The Disability Law & Policy e-Newsletter
An electronic publication of
The Law, Health Policy & Disability Center at the
University of Iowa College of Law
http://disability.law.uiowa.edu/
and
The Burton Blatt Institute at Syracuse University
http://bbi.syr.edu
February 6, 2012
Volume 9, Issue 1
The Disability Law & Policy Newsletter is a monthly publication that aims to inform disability advocates, scholars, and service providers of the most current issues in disability law, policy, research, best practices, and breaking news.
Dear Colleague:
Below is a topical overview of the items presented in this issue.
A. CIVIL RIGHTS: Americans with Disabilities Act (ADA), Sections
504 & 508 of the Rehabilitation Act, and state civil rights law
B. EDUCATION: Special education & youth transition to
successful postsecondary outcomes
C. TECHNOLOGY / TELECOMMUNICATIONS: Assistive, information,
and communication technologies
D. HEALTHCARE / BENEFITS: Social Security Income / Social Security Disability
Income / Medicaid & Medicare
E. WORKFORCE: Workforce Investment Act (WIA), Ticket to Work
and Work Incentives Improvement Act (TWWIIA), & Vocational Rehabilitation
F. INDEPENDENCE: News for and about the Independent Living
Movement
G. EMERGENCY RESPONSE / PREPAREDNESS: Disaster mitigation and preparedness news
H. INTERNATIONAL: News for and about disability topics
outside the U.S.
I. MISCELLANEOUS: News and topics may vary
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A. CIVIL RIGHTS
1. Donald Galloway, Advocate of Rights of Disabled, Dies at 73
Donald Galloway, a prominent advocate for the civil rights of individuals with disabilities, died on October 3, 2011 at the age of 73 in Santa Barbara, California. Galloway had metastatic prostate cancer at the time of his death. Galloway, who was legally blind since a childhood accident, won a landmark disability lawsuit asserting the right of blind individuals to serve as jurors. In the 1991 case, Mr. Galloway responded to a D.C. Superior Court jury summons by arriving at court only to be turned away. When he was told that a blind person could not observe the demeanor of a witness and read the evidence, he sued the District government. He asserted that he didn't need to see evidence to evaluate it, pointing out, "I don't have to see a gun. I could feel the gun or have someone describe it to me. They are making the assumption that I can't perceive or make judgments." The U.S. District Court ruled that blind people could not be automatically excluded from a jury, and exclusion could only be proper on a case by case basis, for example if the case required jurors to evaluate many documents.
Mr. Galloway worked as disability rights advocate throughout his life. In the mid-1970s, he worked in Berkeley, California, as director of peer counseling at the Center for Independent Living. Later, Mr. Galloway became executive director of the Governor's Council on the Handicapped in Denver, and from 1978 to 1980, director of Peace Corps in Jamaica. He later directed the Center for Independent Living in Washington. In 2009 he retired from the D.C. Department of Consumer and Regulatory Affairs as program coordinator for the Americans with Disabilities Act. He joined that department after serving from 1987 to 1998 as manager of the disability affairs branch of the D.C. Department of Housing and Community Development. Mr. Galloway served on numerous panels regarding disability rights and spent the last 15 years as president of the National Federation of the Blind's Washington affiliate.
Full Story: Adam Bernstein, Donald Galloway, Advocate of Rights of Disabled, Dies at 73, Nov. 1, 2011, available at
http://www.washingtonpost.com/local/obituaries/donald-galloway-advocate-of-rights-of-disabled-dies-at-73/2011/10/31/gIQAl93MdM_story.html
2. Puerto Rico Ends Legal Battle over Disability
On November 3, 2011, local justice officials announced that Puerto Rico has reached an agreement with the United States government, ending a 12-year-long legal battle to improve the island's health system for individuals with mental health disabilities. According to federal officials, Puerto Rico abused and neglected hundreds of people with mental health disabilities by failing to provide food, medication, adequate housing, therapy, and mental health care. According to Justice Secretary Guillermo, it is the oldest legal case in Puerto Rico, and it came about as a result of more than 1,300 court orders. The island closed four of its six residential treatment centers and will attempt to relocate the last 18 patients to new community homes, according to Health Secretary Lorenzo Gonzalez.
