of the application of excessive pressure while using mammographic equipment, which caused one of the claimant’s breast implants to rupture, and where a patient was injured while connected to physical therapy equipment. In each of those instances, the injury was sustained as a direct result of medical care, which required the use of professional judgment or skill.

The court held that for a claim to sound in medical malpractice, the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill. The key is whether the act is one which will require expert testimony as to the standard of care as opposed to the jurors determining through common experience whether the actor breached relevant standard of care.The inquiry for determining whether a claim sounds in medical negligence is two-fold and requires the court to determine (1) whether the action arose out of “medical…diagnosis, treatment, or care,” and (2) whether such diagnosis, treatment, or care was rendered by a healthcare provider (Silva v Southwest Florida Blood Bank, Inc.).

The injury must be a direct result of receiving medical care or treatment by a healthcare provider. As the Florida Supreme Court appropriately noted, merely because a wrongful act occurs in a medical setting does not mean that it involves medical malpractice.

Examples of National Deaf Therapy Negligence

Examples of acts which constitute ordinary negligence as opposed to medical negligence include:

A nurse practitioner spilling scalding hot tea on a patient who arrived at the hospital complaining of a cough, shortness of breath, bronchitis and nasal congestion. This is an ordinary negligence claim, as the act of serving hot tea did not amount to a medical service. There was no medical standard for the serving of hot tea, and thus the claimant was not required to comply with the presuit screening requirements.
A claim arising out of an injury sustained by a dialysis patient when a hospital employee inadvertently kicked the patient’s foot in an attempt to return the foot rest of the patient’s chair to the upright position. This is also an example of an ordinary negligence claim. The testimony of a medical expert as to how to return a chair to an upright position would not be required.
A further example of this is a psychiatric hospital employee’s decision not to separate patients resulting in a patient being punched in the face.
As a result of the Florida Supreme Court’s opinion in National Deaf Therapy, LLC v. Townes, claims that do not arise out of the act of providing medical services and do not involve the use of professional judgment and skill will be treated as ordinary negligence claims. These claims are subject to a four-year statute of limitations and do not require the claimant to incur the expense of obtaining an affidavit from a qualified medical expert attesting to a deviation from the standard of care and causation.

Malpractice

We can expect to see more plaintiff attorneys attempting to characterize claims which arise in a healthcare setting as ordinary negligence opposed to medical malpractice. This will require the defense team to scrutinize the claim carefully to determine whether the act giving rise to the claim truly sounds in ordinary negligence or whether it arises out of the rendering of, or the failure to render, medical care and services and involved the use of professional judgment or skill.

Reference:
https://www.insurancejournal.com/news/southeast/2018/06/06/491206.htm

https://www.nbcnews.com/news/investigations/mom-please-help-fbi-probing-alleged-abuse-deaf-autistic-kids-n193846

http://uhsbehindcloseddoors.org/item/national-deaf-academy/

https://law.justia.com/cases/florida/supreme-court/2018/sc16-1587.html

https://deafcounseling.com/purchase-of-national-deaf-academy/

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In 2016, an inmate in Corcoran, California, faced a dilemma. The parole board wanted to know whether he’d completed any self-help programs during his incarceration, a sign that he’d rehabilitated and could be trusted to go home. The inmate, whose name has been withheld for privacy reasons, said yes: At the Substance Abuse Treatment Facility (SATF), a state-run correctional center, he’d signed up for a group for people serving life sentences. The problem, he admitted, was that he was deaf, and his hearing impairment prevented him from understanding what went on during meetings. “I guess they’re waiting to get an interpreter for that group,” he explained to the board, referring to a sign language interpreter. “But I’ve been going,” he added. “I’m showing up.”

It wasn’t enough for the parole board, which denied him release. “I understand you have limitations,” one of the commissioners said, according to court documents. The commissioner scolded him for not participating in more programs. He would have to wait five years before applying for another hearing.

