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
September 10, 2012
Volume 9, Issue 7
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. Court Revives Discrimination Lawsuit against the EEOC
On July 30, 2012, the Ninth Circuit Court of Appeals received an employment discrimination lawsuit against the EEOC. A federal district court judge ruled in April 2010 that Mary Bullock's suit could not proceed because she filed her lawsuit too soon after filing her administrative appeal. But since an administrative law judge had already ruled on her complaint, the Ninth Circuit decided that the administrative appeal was optional.
Ms. Bullock, who has multiple sclerosis and systemic lupus, originally filed her lawsuit against the EEOC alleging disability discrimination in violation of the Rehabilitation Act for retaliating against her when she sought and was denied accommodations. Ms. Bullock was an administrative law judge for the EEOC from 1999 until 2007. Ms. Bullock alleged that her employer denied her a promotion, refused to let her work from home, and gave her tighter deadlines than to her colleagues without disabilities. She brought suit in October of 2006 under the Rehabilitation Act.
Full Story: Joe Palazzolo, Court Revives Discrimination Lawsuit Against...the EEOC, Wall Street Journal, July 30, 2012, available at
http://blogs.wsj.com/law/2012/07/30/ninth-circuit-revives-discrimination-lawsuit-against-anti-discrimination-agency/
2. Senate Holds Hearing on Treaty to Protect People with Disabilities
On July 12, 2012, the Senate Committee on Foreign Relations held a hearing on the ratification of the Convention on the Rights of Persons with Disabilities (CRPD). Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, issued a statement in which he praised the hearing for "send[ing] a signal that the U.S. can once again become a global leader in honoring the dignity of people with disabilities." Henderson pointed out that U.S. laws like the Rehabilitation Act, the Individuals with Disabilities Education Act and the Americans with Disabilities Act have served as models for disability legislation in many countries and the CRPD itself. The CRPD aims to ensure that countries provide people with disabilities equal rights.
Full Story: Scott Westbrook Simpson, Civil and Human Rights Coalition Applauds Senate Hearing on Treaty to Protect People with Disabilities, CivilRights.org, July 12, 2012, available at
http://www.civilrights.org/press/2012/treaty-to-protect-people-with.html
3. Wheelchair Users Sue Walmart in Class Action Case
On July 25, 2012, Janet Brown and Lisa Kilgore, two women who use wheelchairs, filed a federal class action suit in the U.S. District Court in Northern California against Walmart, alleging that its debit card machines are inaccessible in violation of the Americans with Disabilities Act (ADA). Berkeley-based disability rights organization Center for Independent Living filed the suit, which also alleges violations of the California Disabled Persons Act and California's Unruh Act, along with Brown and Kilgore, who both live in the Bay Area.
The plaintiffs filed the suit after advocates launched a seven-year effort to get the store to move the machines. Yomi Wrong, executive director of the Center for Independent Living, stated that Walmart discriminates against wheelchair users because they cannot directly access the debit card machines, which are not in reach. Instead, they must ask cashiers to input the pin numbers for customers who use wheelchairs or sign their names for credit card purchases, leaving them susceptible to identity theft and subjecting them to a more burdensome process than other customers. Wrong said that this is not dignified. The plaintiffs are requesting damages, which will be calculated after the number of plaintiffs in the class action is determined, and attorneys fees. Ashley Hardie, spokeswoman for Walmart, said in a statement that the company's goal is that all of its machines be accessible to the extent required by the ADA and California law.
Full Story: Doug Oakley, Wheelchair Users Sue Walmart in Class Action Case, Mercury News, July 26, 2012, available at
http://www.mercurynews.com/breaking-news/ci_21158173/wheelchair-users-sue-walmart-class-action-case
4. City of Woodlake, CA, Settles over Unlawful Pre-employment Medical Examinations
On August 1, 2012, the United States Justice Department (DOJ) announced that it reached a settlement with the city of Woodlake, California, to resolve allegations that the city discriminated against individuals with disabilities by requiring job applicants to undergo pre-employment medical examinations in violation of the Americans with Disabilities Act (ADA). The DOJ conducted an investigation to determine whether Woodlake engaged in a pattern or practice of discrimination after receiving information that the city of Woodlake was requiring all job applicants to submit to medical examinations as part of the job application process before applicants were offered an employment position. The ADA prohibits such pre-employment examinations because they make it easier for employers to discriminate by refusing to hire otherwise qualified individuals on the basis of disability. This settlement requires Woodlake to cease using its current practice, to develop and implement a non-discrimination policy and to train staff on the ADA's requirements.