The litigation began in 1997 when the parents of a child with a mental health disability submitted a complaint with the U.S. Department of Justice, which filed suit in 1999 after a two-year investigation. Since then, Puerto Rico's health department has grown from 300 to more than 500 employees, from a budget of $3 million to $40 million, and has built 52 new community homes. It currently serves over 700 individuals with mental health disabilities.
Full Story: Danica Coto, Puerto Rico Ends Legal Battle over Disability, Nov. 3, 2011, available at
http://news.yahoo.com/puerto-rico-ends-legal-battle-over-disability-202004237.html
3. Blind Law School Grad Wins Case for Tech Aids To Take Bar Exam
On October 24, 2011, U.S. District Court Judge Charles Breyer of San Francisco ruled that Stephanie Enyart, a blind law school graduate, has the right to the technological aids she requested for the bar exam. In the summary judgment ruling, Judge Breyer found that the National Conference of Bar Examiners (NCBE) violated the Americans with Disabilities Act (ADA) and California civil rights law by refusing to give Ms. Enyart the accommodations she requested. He also ordered NCBE to provided computer screen magnification and text-reading software in any future exams Enyart takes. The decision comes after the U.S. Ninth Circuit Court of Appeals upheld Breyer's preliminary injunctions in January and the U.S. Supreme Court declined NCBE's petition for certiorari on October 3.
Ms. Enyart filed suit in 2009 after the NCBE refused to grant her the accommodations she sought on two portions of the exam. The California State Bar allowed her to use the requested combination of visual and auditory aids for the state portion. Ms. Enyart said that she required these specific accommodations because she learned to read before she became blind, and did not rely solely on hearing or reading Braille to process information. She uses peripheral vision to read short items of highly magnified text but has severe eye fatigue and nausea after five minutes and must navigate between magnified text and spoken text. The NCBE offered a human reader, Braille, or magnified text as accommodations and argued that these options met the requirements of the ADA and that Ms. Enyart's request would be a financial burden. The Ninth Circuit disagreed in January, holding that the standard interpret ion of the law should be technology that would "best ensure" that Ms. Enyart's performance on the test reflected her knowledge. Since the Supreme Court denied NCBE's appeal, that standard is now controlling law for the case.
Full Story: Julia Cheever, Blind Law School Grad Wins Case for Tech Aids to Take Bar Exam, Oct. 26, 2011 available at
http://sfappeal.com/news/2011/10/blind-law-school-grad-wins-case-for-tech-aids-to-take-bar-exam.php
4. Victims Speak Out about North Carolina Sterilization Program
North Carolina was one of 31 states to have a government-run eugenics program. By the 1960s, tens of thousands of Americans were sterilized. According to the eugenics theory, poverty, promiscuity, and alcoholism were inherited traits that could be eliminated through sterilization. As recently as 1967 in North Carolina, a five-person eugenics board approved doctors' recommendations for reasons such as "feeblemindedness," "promiscuousness," and poor schoolwork. The state used eugenics to control welfare spending. One third of the sterilizations were performed on girls under the age of 18, some as young as nine years old. Between 1929 and 1974, 7,600 people were sterilized in North Carolina. Of those who were sterilized, 85 percent of the victims were female and 40 percent were non-white.
North Carolina's eugenics board was disbanded in 1977, but the law allowing involuntary sterilization wasn't repealed until 2003. In 2002, the state issued an apology to individuals who had been sterilized, but victims have not received financial compensation, medical care, or counseling. In August, a task force recommended compensation and mental health services for living victims, plus the creation of a traveling museum exhibit about North Carolina's eugenics program. Officials estimate that as many as 2,000 victims are still alive.
Full Story: Michelle Kessel & Jessica Hopper, Victims Speak Out about North Carolina Sterilization Program, Which Targeted Women, Young Girls and Blacks, Nov. 7, 2011 available at
http://rockcenter.msnbc.msn.com/_news/2011/11/07/8640744-victims-speak-out-about-north-carolina-sterilization-program-which-targeted-women-young-girls-and-blacks
B. EDUCATION
1. American Sign Language Class Attracts the Oregon Football Team
The University of Oregon undergraduates are required to fulfill a foreign language requirement. For the last four years, American Sign Language (ASL) has been an approved language that can fulfill the foreign language requirement. Instructors from the ASL department have noticed a large upswing in enrollment from the Oregon football team. It is not uncommon for college athletes to enroll in "easy A" classes to maintain their academic record that allows them to stay on their team; however, the football players as well as the ASL instructors assure others that this is not the case here. Many Oregon football players have discovered that ASL comes easily to them because they are used to responding to different signs on the field.