“With limited access to programs, deaf class members run the risk of serving longer prison sentences,” wrote attorneys at the Prison Law Office.
Under federal law, all prisons are required to provide qualified interpreters for deaf inmates to help them participate in education and self-help classes and communicate with guards. But at SATF, where most of California’s deaf inmates are housed, hard-of-hearing prisoners are regularly denied access to interpreters, according to recent court filings in a long-running disability rights case known as Armstrong v. Brown. “With limited access to programs, deaf class members run the risk of serving longer prison sentences,” wrote attorneys at the Prison Law Office in a statement filed with the court in May. Inmates say the facility has failed to offer interpreters for some Alcoholics and Narcotics Anonymous meetings, lifer groups, religious services, and educational and vocational programming.

In California, deaf inmates’ fight for equal rights stretches back decades. In the 1990s, the state corrections department admitted that deaf prisoners were generally expected to communicate through a combination of written notes, lip-reading, gesturing, and sometimes an informal staff or inmate interpreter. But as the corrections department acknowledged, even the best lip-readers can only understand a fraction of spoken words, and many people who rely on American Sign Language never learn to read or write English. “They are wholly different languages,” says Talila Lewis, director of the nonprofit group HEARD, which notes that ASL uses its own syntax and grammar, and that the average deaf prisoner’s reading comprehension is at about a second-grade level.

In a series of orders from 1996 to 2002, the US District Court for the Northern District of California ruled in Armstrong that the state’s treatment of prisoners with disabilities, including deaf inmates, violated the Americans with Disabilities Act. In 2013 the court found that while the situation had improved, SATF was still failing to provide interpreters at about a quarter of classes for which interpreters were needed—a level, Judge Claudia Wilken noted, that “simply does not constitute making a reasonable effort to comply with the court’s prior orders.” She told the facility to provide a qualified interpreter for any educational or vocational class that enrolled an inmate who communicated through sign language.

One inmate at SATF complained he was removed from an Alcohol Anonymous class without explanation after requesting an interpreter in 2016.
Five years later, that still hasn’t happened, the Prison Law Office told the court in its May filing. When deaf inmates try to enroll in programs, some believe they are rejected because of their special needs. One inmate at SATF complained he was removed from an Alcoholics Anonymous and Narcotics Anonymous class without explanation after requesting an interpreter in 2016. Another inmate in the building maintenance vocational program said he struggled to understand the instructor during conversations about safety and proper equipment. “Most of the time, no sign language interpreter is provided for the safety meetings, and he relies on an incarcerated person to attempt to finger spell the instructions,” the attorneys noted. They argue that the need for interpreters increased after California voters passed a ballot initiative in 2016 that allocated more funding for rehabilitation programs in prisons and gave inmates more opportunities to earn time off their sentences by participating in them.

The California Department of Corrections and Rehabilitation, which hired more full-time interpreters for SATF after the 2013 order, told the court in May that its use of staff interpreters, contract in-person interpreters, and video remote interpretation provided inmates with reasonable access to programs and complied with the Americans with Disabilities Act. “We are committed to ensuring hearing impaired inmates are provided equal access to program assignments and will continue to work to provide services to hearing impaired parolees,” a spokeswoman for the department told Mother Jones. The warden at SATF last month directed his staff to draft a new policy memo for sign language interpreters and to implement training, according to Prison Law Office attorney Rita Lomio. “I am cautiously optimistic,” she says, adding that if the situation does not improve soon, her office will consider whether to seek court intervention.

California, because of its size, has more deaf inmates requiring sign language interpreters than most other states—about 75 at SATF alone, according to the corrections department. And the fact that so many are clustered at one institution creates problems, according to prisoners rights advocates, because SATF is located in a remote part of California’s Central Valley, far from the biggest pools of interpreters in metropolitan areas like San Francisco and Los Angeles. “Not all of them want to drive two hours to go to a prison to translate when they could go to a school or hospital down the street from their home,” says Corene Kendrick, another attorney at the Prison Law Office.