Full Story: Department of Justice, Press Release, City of Woodlake, Calif., Settles with Justice Department over Practice of Unlawful Pre-employment Medical Examinations, Aug. 1, 2012, available at
http://www.justice.gov/opa/pr/2012/August/12-crt-963.html
B. EDUCATION
1. Newly Amended Illinois Law Can Help Children with Disabilities
On August 6, 2012, Illinois passed a law that will "enhance early intervention (EI) services for infants and toddlers with disabilities." The Early Intervention Services System Act (SB 820) will make it easier for children to obtain necessary services, to ensure an easy transition to preschool programs and establishes requirements for implementing the 2011 Federal Regulations for the Part C Early Intervention Program for Infants and Toddlers with Disabilities.
Amy Zimmerman, Project Director at Health & Disability Advocates and leader of one of the nation's first medical-legal partnerships, commends the amended law. Zimmerman believes that improving communication, collaboration, and coordination on behalf of children with disabilities and their families is essential for achieving the children's greatest educational capacities.
Full Story: PR Web Press Release, Health & Disability Advocates Says Newly Amended Illinois Law Can Help Children with Disabilities Thrive, Digital Journal, Aug. 8, 2012, available at
http://www.digitaljournal.com/pr/829109
2. Students with Disabilities Suspended Twice as Much
Data collected from the U.S. Department of Education by the Center for Civil Rights Remedies at the University of California, Los Angeles, revealed that students with disabilities are being suspended from school at nearly twice the rate of non-disabled students. Statistics were analyzed from 7,000 school districts, accounting for approximately 85% of students enrolled in public schools. During the 2009-10 school year, 13% of students with disabilities were suspended compared to 7% of students without disabilities. However, school districts vary in their disciplines, whether it is in-school or out-of-school suspensions. In addition, race has been shown to be an issue corresponding with suspensions of students with disabilities. It has been proven that 25% of black students with disabilities were suspended at least once.
Full Story: Shaun Heasley, Kids with Disabilities Suspended Nearly Twice as Much, Disability Scoop, Aug. 8, 2012, available at
http://www.disabilityscoop.com/2012/08/08/kids-suspended-twice/16201/
3. Special Education Lawsuit in Jackson, Mississippi
On July 10, 2012, the Southern Poverty Law Center, Disability Rights in Mississippi, and the Southern Disability Law Center filed suit against the Mississippi Department of Education. Now 18 months after an initial complaint and investigation, the department failed to ensure that the Jackson public school system take action in regard to their violations of the federal Individuals with Disabilities Education Act provision that "students with disabilities receive a free, appropriate public education." In a November 2010 letter, the department advised the district with methods to resolve the allegations against them. The main concerns were that students with behavioral and emotional disabilities were deprived of necessary services, such as counseling, and employees were not substantially trained.
The Jackson public school system has 30,000 students, 3,000 of whom have disabilities. The graduation rate for students with disabilities within the district was 9.1% following the 2010-11 school year.
Full Story: Nirvi Shah, Mississippi Ed. Agency Sued over Lingering IDEA Violations in Jackson, Education Week, July 10, 2012, available at
http://blogs.edweek.org/edweek/speced/2012/07/mississippi_ed_agency_sued_ove.html
4. Governor Cuomo Vetoes Special Education Bill
On July 31, 2012, New York Gov. Andrew M. Cuomo vetoed a bill that required "public school officials to take into account the 'home life and family background' of special education students when placing them in schools." If approved, taxpayers would have aided in funding for students with disabilities to attend private schools as per their parents' desires. Students would be provided learning environments more compatible with their family values, allowing for strong cultural consideration. Some of the values that the bill would have covered were religious practices, dietary concerns, and clothing preferences.
However, Cuomo took strong consideration of the financial burden that the general public would sustain. Cuomo stated that the bill would have created "an overly broad and ambiguous mandate," subsequently producing "incalculable significant additional costs."
Full Story: Anne Barnard, Cuomo Vetoes Bill on Placement of Special Education Students, New York Times, July 31, 2012, available at
http://www.nytimes.com/2012/08/01/nyregion/cuomo-vetoes-bill-on-placement-of-special-education-students.html
C. TECHNOLOGY / TELECOMMUNICATIONS
Device Helps Eyes Do the Write Thing
Dr. Jean Lorenceau, director of research at the French National Center for Scientific Research, conducted a study at the University of Pierre and Marie Curie in Paris that has led to an innovation in eye-tracking technology. A variety of communication systems had previously been developed for people with disabilities that used eye-tracking technology where eye movements could be used to guide a computer cursor, pick out control characters on a screen or compose messages by selecting letters one at a time. Lorenceau's innovation, which produces smooth and controlled eye movements, allows users more personalization through writing in cursive and creating artwork.