The history of ASL and sports have intertwined before. The football team at Gallaudet University, a deaf university in Washington, D.C., claims to have originated the football huddle. A member of the team was concerned that the opposing team could read their signs and determine their next play, and so they began to huddle up and cover their signs. Additionally, Deafdigest.net, a news source for the deaf community, reported that at least 76 deaf or hard-of-hearing students play in the N.C.A.A. and 39 of them play for Division I teams.
Full Story: Isolde Raftery, The Oops in the 'O' for Oregon, New York Times, Nov. 17, 2011, available at
http://www.nytimes.com/2011/11/18/sports/ncaafootball/american-sign-language-program-attracts-oregon-football-players.html?_r=1
2. New College Advice Handbook for Students with Autism
The Autistic Self Advocacy Network recently produced a college handbook geared toward students with autism. Written by adults with autism, this book takes a step-by-step approach to college life for students with autism, including classroom accommodations and dealing with roommates.
The handbook uses firsthand accounts and honest advice that touches on topics such as self-advocacy, independent living, good eating, and sleep habits. The goal of the book is to assist students with autism in making a smooth transition to college, both socially and academically.
Full Story: Michelle Diament, Handbook Offers College Advice for Students with Autism, Oct. 25, 2011, available at
http://www.disabilityscoop.com/2011/10/25/handbook-college-autism/14313/
C. TECHNOLOGY / TELECOMMUNICATIONS
1. DOC Reports on Digital Divide in Internet Access for People with Disabilities
On November 11, 2011, the U.S. Department of Commerce (DOC) released a report entitled "Exploring the Digital Nation: Computer and Internet Use at Home," outlining trends of Internet growth and accessibility in American homes. The DOC report stated that as American homes increasingly gain access to high-speed broadband Internet, individuals with disabilities continue to experience unequal access--a phenomenon referred to as the "digital divide."
According to the DOC, of the more than 54,000 households surveyed in 2010, just 43% of those headed by individuals with disabilities had high-speed broadband Internet access, compared to 72% of those households headed by individuals without disabilities. The DOC cited socioeconomic factors as the primary cause of Internet access disparities, finding that when researchers controlled for factors such as income, education, age, and other demographics, the disparity in Internet access decreased from 29% to 6%. These factors, however, did not account for the full disparity, and the DOC noted that a lack of access to computers--rather than the Internet specifically--is likely a contributory cause to the digital divide, as a large portion of individuals without Internet access also do not have in-home computers.
Full Story: U.S. Department of Commerce, Exploring the Digital Nation: Computer and Internet Use at Home, Nov. 11, 2011, available at
http://www.esa.doc.gov/sites/default/files/reports/documents/exploringthedigitalnation-computerandinternetuseathome.pdfSee Also: Shaun Heasley, Feds: People with Disabilities Face Digital Divide, Disability Scoop, Nov. 11, 2011, available at
http://www.disabilityscoop.com/2011/11/11/feds-digital-divide/14432/
D. HEALTHCARE / BENEFITS
1. Social Security Administration Expands Compassionate Allowances List
Effective December 2012, the Social Security Administration will add 13 more conditions to its list of Compassionate Allowances. The Compassionate Allowances (CA) program expedites social security disability claims where the nature of the applicant's condition clearly meets the legal definition of disability. The agency uses a sophisticated computer program to identify potential CA candidates and then quickly decides if the applicant meets the criteria. The program began in 2008 with a list of 50 conditions, and with the addition of these 13 new conditions the list will reach 113.
According to Commissioner Michael J. Astrue, the reason for the expansion of the CA list was efficiency: "Social Security handles more than three million disability applications each year and we need to keep innovating and making our work more efficient ... with our Compassionate Allowances program, we quickly approved disability benefits for more than 60,000 people with severe disabilities in the past fiscal year." The 13 new disabilities involve the immune system or are neurological in nature. The list includes Malignant Multiple Sclerosis, Paraneoplastic Pemphigus, and Multicentric Castleman Disease, among others.