Over the past few years, deaf inmates across the country have sued for better treatment and access to programs. In 2016, a deaf man in Washington, DC, was awarded $70,000 in damages after he was jailed for two months without an interpreter. Maryland, Kentucky, and South Carolina have also reached legal settlements to improve access to interpreter services in prisons. “Nearly all state prisons and the entire federal prison system are in violation of federal law with respect to providing [for] deaf and hard-of-hearing inmates and parolees,” writes Howard Rosenblum, CEO and director of legal services for the National Association of the Deaf.

“It’s the utmost violation of due process I can think of,” says attorney Gay Crosthwait Grunfield.
When deaf inmates leave the prison, some also struggle to access interpreters for parole meetings, especially if they live in remote areas. Between August and December 2017, for example, one deaf parolee in California allegedly did not have access to an interpreter for four out of five parole-mandated mental health appointments. He was soon rearrested, according to Gay Crosthwait Grunfeld, a partner at the law firm Rosen Bien Galvan & Grunfeld who argues the lack of interpretation services prevented him from fully taking advantage of his treatment program and may have contributed to his recidivism. “It’s the utmost violation of due process I can think of,” she says.

In the May filing, the California Department of Corrections and Rehabilitation argued interpretation services are not required for every parole encounter. The department’s attorneys wrote that the use of in-person interpreters could also present safety and security issues, though they did not elaborate. They noted that the parole division was exploring ways of providing interpretation services over cellphones or tablets, and that the corrections department was recently authorized to hire another interpreter at its headquarters to help parole officers in the field.

“We are not discounting how challenging it is,” says Grunfeld. “We are just saying we need to try harder.”

Reference:

https://www.motherjones.com/crime-justice/2018/06/without-interpreters-californias-deaf-prisoners-are-getting-stuck-behind-bars/

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The purpose of this position statement is to acknowledge and emphasize the importance and need for specialized sign language interpreting services in the delivery of mental health services to deaf individuals. While direct mental health services are optimal and always preferred, such services are not always available. When there are no direct mental health services, it is critical to ensure effective communication through specialized sign language interpreting services, which must be complete with sensitivity to cultural affiliation and awareness of the dynamics involved, in the delivery of mental health services to people who are deaf.[1] The National Association of the Deaf (NAD) wishes to use this platform to increase meaningful access to mental health services by elevating the knowledge, awareness, and sophistication with respect to use of sign language interpreting by mental health professionals, healthcare delivery systems, and deaf consumers. The sections below highlight critical information for mental health providers, interpreters and the deaf community to gain a comprehensive understanding of how to better serve and support deaf individuals.

Direct vs. Interpreted Mental Health Services

The NAD recommends that individuals who are deaf be referred to specially trained providers for direct mental health services (see NAD Position Statements on Mental Health Services) whenever possible and that appropriate support services, guided by consumer choice, be made available, if necessary. In situations where it is not possible to find a service provider who is able to provide direct mental health services, or because of consumer preference, the NAD strongly recommends that service providers work collaboratively with qualified sign language interpreters who have specialized mental health interpreting expertise.

The NAD urges mental health professionals, interpreters and the Deaf Community to recognize the unique challenges faced by mental health providers and interpreters working with deaf consumers in mental health settings and to be aware that there is a need for specialized training in order to meet those challenges. The mental health care field is broad and includes both deaf and hearing service providers in the areas of psychotherapy, psychiatry, counseling and social work, psychological testing, substance abuse treatment, forensic therapy, and more. Settings may range from a client’s home, private offices, hospitals and prison facilities.

