Guidance for DHH Administrators -Interpreter Rules

After several attempted contacts, I finally received a phone call from Dan Levy from the Department of Civil Rights. We discussed how, when we met in April as a group of administrators to hear Dan (and Annie from DODHH) speak, there was no indication that interpreters would have to register as under-qualified interpreters to DODHH. He admitted that this might appear to be a change and explained it this way:

Although we may not have used the word "register" we did indicate we would be providing them with a card indicating they have the 3.5-3/9 score and are eligible to work as substitutes, and that we would (eventually) list them on MOIS. We can't do either unless people register.

The "Acknowledgment of Responsibility" was created by the Division after that meeting and thus could be called a change, but that it does not change the basic process, it only makes it transparent. (See below.)

Two specific examples we spoke of when I asked if there is anything specifically I can share with administrators that he would like them to know...

Dan said he was very concerned when he fielded a call yesterday where a district chose not to hire an interpreter with a 3.7 because they did not meet the 4.0, and therefore were not qualified. He wanted to state, again,that the district has the obligation to hire the best interpreter they can find ... Itis well understood that not all positions can be filled by 4.0+ interpreters, and having a

3.7 is what should happen rather than having no interpreter at all.

I had told Dan that I fielded a question from a district where a 3.3 interpreter was the best option they could find - what should they do? He said to hire the 3.3 interpreter. This 3.3 interpreter creates the same situation as a 3.7, except that the district does not have the option of whether to apply for and Exception or not because the only officially recognizes 3.5 and above.

Dan also followed-up in writing with some specifics that might be helpful for you to discuss with your teams in order to determine how you would like to proceed as individual districts:

1. The rules do NOT REQUIRE that a school ask for an Exception, nor is it always even possible for them to do so. Whenever a school cannot provide a fully qualified interpreter it must determine what the best available option is. If a parent later complains, the school will need to be able to prove that they did everything possible to find a fully qualified interpreter before looking at other options and that the option chosen was the best one available. The Exception is an opportunity for the school to hire a substitute educational interpret on a full time basis, and have the Division pre-determine that the school followed the necessary process. If the parent complains, the school will not have to prove it again, and the burden will be on the parent to show that the accommodation provided was not effective and the school did not do anything after being made aware. Thus the Exception is a voluntary process a school can use to minimize its future exposure.

2. The term "waiver"only applies to a document in which the school would provide a list of available options to a parent, and by choosing one option the parent would be waiving any right to complain that the others were not provided. No waiver can ever be valid if it purports to waive something that the school is not actually offering.

3. The "Acknowledgement of Responsibility"is also not mandatory. It was created in response to complaints by interpreters that they did not feel they could accept job offers (initially unrelated to schools) without putting their certification at risk. An interpreter is not permitted to provide their services in a setting for which s/he is not fully qualified unless they are the best available option to allow effective communication to take place. However, an interpreter is not in a position to know what other options were considered, or whether a fully qualified interpreter would have been available. Therefore, before they accept the position it is there responsibility to ensure that all parties to the communication(s) that will take place are aware of the interpreter's actual qualifications AND that someone has made the decision that this is the best option. The Acknowledgment is a way that the interpreter can meet their legal obligation by identifying the person or entity that made the determination of who to employ.

4. A district therefore is NOT REQUIRED to file any paperwork with the Division in order to hire a less than fully qualified interpreter. It may hire whoever they choose. However, if a student's parents file a complaint, the district will be required to prove they provided the accommodation that would achieve the most effective communication possible. This is fundamentally NO DIFFERENT than it was last year (and since ADA/PWDCRA were adopted) What the Rules changed was that going forward, whenever a complaint is investigated or litigated, a fully qualified interpreter is presumed to meet this requirement, and every other possibility is presumed not to unless the school can prove it was the best option available. The district has always had this same legal obligation, the Administrative Rules do not change it, they only create and define situations where the school is legally presumed to have met its obligation and thus need not defend its determination.

5. It is important that schools understand that there are two types of interpreter agency services (most agencies do only one or the other,but it is possible for them to provide both.) - A district can employ an agency that will provide the most qualified interpreter that the agency has in its pool. In this type of contract or agreement, if the agency cannot provide a fully qualified interpreter, the district still has the legal obligation to timely seek a fully qualified interpreter who does not work with that agency. -A district can also utilize and agency that agrees to fully accept the districts legal obligations to provide the appropriate accommodation. With this type of contract/relationship, when the agency does not employ the appropriate interpreter, the agency is responsible for timely seeking to locate an independent interpreter, or even one with another agency. It is critical a district understands which service it is being provided because in the past there have been many occasions where a district 'assumed' it was meeting its legal obligations by making a single phone call to the agency, but neither entity was looking at options outside the one particular agency. In these situations, finds out too later that it is liable for any failure to accommodate because failed to meet its legal burden to pursue all reasonable possibilities for providing the required accommodation.

In my conversation with Dan, he assured me that the Division has no intention to come looking after districts. The statements he made in April are the same today. On September 11th, the Department of Civil Rights released a memo explaining this to districts.