Dr. Lorenceau employed an optical illusion, "reverse phi-motion," to allow people to voluntarily produce the smooth, controlled eye movements required for legible script or finely detailed artwork. It had previously been considered impossible to produce the precise eye-control necessary to perform such a task; however, "reverse phi-motion," which uses patterns of contrasting dots on a video screen to create a flickering illusion of motion, has made this innovation possible.
Full Story: Device Helps Eyes Do the Write Thing, Wall Street Journal, Jul. 26, 2012, available at
http://online.wsj.com/article/SB10000872396390444840104577550921487178132.html#articleTabs%3Darticle
D. HEALTHCARE / BENEFITS
1. New ACA Provision Expected to Benefit Millions of American Women
The Department of Health and Human Services estimates 47 million American women, including those with disabilities, will be affected by a new provision of the Affordable Care Act (ACA) which requires employers and insurers to offer free contraceptive coverage and other services. Although this new provision has already taken effect, the new provision in the ACA will not require insurance plans to provide free contraception until the insurance plan's renewal date, which will be January 1, 2013 for most plans.
This new provision will benefit women with disabilities because all new insurance policies must cover not only birth control, but also other preventative health services without requiring a copay, coinsurance, or deductible. These other health services include breast exams; breastfeeding support, supplies, and counseling; screening and counseling for interpersonal and domestic violence; screening for gestational diabetes; DNA testing for high-risk strains of HPV; counseling regarding sexually transmitted infections, including HIV; screening for HIV; contraceptive methods and counseling; and well-woman visits; prenatal care; pelvic exams and plans must also cover an array of services, vaccinations, and interventions needed by women, infants, children, and adolescents at different points in their lifecycle.
Full Story: David Pittman, Birth Control Rule to Kick in Despite Dispute, Medpage Today, July 31, 2012, available at
http://www.medpagetoday.com/Washington-Watch/Reform/33996See also: Jodi Jacobson, Why 'Free Birth Control' Is Not Free, Huffington Post, Aug. 8, 2012, available at
http://www.huffingtonpost.com/jodi-jacobson/birth-control-not-free_b_1741397.html
2. New Study Finds Doctors Are Reluctant to Accept Medicaid Patients
Many states have trouble attracting doctors to treat Medicaid patients due to the low pay doctors receive from the program. A new study by Health Affairs found that nearly 70 percent of doctors accept new Medicaid patients. This rate of acceptance varies widely across the country. For instance, the Centers for Disease Control conducted a survey of doctors, which found that New Jersey had the nation's lowest rate (40 percent) and Wyoming had the highest rate (99 percent) of doctors treating Medicaid patients. Not surprisingly, New Jersey's reimbursement rate for doctors under Medicaid is the lowest in the nation.
Access to doctors remains a major issue, especially for people with disabilities, given the recent Supreme Court ruling on the Affordable Card Act (ACA), which found that Medicaid expansion is now optional for all states. This issue looms large for Medicaid patients--roughly 60 million people--which is expected to increase by 16 million in 2014. But starting in 2014, the ACA will increase payment for doctors who treat Medicaid patients. The pay increase is likely to be around 30 percent for the nation as a whole; moreover, the ACA will also provide $11 billion to expand health centers for Medicaid patients.
Full Story: Sarah Kliff, Study: One-third of Doctors Wouldn't Take New Medicaid Patients Last Year, The Washington Post, Aug. 6, 2012, available at
http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/08/06/study-one-third-of-doctors-wouldnt-take-new-medicaid-patients-last-year/See also: Avik Roy, 'Health Affairs' Study: One-third of Doctors Won't Accept Medicaid Patients, Forbes.com, Aug. 7, 2012, available at
http://www.forbes.com/sites/aroy/2012/08/07/health-affairs-study-one-third-of-doctors-wont-accept-new-medicaid-patients/
E. WORKFORCE
1. Hiring People with Disabilities is Good for Business
The unemployment rate of Americans with disabilities is currently higher than before the passage of the Americans with Disabilities Act, with only 32 percent of working age people with disabilities in the workforce. However, companies that do hire from this population reap great benefits. For example, a Walgreens distribution center in North Carolina employs 800 people, and more than 30 percent of those workers have disabilities. This distribution center is 20 percent more efficient than similar centers. After seeing the success of Walgreens, other companies, including Toys R Us, Best Buy, and Lowes, have adopted similar models. Not only can workers with disabilities help companies to be more efficient, but large companies such as PepsiCo, Ernst & Young LLP, and Proctor & Gamble have also found that they add diversity to the workplace, enrich company culture, and enhance experiences for customers. Unfortunately, despite all the benefits of hiring people with disabilities, they still face discrimination in the workforce. For this reason, Senator Tom Harkin of Iowa has made this a top priority and hopes to add 1 million people with disabilities to the workforce by 2015 by working with nonprofit organizations, private companies, and the government.