According to the Registry of Interpreters for the Deaf’s (RID) Standard Practice Paper on Interpreting in Mental Health Settings, “Mental health professionals depend heavily on language form and content for diagnosis and treatment. Nuances in communication, including affective tone and subtleties of language structure, may be significant for diagnosis and treatment effectiveness.” (RID, 2007). While there is great variability in ability to recognition of mental health terms in English by hearing people, a reliable study exploring cultural and linguistic barriers to mental health service access found that deaf participants’ ability varied even more widely (Steinberg, Sullivan, & Lowe, 1998). In addition to understanding terminology specific to mental health settings, interpreters face complex interpersonal dynamics stemming from the symptoms of psychological disorders, diagnostic and treatment goals specific to various mental health settings, as well as the unique communication and therapeutic objectives of each member of the mental health treatment team.

Interpreters are encouraged to adhere to high standards of ethical practice (RID, 2007), which includes ensuring that they have appropriate training in mental health interpreting prior to accepting work in such settings. Interpreters need to be prepared for a variety of group dynamics including but not limited to: hearing clinicians working directly with deaf consumers; hearing clinicians working with deaf consumers and their hearing family members or partners; and deaf mental health professionals with various interpreting needs. These scenarios present their own challenges and complications (Hauser, Finch, & Hauser, 2008) and interpreters would benefit from training and preparation in order to be qualified for such jobs.

Credentials in Mental Health Interpreting

Though the RID lists standards of practice in mental health interpreting, as of early 2012, RID does not have any specialist certification for mental health interpreting.[2] There are several independent programs focusing on mental health interpreting, but there is no uniformity in those programs. The only known certification program that provides intensive training in mental health interpreting is offered through the Alabama Mental Health Interpreter Training. (Alabama Department of Mental Health Administrative Code, 2003; Crump, 2012).

Requirements of Mental Health Interpreters:

Intrapersonal Awareness
While mental health professionals are trained to deal with patients and situations that are emotionally charged, most interpreters are not. As such, interpreters working in the mental health setting must have keen intrapersonal skills in terms of strong awareness of biases and values, triggers, limitations, and potential for countertransference. The ability of the interpreter to self-manage and remain calm during a mental health interpreting assignment is paramount to a successful mental health session for the deaf consumer. Intrapersonal skills can be developed with training, supervision, and peer support, and such skills can guide decisions on accepting jobs in this field. A few aspects of the assignment to consider prior to accepting the job would be: culture, race, gender, religious affiliation, and sexual orientation.

Expertise in Language and Culture
In order to avoid misdiagnosis in deaf consumers, it is critical that interpreters not only have receptive and expressive fluency in American Sign Language, but are extensively trained in mental health techniques. Mental health interpreters must be familiar with and able to utilize different interpreting modalities. Furthermore, the interpreter must be prepared to educate providers on the possible need for longer sessions, the need for appropriate pausing during sessions, or changes in how questions are posed. Providers may rely on interpreters for cultural information. For optimal results, the interpreter’s communication with the service provider and the consumer prior to the first session is critical (Hamerdinger & Karlin, 2003).

Some deaf consumers, especially those with a lifetime experience of mental illness, may also have limited language or information deficits. This can make it much more difficult for a provider working through an interpreter to appropriately differentiate between such deficits and symptoms of mental illness. It is important to ensure that the interpreting process does not mask the language deficits of consumers as clinicians rely on accurate interpretation to make inferences about mental processes (Crump & Glickman, 2011).

Confidentiality & Professional Boundaries
Throughout the United States, limited resources often restrict options for interpreter services. Deaf consumers may encounter the same interpreters at general life events or appointments that were present for their mental health appointments. These encounters could create some conflicts or discomfort for both the individual and the interpreter. Maintaining confidentiality becomes even more crucial.

Confidentiality in mental health interpreting requires a level of discernment and critical thinking unique to this setting. The NAD-RID Code of Professional Conduct encourages interpreters to “share assignment-related information only on a confidential and ‘as-needed’ basis (e.g., supervisors, interpreter team members, members of the educational team, hiring entities)” (RID, 2005). While it is important for the interpreter to receive some information on what has been happening with a deaf consumer’s treatment, there must be strict protocols to maintain confidentiality. When communicating in writing, it is imperative that interpreters learn standards of such communication, be aware that such communication may become a part of the client’s official file and understand relevant confidentiality laws such as HIPAA and Federal Regulation 42 CFR, Part 2.