Full Story: Social Security Administration, Social Security Expands Compassionate Allowance Conditions, Nov. 14, 2011, available at
http://triblocal.com/tinley-park/community/stories/2011/11/social-security-expands-compassionate-allowance-conditions/
2. California Law Bans Discretionary Clauses in Disability Insurance Policies
Starting January 1, 2012, "discretionary clauses" in disability and life insurance policies will be illegal in the state of California. Discretionary clauses allow insurance companies to second-guess doctors' opinions and decide that the policyholder is not disabled and therefore not entitled to benefits. Insurers have argued that these clauses eliminate fraud and keep premiums low.
However, the California Insurance Department argued that insurers use discretionary clauses to deny valid claims because they know it is difficult for policyholders to challenge denials in court. Insurance Commissioner Dave Jones, a key sponsor of the legislation, stated that the law "levels the playing field and gives consumers an even chance to prove that they are entitled to disability and other insurance." California joins several other states that have banned discretionary clauses in the wake of recent federal court rulings upholding similar state laws.
Full Story: Elizabeth Festa, California Bans Discretionary Clauses in Life, Disability Policies, Oct. 4, 2011, available at
http://www.lifehealthpro.com/2011/10/04/california-bans-discretionary-clauses-in-life-disaSee Also: Donahue & Horrow, LLP, Nov. 15, 2011, available at
http://knowledgebase.findlaw.com/kb/2011/Oct/421216.html
E. WORKFORCE
1. AutoZone to Pay $415,000 to Disabled Former Employee
Leading auto parts provider AutoZone, Inc., has been ordered by a federal court in Illinois to provide reasonable accommodations to retail employees. A federal jury also found that AutoZone violated the Americans with Disabilities Act (ADA) and held AutoZone liable for $415,000 in damages, lost wages, and $9,045 in litigation costs.
AutoZone failed to accommodate a sales manager with a disability at one of its stores. The sales manager was required to perform cleaning tasks that violated his medical restrictions and resulted in an injury and severe physical pain. Evidence showed that the sales manager had "near daily pain for six months and ... [needed] physical therapy and other medical attention." The court lowered the jury's monetary award of $600,000 to $300,000, which is the legal maximum for awards given in lawsuits of this sort. The court declined to reduce the award any further, however, noting that it was supported by evidence that the company's managers "knew of but chose to ignore their obligations under the ADA" to accommodate the employee. The court additionally found AutoZone liable for $115,000 in lost wages.
The court granted the Equal Employment Opportunity Commission (EEOC) post-trial request for an injunction finding that "the conduct of the defendant's managerial employees at the highest level was clearly an intentional violation of the ADA" and that there was a "possibility of future infractions." The injunction requires AutoZone to report all requests for reasonable accommodations in that region to the EEOC for a period of three years, and to maintain records of the company's responses to such requests for a period of four years.
The EEOC General Counsel P. David Lopez said that "over the past year, the EEOC has filed more than 60 cases nationwide challenging disability discrimination" and "this victory demonstrates that the [EEOC] will continue to dismantle barriers to employment for people with disabilities. Employers must make decisions based on their employee's abilities, and not on their disabilities."
Full Story: Anneline Waldman, Court Orders AutoZone to Pay $415,000 to Disabled Former Employee, Jobmouse, Nov. 16, 2011, available at
http://thejobmouse.com/2011/11/16/court-orders-autozone-to-pay-415000-to-disabled-former-employee/See Also: EEOC Obtains $600,000 Verdict Against AutoZone for Failure to Accommodate Disabled Employee, Equal Employment Opportunity Commission, June 6, 2011, available at
http://eeoc.gov/eeoc/newsroom/release/6-3-11e.cfm
F. INDEPENDENCE
1. Millions Allocated to Creating Housing for Seniors and People with Disabilities
On November 16, 2011, the U.S. Department of Housing and Urban Development (HUD) announced that $749 million in housing assistance grants will help to create housing for seniors and people with disabilities. Over 189 housing developments in 42 states and Puerto Rico will be constructed or renovated. This will create more than 4,800 affordable, accessible households.
