Test-Prep Firm a Test Case for Disabilities Act : Encino: Becker CPA Review faces a federal suit on behalf of a deaf client. The outcome may define what accommodations are considered reasonable.

“Dear God, why did you honor me this way?” groans Newton Becker, recalling the words of the “Fiddler on the Roof” character Tevye. Like the fictional Jewish dairyman, Becker is struggling with a tough predicament. A federal lawsuit has made his obscure Encino firm, Becker CPA Review, a test case for the nascent Americans With Disabilities Act.

The Justice Department filed its first ADA suit against Becker in December, on behalf of Rod Jex, a Washington-area resident who is deaf. Justice attorneys allege that Becker’s firm, which helps clients nationwide prepare for the certified public accountant exams, discriminated against Jex by refusing his request for a sign language interpreter, thus violating Title III of the ADA.

“The Becker case will provide guidance to the rest of the country in complying with the ADA,” said Erica Jones, director of the Pacific Disability and Business Technical Center in San Francisco, a publicly funded agency that advises businesses about the ADA.

Indeed, Becker’s case is being followed closely by advocates for people with disabilities and scores of businesses. It is one of only two ADA suits filed so far by the federal government. In November, the Equal Employment Opportunity Commission, which enforces ADA’s employment section, sued AIC Security Investigations of Chicago for firing an employee, allegedly because of his medical condition. That case went to trial last week.

The law, which took effect in January, 1992, makes it illegal to discriminate on the basis of disability in employment, public accommodations and public services. Title III requires that operators of vocational or exam-preparation courses make their classes accessible to disabled people by supplying “appropriate auxiliary aids” such as interpreters. Companies are exempt if they can show that providing such services causes an “undue burden” or substantially alters their business.

Becker, 64, contends that he did not refuse to provide an interpreter for Jex. But he also believes interpreters are an unnecessary and costly expense. At an average rate of $40 an hour for a certified signer, it would cost Becker about $5,000 for a student to complete the 132-hour course--more than three times the cost of the course.

Becker CPA Review, which is private, is the nation’s largest CPA review course, each year preparing more than 10,000 students who pass the exam. That’s one-third of all those who pass the 2 1/2-day exam, said Becker, who founded the firm in 1957 and is its director.

Instead of interpreters, Becker said, he has provided transcripts for hearing-impaired students since 1987. And he argues that these are more effective than interpreters because most of his course is taught through audiocassettes. Until Jex, no one had asked for an interpreter, Becker asserted, and at least 10 hearing-impaired students have successfully taken his course without a signer.

“With ADA you’re supposed to make ‘reasonable modifications,’ ” Becker said, citing the language in the law.

Since the suit, Becker has hired an interpreter for Jex, who is taking the course in preparation for the exam in May. But the suit, filed in federal court in Washington, is still likely to go to trial because government officials are seeking damages and a fine of up to $50,000. Becker said he’s writing a new policy that states he will offer interpreters. But as to paying damages and a fine, he vowed, “I’ll never settle to that.”

Because of his company’s size, Becker said, hiring an interpreter for one student isn’t an undue burden. Yet Becker hopes that if his case goes to trial, guidance will be given on what is an “appropriate auxiliary aid.”

But that question isn’t an easy one.

Michael Newkirk, who has been deaf since the age of 2, took Becker’s course in Cleveland two years ago. Newkirk, 34, did not ask for an interpreter. He passed all parts of the exam last November and is currently working as an accountant for a utility firm.

“No, no, no!” he said in a phone interview from his home in Mentor, Ohio, with his wife relaying the questions. “It’s not the interpreter. Becker provided everything I needed. The key to passing is doing the homework.”

At the same time, Newkirk said, “Every hearing-impaired person is different.”

So far, business groups have criticized the Justice Department for what they believe was overzealous enforcement of the vague law, because Becker said he was given less than a month to comply. And Becker’s attorney, Burton Fishman of Baltimore, claims that the company contacted the Justice Department on Christmas Eve--the deadline set by the government--to say that Becker would hire an interpreter for Jex. “But they said, ‘Tough,’ and raised the ante” by seeking damages, said Fishman.