Full Story: Hiring Disabled Workers Can Make Companies More Efficient: Report, Huffington Post, July 26, 2012, available at
http://www.huffingtonpost.com/2012/07/26/workers-with-disabilities_n_1707421.html?utm_hp_ref=twStephen E. Freeman, 22 Years Later, Time to Get Serious about the Americans with Disabilities Act, Huffington Post, July 26, 2012, available at
http://www.huffingtonpost.com/stephen-e-freeman/americans-with-disabilities-act_b_1706000.html
2. Federal Government Claims to Be Making Progress in Hiring People with Disabilities
According to the U.S. Office of Personnel Management (OPM), 7.41 percent of the federal government workforce have disabilities. Additionally, 7.96 percent of all newly hired employees in the 2011 fiscal year were people with disabilities. In 2010 President Obama signed an executive order for the federal government to hire 100,000 people with disabilities by 2015. OPM claims to be leading all other federal agencies in hiring people with disabilities and cites that, in 2011, 22.4 percent of all new hires have disabilities; however, this number includes veterans who are "30 percent or more disabled." OPM has also hosted trainings for employees from 56 different federal agencies on how to recruit employees with disabilities. Despite slow progress, OPM Director John Berry is optimistic. "We still have a long way to go to meet the President's 100,000 benchmark but we're well underway," said Barry.
Full Story: Lindsey O'Keefe, News Release: Disability Report Demonstrates Great Strides in Hiring People with Disabilities, U.S. Office of Personnel Management, July 25, 2012, available at
http://www.opm.gov/news/disability-report-demonstrates-great-strides-in-hiring-people-with-disabilities,1757.aspx
F. INDEPENDENCE
1. Study Finds Children with Trisomy 13 and 18 and Their Families Are Happy
A study conducted by Dr. Annie Janvier of the Sainte-Justine University Hospital Center and the University of Montreal and Barbara Farlow, Eng, MSc, the mother of a child who died from trisomy 13, found that children with trisomy 13 and 18 and their families are happy, despite the negative perspective of healthcare providers. Trisomies 13 and 18 are rare chromosome disorders and children with these diagnoses generally have significant disabilities and short lives. Many women or couples choose to have prenatal abortions when their child is diagnosed before birth. Parents who choose to continue to carry their child and give birth often feel that medical providers are prejudiced against them. In fact, the study of 322 parents of children with trisomies found that medical professionals often told parents that their child would be "incompatible with life," be "a vegetable," have "a life of suffering," or would "ruin their family or life as a couple." However, 97% of the parents in the study felt that their child was happy and that their child enriched their family. "Our study points out that physicians and parents can have different views of what constitutes quality of life," Janvier stated. "In the medical literature on all handicaps, disabled patients -- or their families -- rated their quality of life as being higher than caregivers did," added Janvier.
Full Story: Children with Trisomy 13 and 18 and Their Families Appear Happy, ScienceDaily, July 23, 2012, available at
http://www.sciencedaily.com/releases/2012/07/120723094847.htm
2. Disability Rights Activists Protest Inaccessible Hotel Swimming Pools
On August 9, 2012, Rochester ADAPT, a disability rights activist group that is part of a national organization, had a pool party protest at the Rochester Institute of Technology (RIT). The protesters said that the American Hotel & Lodging Association is trying to avoid complying with the updated Americans with Disabilities Act regulations that require public pools to have permanent access for people with disabilities. The hotel industry was supposed to comply with this regulation by March 15, 2012, but pressured the Department of Justice to extend the deadline to Jan. 31, 2013. The disability rights activists targeted RIT because it owns the RIT Inn and Conference Center, and the managing director of this hotel, William Gunther, serves on the board of the American Hotel and Lodging Association.