HUD Secretary, Shaun Donovan, stated that "the Obama Administration is committed to helping our senior citizens and persons with disabilities find an affordable place to live that is close to needed healthcare services and transportation." These affordable, accessible households are not for everyone; residents of these households must have very low incomes, approximately 50 percent less than the median household income for that particular area.
Full Story: Obama Administration Announces $749 Million to Fund Housing for Very Low-Income Seniors and Persons with Disabilities, U.S. Department of Housing and Urban Development, Nov. 16, 2011, available at
http://portal.hud.gov/hudportal/HUD?src=%2Fpress%2Fpress_releases_media_advisories%2F2011%2FHUDNo.11-266
2. New Tax Credit for Virgin Island Homeowners Who Build Visitable Homes
Gov. John deJongh, Jr., of the Virgin Islands recently signed a bill that will give tax breaks to homeowners that build their homes with visitable housing design standards. In order for a home to be considered "visitable" the home must have at least one no-step entrance, wide doorways, and an accessible bathroom on the first floor. Homeowners who meet the visitable housing design requirements will receive a certificate of visitability and will be eligible for a real property tax credit of 20 percent for 10 years. Many disability rights activists who were involved in creating this bill, including the V.I. Association for Independent Living and the Disability Rights Center of the Virgin Islands, feel that this bill is a victory and a positive step.
Full Story: Joy Blackburn, Governor Signs Bill that Creates Program to Reward Disabled-Friendly Construction, Virgin Islands Daily News, Nov. 11, 2011, available at
http://virginislandsdailynews.com/news/governor-signs-bill-that-creates-program-to-reward-disabled-friendly-construction-1.1231150#ixzz1e4lCBy7h
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Texas Wildfires Prompt FEMA to Improve Communication Methods
In the wake of the early September wildfires in Texas, FEMA has taken steps to overcome any communication barriers that may hinder its ability to assist Texas communities effectively and promptly. Community Relations specialists canvassed wildfire-affected neighborhoods, finding that English, Spanish, and American Sign Language were all needed to communicate with residents. As part of the recovery effort, FEMA has ensured multilingual Community Relations specialists, translators, and interpreters were available for the community, as well as offering all information in alternative language and formats. Media efforts to bridge communication with those in need include partnerships with Spanish-language media in order to reach survivors, as well as video relay services for the deaf and hard of hearing. The video relay service equipment, donated by the nonprofit organization Communication Service for the Deaf, allows communication with recovery specialists who are not capable of signing. FEMA stresses the importance of identifying language and communication barriers within communities. Since November 2010, over 1,091 homes and 3.6 million acres of land have been destroyed by wildfires in Texas.
Full Story: FEMA Working to Overcome Communication Barriers to Disaster Assistance, FEMA, Nov. 16, 2011, available at
http://www.fema.gov/news/newsrelease.fema?id=59538See Also: Texas Wildfires Destroy at Least 500 Homes, Los Angeles Times, Sept. 6, 2011, available at
http://articles.latimes.com/2011/sep/06/nation/la-na-texas-wildfires-20110906
2. Homeland Security Officials Participate in Community Preparation Seminar
Homeland Security and emergency officials recently attended a seminar titled "Planning for the Whole Community" on December 2, 2011. The seminar focused on a "whole community" approach in responding to natural and manmade disasters, meaning it is crucial for communities to prepare adequately and provide resources to one another during crises, as government aid teams have limited resources. The seminar also highlighted the value of independence from government aid, training thousands of community emergency response teams as part of the approach. States and local emergency management agencies are working to build databases of individuals with disabilities and their special needs. One example is New Jersey's web-based Register Ready, which informs first responders of such information.
Full Story: Emergency Response for the Disabled, Dec. 8, 2011, available at
http://www.homelandsecuritynewswire.com/dr20111208-emergency-response-for-the-disabledSee Also: New Jersey Register Ready, available at
https://www13.state.nj.us/SpecialNeeds/
H. INTERNATIONAL
1. Taiwanese People Protest in Support of People with Disabilities
On November 14, 2011, approximately 1,000 people took to the streets in Taipei to demonstrate on behalf of people with disabilities. The protest was heralded as the largest demonstration of its kind in Taiwan in the past decade. The group marched from the Taipei Main Station to the Presidential Office, and along the way the protestors submitted petitions in support of the cause to the Control Yuan, Executive Yuan, the Ministry of the Interior, and the Ministry of Education, which all had offices along the route of the demonstration.