Ethics, Supervision & Peer Consultation
Mental health providers are expected to adhere to high standards of ethical practice.[3] In mental health work, there is higher risk for abuse of power, vicarious trauma, boundary crossings, and burnout. As such, providers are encouraged to engage in regular supervision and peer consultation. Interpreters working in such settings need to be held to the same standards and benefit from the opportunity to work with supervisors and/or consult with peers (Atwood, 1986; Fritsch-Rudser, 1986; Dean & Pollard, 2009, 2011; Keller, 2008; Hetherington, 2011; Anderson, 2011). In order to achieve higher standards of supervision in mental health interpreting, the NAD recommends building a pool of experienced interpreters who are qualified to perform supervision and are available to work with new mental health interpreters on a national level.

Qualified Mental Health Interpreters
The NAD recommends the following qualifications for interpreters working in mental health settings:

1. Fluency in American Sign Language;

2. Fluency in English and register choices;

3. Culturally competent;

4. Attending a comprehensive training curriculum for mental health interpreting

5. Mentoring with experienced mental health interpreters (at least 50 hours);

6. Individual or group supervision and peer consultation;

7. High standards of ethical practice; and

8. Knowledge of relevant ethical literature or decision-making models in interpreting.

The NAD recommends that a certification process for specialization in mental health interpreting be set up through nationally recognized means. Alternatively, a standardized portfolio system can be used to emphasize the individual’s specialization in mental health interpreting. It is also recommended that interpreters maintain their skills with continuing education in the area of mental health with every certification cycle (15 hours annually or 60 hours per four year RID certification maintenance program cycle). To achieve this, developing more options for seminars to meet the required 60 hours of continuing education in a four year period in the area of mental health is critical. In order to recruit more interpreters specializing in mental health interpreting, the interpreter training programs are encouraged to provide students at least one class focusing solely on mental health interpreting for a full quarter or semester to capture their interest in this specialization.

In summary, mental health interpreters are an important component in the mental health delivery system for deaf individuals with mental health needs, as they provide auxiliary services when a service provider is unable to deliver direct mental health services or when a deaf consumer requests it. While the field of mental health interpreting has aimed to set higher standards over the past decade, this position paper hopes to raise the standards by defining qualifications, expanding the credentials and requirements for mental health interpreters, as well as addressing the professional boundaries, ethics, supervision, and peer consultation in this profession.

References

Alabama Department of Mental Health. (2003). Chapter 580-3-24, Mental health interpreter standards. Retrieved from http://www.alabamaadministrativecode.state.al.us/docs/mhlth/3mhlth24.htm
Anderson, A. A. (2011). Peer Support and Consultation Project for Interpreters: A Model for Supporting the Well-Being of Interpreters who Practice in Mental Health Settings. Journal of Interpretation, 21(1), pp. 9-20.

Atwood, A. (1986). Clinical supervision as a method of providing behavioral feedback to sign language interpreters and students of interpreting. In M. L. McIntire (Ed.). New dimensions in interpreter education: Curriculum and instruction (pp. 87-93). Proceedings of the 6th national Convention of the Conference of Interpreter Trainers. Chevy Chase MD.

Crump. C. (2012). Mental Health Interpreting Training, Standards, and Certification. In K. Malcolm and L. A. Swabey (Eds.). In Our Hands: Educating Healthcare Interpreters. (pp. 54-76). Gallaudet University Press. Washington, D.C.

Crump, C. & Glickman, N. (2011). Mental Health Interpreting with Language Dysfluent Deaf Clients. Journal of Interpretation, 21(1), pp. 21-36.

Dean, R. K. & Pollard, R. Q. (2011). The importance, challenges, and outcomes of teaching context-based ethics in interpreting: A demand control schema perspective. Interpreter and Translator Trainer, 5(1), pp. 155-182.