The President of RIT, Bill Destler, said that pool lifts for the hotel had been ordered and would be installed as soon as they arrive. However, Bruce Darling, a member of Rochester ADAPT, said that "Mr. Gunther and R.I.T. said they'll comply with the law knowing full well that they're taking efforts right now to get rid of the law in the first place. And people with disabilities are not going to sit by and let them take away our civil rights."
Full Story: Patti Singer, Disability Rights Advocacy Group Protests RIT over Access to Pool, Democrat and Chronicle, Aug. 9, 2012, available at
http://www.democratandchronicle.com/article/20120809/NEWS01/308090025Ray Levato, Disability Rights Activists Protest Lack of Access to Hotel Swimming Pools, News 10 WHEC.com, Aug. 9, 2012 available at
http://www.whec.com/news/stories/S2722701.shtml?cat=566
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Smart 911 Experiences Rapid Expansion
In a July 31, 2012, report, Rave Mobile Safety's Smart911 system was stated to have experienced a 50% growth in its first six months. Twenty-five states now utilize the free emergency response system. Smart911 allows individuals to create a profile that includes photos, medical conditions, disabilities, addresses, and phone numbers. When a 9-1-1 call is placed, the caller's profile is automatically obtained. This system allows emergency responders to gain a comprehensive understanding of the situation prior to arrival.
Smart911 is continuing to develop relationships with leading advocacy groups, such as Epilepsy Foundation Texas, and Autism Risk & Safety Management. Its services were awarded with the Edison Award for Personal Safety/Security in the Innovative Services Category.
Full Story: Rave Mobile Safety, Press Release, Smart911 Rapid Expansion Continues with 50 Percent Growth in First Six Months of 2012: Public Safety Answering Points Across the U.S. Adopting Innovating Solution that Provides Additional Data on 9-1-1 Calls for Enhanced Protection of Citizens, July 31, 2012, available at
http://www.marketwatch.com/story/smart911-rapid-expansion-continues-with-50-percent-growth-in-first-six-months-of-2012-2012-07-31
H. INTERNATIONAL
1. Dispute over funding for Australian National Disability Insurance Scheme
The National Disability Insurance Scheme (NDIS) has become a point of contention between political parties in Australia. With the first stage due to begin in 2013, the Federal Coalition and Labor parties disagree on how to fund the NDIS. The scheme will cost an estimated $15 billion a year by 2018 when the NDIS is fully operational, about $8 billion more than the states and territories combined spend now on disability services. While the Labor party wants the states to contribute the extra $8 billion necessary to fund the scheme, the Federal Coalition feels that the extra money should be found through budget cuts of other programs. The debate continues as Jenny Macklin, Disability Reform Minister, said that legislation for the NDIS would be introduced into Parliament as soon as possible, however, without details on funding.
The NDIS website states: "Quite simply, an NDIS will make it possible for people with significant and permanent disability in the first stage locations to get the necessary care and support they require. No longer will their supports be rationed, instead, they will be personalised, based on a plan that reflects their own goals and aspirations. Under an NDIS people will have more control over the services and supports they receive, and the flexibility to explore and choose from a wider range of options and providers."
Full Story: Coalition Vows It Will Wield Razor to Find Disability Funds, The Sydney Morning Herald, July 30, 2012, available at
http://www.smh.com.au/opinion/political-news/coalition-vows-it-will-wield-razor-to-find-disability-funds-20120729-236i4.htmlSee also: Minister's Message: National Disability Insurance Scheme, available at
http://www.ndis.gov.au/
2. Ottawa Establishes Task Force on Employing People with Disabilities
The Canadian federal government is creating a task force aimed at getting more persons with disabilities employed. Of the 4.4 million Canadians with disabilities, only 59.6% are currently active in the workforce. Many workers with disabilities attest to receiving proper accommodations from their employers, but there still remains a significant group of workers who feel discriminated against despite Canada's Employment Equity Act, which outlawed such discrimination. The task force has enlisted executives from companies that have demonstrated exemplary compliance with the legislation. Such companies include Loblaws, Tim Hortons, and Deloitte & Touche.
Full Story: Ottawa Establishes Task Force on Employing People with Disabilities, CTV News, Jul. 29, 2012, available at
http://www.ctvnews.ca/politics/ottawa-establishes-task-force-on-employing-people-with-disabilities-1.897110
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 dlpannounce@law.syr.edu. Thank you.
Calls for Papers and Proposals
Book Announcements
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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 Dana Mele, Matthew Saleh, Stephanie Woodward, Ryan Elliott, Josh Tumen, Max Smith, and Jesse Feitel .
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