The protestors were concerned with a number of issues, including barrier-free restaurants, public transportation, personal assistants for students with disabilities at school, early retirement, and employment.
Full Story: People with Disabilities Take to Streets for Improved Rights in Taiwan, Disability News Asia, Nov. 14, 2011, available at
http://www.disabilitynewsasia.com/home-mainmenu-1/1081-people-with-disabilities-take-to-streets-for-improved-rights-in-taiwan.html
2. Deaf Woman Elected to New Zealand Parliament
On November 26, 2011, Mojo Mathers became the first deaf person elected to the New Zealand parliament. The National Foundation for the Deaf (NDF) and the Royal New Zealand Foundation of the Blind (RNZFB) issued congratulations in December for her win. "She is a wonderful role model, a shining example of how people who are deaf or hearing impaired can be positive, active members of their communities," said Louise Carroll, CEO of the NDF, upon Mathers' election.
Mathers is a member of the New Zealand Green party, which has been pushing for more accessible elections. Mathers has marshaled support from the NDF and RNZFB, among others, in helping to achieve her goal to "build cross party support around ensuring everyone can participate equally in the political process."
Full Story: First Deaf MP Leads the Way for Others with Disabilities, Voxy, Dec. 12, 2011, available at
http://www.voxy.co.nz/politics/first-deaf-mp-leads-way-others-disabilities/5/110215See Also: NDF Congratulates NZ's First Profoundly Deaf MP, Voxy, Dec. 12, 2011, available at
http://www.voxy.co.nz/politics/ndf-congratulates-nzs-first-profoundly-deaf-mp/5/110181
I. MISCELLANEOUS
1. NCD Highlights Modern Issues on International Day of Persons with Disabilities
On December 3, 2011, people around the world observed the 19th International Day of Persons with Disabilities, first recognized by the United Nations General Assembly in 1992. The theme of this year's observance was "Together for a better world for all: Including persons with disabilities in development." In recognition of the day, the U.S. National Council on Disability (NCD) released a new report focusing on the importance of providing individuals with disabilities with access to international development projects aimed at developing international economies, democracies, systems of governance, humanitarian causes, new infrastructure, and human rights.
According to NCD and World Health Organization estimates, individuals with disabilities constitute approximately 15% of the world population, and 80% of those individuals live in developing nations. The NCD pointed out that individuals with disabilities around the world experience barriers to political participation, particularly with regard to inaccessible voting centers, polling places, courthouses, administrative agencies, schools, and embassies. Citing these trends, the NCD argued that in observation of the 19th International Day of Persons with Disabilities, the nation should be reminded that public programs aimed at international economic and political development cannot be successful unless people with disabilities are included in the process at all levels.
Full Story: National Council on Disability, Statement by the National Council on Disability on the 19th Observance of International Day of Persons with Disabilities, Dec. 2, 2011, available at
http://www.prnewswire.com/news-releases/statement-by-the-national-council-on-disability-on-the-19th-observance-of-international-day-of-persons-with-disabilities-december-3-2011-134824418.html
ANNOUNCEMENTS
The staff of the Disability Law & Policy e-Newsletter welcomes suggestions for announcements incorporating a focus on disability law or policy in forthcoming issues. If you would like to bring calls for papers or proposals, conferences or events, book announcements, new resources, or scholarship, fellowship or internship competitions to our attention, please send them to mailto:dlpannounce@law.syr.edu. Thank you.
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The Disability Law & Policy e-Newsletter is the collaborative product of Editor-in-Chief David W. Klein, Ph.D., Executive Editor William N. Myhill, M.Ed., J.D.; Senior Editor Kelly J. Bunch, J.D.; and Associate Editors Brandon Sawyer, Matthew Saleh, Dana Mele, Tovah Miller, Jonathan Schnader, Stephanie Woodward, Robert Borrelle, Jr., Brandon Hill, and Paris Peckerman.
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