From: gtrapp@abq.com
Subject: Documents in accessible formats
Dear Listers,
This subject has certainly generated some strong opinions.  I will try
 my best to clear the air and remove any confusion.  First, let me begin
by saying that I had what was probably the first adjudicated ADA
case on the issue of effective communications to blind persons.  The
case is described in an article titled Federationists Join in ADA
Lawsuit to Block Medicaid Cuts, and was in the December, 1992 Braille
Monitor.  I would encourage anyone interested in this subject to read
the article.  Basically, I argued that the state of New Mexico failed to
make the notice of a Medicaid cutback an effective communication to
blind persons, that the regulation itself was not placed in an
accessible formats such as braille and audio tape, and that the hearing
was inaccessible to persons who were deaf due to a lack of interpreters.
 I won the case, and the court ordered that the state rescind the cuts
 until the regulatory process was made accessible to persons with
disabilities.  Though the case was not a published decision except for
brief mention in the NDLR, it still had a national impact and caused
many states to address seriously the issue of effective communications
for blind persons.
I believe passionately in the rights of blind persons to receive
effective communications, and I have fought hard to bring it about.
Still, I am constrained by the regulations and guidelines which
interpret and implement the ADA.  The regulations and guidelines have
the force of law, and they cannot be wished away.  The Title II
guidelines are clear on the subject:
"The public entity must provide an opportunity for individuals with
disabilities to request the auxiliary aids and services of their choice.
 This expressed choice shall be given primary consideration by the
public entity (35.160(b)(2).  The public entity shall honor the choice
unless it can demonstrate that another effective means of communications
exists or that use of the means chosen would not be required under
35.164"
So, my friends, the answer to whether braille must be provided is the
traditional lawyer's answer: it depends.  If providing braille documents
would be an undue burden, than it would not be required.  If there
exists another effective means of communicating the information, then
braille need not be provided.  If I was the person making the request
for the document, then there would exist other effective means, such as
on computer disk.  If I was deaf-blind, than braille may be the only
effective means of communication.  The type of communication is also
important.  In my Medicaid case, the fact that the cutbacks would have
badly hurt many blind persons  made it more important that the
 information be communicated in an effective fashion.  I very frequently
represent persons who are deaf and who need interpreter services.  Their
situation may help illustrate the point.  Some persons who were born
deaf have difficulty communicating in written English, and use American
Sign Language as their primary and prefered means of communication.
This preference should be honored in cases where the person is receiving
communications from a doctor, lawyer, or accountant, and a sign language
interpreter should be provided.  However, if the person is going to the
store to buy food, writing notes would be an effective communications.
Indeed, I just settled a case involving the effective communication
requirement of Title I, where a business did not provide an interpreter
for a job interview.
Since this message is getting long, I will leave you with only a few
more thoughts.  Would the effective communication provision of Title II
require that all of the books in a public library be put in braille for
braille users and on tape for persons who do not read braille?  Would
the statutes of a state be required to be in braille and on tape?  For
you non-lawyers putting state statutes in braille could easily consume
hundreds of feet of shelf space.  As for me, I want to do what is
efficient, which means having computer access and access by readers.
I will leave you with one final thought, and this thought is perhaps the
most important.  We must take care to be sure that we do nothing to
weaken the ADA.  Right now, I believe that there is a good argument that
a person requesting  that he be provided bank statements in
braille is entitled to the braille under the ADA.  Indeed, many banks
already do this, and this fact would tend to show that doing so is
reasonable and not an undue burden.  However, a judge might be convinced
of the contrary, and issue a ruling that could be used to say that
braille is not required.  Also, making the case into a class action
might hurt the argument for  braille as placing 40 or so
statements in braille each month would be a much greater burden than
placing just a few in braille.
Well, kids, have we talked this issue to death?  If anybody wants, I'll
send them the ADA regs and guidelines as attached files.  The ADA speaks
for itself, and it clearly states that primary consideration should be
given, but this is not an absolute right to braille.
Greg D. Trapp
Staff Attorney
Protection & Advocacy System of New Mexico
Board Member
National Association of Blind Lawyers
to: int: blindlaw@NFBnet.org
cc: int: nfb-talk@NFBnet.org
    Int: gtrapp@abq.com
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