Justice Department officials declined to comment on the record about the case. But government sources said the department filed the suit quickly to force Becker to immediately provide Jex with an interpreter for the January class.

Jex, a 27-year-old accountant, said he believes Becker would not have provided him with an interpreter had the Justice Department not stepped in. “Having an interpreter in this class is a real benefit for me,” he said in a telephone interview through the California Relay Service for deaf people.

Very few businesses that provide review courses for exams or vocational training offer interpreters for hearing-impaired students or readers for people who are blind, according to a spot-check of a dozen such firms in Southern California. An exception, however, is the New York-based Stanley Kaplan Educational Center, the nation’s largest test-preparation company.

Fred Danzig, Kaplan’s vice president, said his firm has long had a policy of providing a signer for hearing-impaired students upon request. “That’s a terrible thing for a company to do,” Danzig said of Becker’s alleged refusal to provide an interpreter.

Yet like Becker, most companies don’t have policies on special needs of disabled people.

Sam Person, co-founder of Person/Wolinsky Associates Inc., a New York-based rival of Becker’s, offered one reason that few firms have a policy regarding signers. “I’ve had over 125,000 students since 1967, and to my knowledge we’ve never had a request for an interpreter.”

Advocates for disabled people, however, believe many hearing-impaired people do ask for such services but are often denied them by field staff, who don’t bring the matter up to senior management. “And some probably didn’t ask because they knew they wouldn’t get one,” said Ken Kresse, legal director at the California Center on Law and the Deaf in Oakland.

No one knows how many hearing-impaired people are studying to be accountants, lawyers or other professionals that require licensure. But what is clear is that, like people with other disabilities, the more than 12 million deaf and hearing-impaired people of working age in the United States are less likely to have steady full-time jobs than those without disabilities.

In California, for example, only 6% of about 133,000 active lawyers have disabilities, said Gail C. Kaplan, a West Los Angeles lawyer specializing in employment discrimination. Kaplan, who has multiple sclerosis and uses a wheelchair, said that when she enrolled in a law-exam review course several years ago, she didn’t ask for special assistance. “I didn’t think I could get anything,” she said.

But Kaplan and others believe that with the ADA, more people with disabilities will seek out interpreters and other aids. Already, there is evidence this is happening.

The Justice Department says it has received about 900 complaints related to the ADA’s public access law. About 600 are related to architectural barriers or a lack of access to restrooms and other facilities. But about 200 of them have to do with not getting auxiliary aids.

Suzanne Rosen, a San Francisco resident who was born deaf, filed one of those complaints earlier this month. Rosen, 25, graduated from UCLA Law School last May. Several months later she enrolled in a course with Barbri Bar Review, the country’s largest preparer for state bar exams. Rosen said she asked for an interpreter but was denied one by Barbri, which, like Becker, provided her with transcripts instead.

Rosen took the course anyway after the California Department of Vocational Rehabilitation agreed to pick up the $10,000 tab for Rosen’s two translators. (Two are often needed for long assignments so that signers can take breaks.)

“Without an interpreter, I would have been deprived of interactive questions,” said Rosen, who took the bar exam last month. If everything is in the notes, she asked, why are there teachers?

But Brian Sacks, Barbri’s western region director, said he spent more than $10,000 to have his lecture notes transcribed for hearing-impaired students. “The notes are identical to the lecture,” he said. “To me, there’s no disadvantage in them.”

Like Becker, Sacks said that providing an interpreter for one or two students a year probably wouldn’t be an “undue burden for us.”

But an increasing number of hearing-impaired students are attending law school, Sacks said, and if every one requires an interpreter, “that’s going to force a lot of small companies out of business, or it will probably increase costs for everybody.

“Our policy is to accommodate every student,” he added. “But the cost of an interpreter is very, very high.

“It’s a real dilemma. . . . The law said ‘reasonable accommodations.’ But what’s reasonable, and for whom?”