Dean, R. K. & Pollard, R. Q. (2009, Fall). “I don’t think we’re supposed to be talking about this:” Case conferencing and supervision for interpreters. VIEWS, 26, pp. 28-30.

Fritsch-Rudser, S. (1986). The RID code of ethics, confidentiality and supervision. Journal of Interpretation, 3, pp. 47-51.

Hamerdinger, S., & Karlin, B. (2003). Therapy using interpreters: Questions on the use of interpreters in therapeutic settings for monolingual therapists. Journal of American Deafness and Rehabilitation Association, 36(3), pp. 12-30.

Hauser, P. C., Finch, K. L., and Hauser, A. B. (2008). Deaf Professionals and Designated Interpreters: A New Paradigm. Gallaudet University Press. Washington, D.C.

Hetherington, A. (2011). A Magical Profession? Causes and management of occupational stress in sign language interpreting profession. In L. Leeson, S. Wurm, M. Vermeerbergen (Eds.). Signed Language interpreting: Preparation, practice and performance (pp. 138-159). St. Jerome Publishing. Manchester, UK.

Keller, K. (2008). Demand-control schema: Applications for deaf interpreters. In L. Roberson & S. Shaw (Eds.).Proceedings of the 17th National Convention of the Conference of Interpreter Trainers: Putting the pieces together: A collaborative approach to excellence in education. (pp. 3-16). Conference of Interpreter Trainers. San Juan, PR.

Steinberg, A. G., Sullivan, V. J., and Loew, R. C. (1998). Cultural and Linguistic Barriers to Mental Health Service Access: The Deaf Consumer’s Perspective. American Journal of Psychiatry, 155(7), pp. 982-984.

Registry of Interpreters for the Deaf (RID). (2005). NAD-RID Code of Professional Conduct. Retrieved from http://rid.org/ethics/code-of-professional-conduct/

Registry of Interpreters for the Deaf (RID). (2007). Standard Practice Paper on Interpreting in Mental Health Settings. Retrieved from https://drive.google.com/file/d/0B3DKvZMflFLdWmFVV2tydVRFTHM/view

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Deaf Counseling Center (DCC), a counseling, life coaching and consulting practice based in Maryland, is celebrating 17 years of service to the Deaf community. DCC is the first Deaf-owned therapy business to incorporate a Deaf-centered philosophy and framework. It is also the first to offer videophone access to counseling, in addition to in-person sessions.

Headed by Clinical Psychology alum Dr. Candace A. McCullough, ’87, G-’91 & G-’03 and Mental Health Counseling alum Sharon M. Duchesneau, G-’93, DCC provides individual, couples and family counseling, life coaching and assessments to the Deaf community and its allies on a national basis. The 11-member (and growing) team of Deaf counselors includes Gallaudet alums Sheli Barber, ’92 & G-’95, Madeline Davis-Shelton, ‘76 and Scott Staubach, ’92.

To mark May Mental Health Awareness Month 2018, DCC is spotlighting the need to improve Deaf people’s access to mental health care. Through a nationwide campaign targeting health insurance companies, government agencies and health care providers, DCC aims to bring attention to the challenges and inequities Deaf people face when seeking mental health services.

To read more about DCC’s May campaign, go to www.deafcounseling.com or follow DCC on social media at Facebook (www.facebook.com/deafcounseling), Instagram (www.instagram.com/deafcounseling), Twitter (www.twitter.com/deafcounseling) and LinkedIn (http://www.linkedin.com/company/deafcounseling).

Reference:

https://my.gallaudet.edu/intranet/announcements-archive/dcc-celebrates-17-years-of-service-by-kicking-off-may-mental-health-awareness-month-campaign?fbclid=IwAR1wzSCRSvN0r9bIIhmEw9WjvJasvFxFyc0-cDUfubWitmlKvweYmNBM6-Y

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