The Disability Law & Policy e-Newsletter
An electronic publication of
The Law, Health Policy & Disability Center at the University of Iowa College of Law
The Burton Blatt Institute at Syracuse University
November 21, 2012
Volume 9, Issue 9
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.
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. DOJ Intervenes in Disability Lawsuit Against Law School Admission Council
On October 18, 2012, a federal judge issued an order allowing the Department of Justice (DOJ) to intervene in a disability discrimination lawsuit against the Law School Admission Council (LSAC). The intervention expands the California state class action lawsuit to a nationwide "pattern or practice" lawsuit. The suit, The Department of Fair Employment and Housing v. LSAC Inc. et al., alleges that LSAC engaged in systemic discrimination in the way it processes testing accommodation requests. As a result, LSAC does not provide accommodations that best ensure test-takers can demonstrate aptitude and achievement, rather than disability.
The DOJ's complaint documents LSAC's routine denials of requests for testing accommodations in cases where applicants submitted documentation of a disability and showed a lengthy history of receiving accommodations. In addition, the suit alleges that LSAC discriminates by flagging test scores by test-takers with certain disabilities, disclosing confidential disability-related information to law schools during the admissions process. Flagging is a practice prohibited by the Americans with Disabilities Act (ADA). The proposed complaint seeks declaratory and injunctive relief, compensatory damages, and a civil penalty against LSAC.
Full Story: U.S. Department of Justice, Office of Public Affairs, Justice Department Intervenes in Lawsuit Against Law School Admission Council on Behalf of Test Takers with Disabilities Nationwide, U.S. Department of Justice Briefing Room, Oct. 18, 2012, available at
2. Parents with Disabilities Face Barriers to Raising Families
On September 27, 2012, the National Council on Disability (NCD) released a report examining the conditions of parents with disabilities and their children. The findings were not encouraging. Even 22 years after the passage of the Americans with Disabilities Act (ADA), sterilization laws exist in several states. Women with disabilities are still coerced into sterilization or abortion because they are not deemed fit for motherhood, and a growing trend is visible for sterilizing women with intellectual and psychiatric disabilities. There are 4.1 million parents with disabilities in the United States. These parents are the only distinct group of Americans who struggle to retain custody of their children.
The removal rate for parents with a psychiatric disability is 70-80%; for parents with an intellectual disability, the removal rate is 40-80%. Parents who are deaf or blind report high rates of removal, and 13% of parents with physical disabilities report discrimination in custody cases. Parents with disabilities are more likely to lose custody of their children after divorce, have difficulty obtaining reproductive health care, and face significant barriers to adopting children. Two thirds of states allow courts to decide that a parent is unfit based on disability, and disability may be considered when determining the best interest of the child in custody determinations in every state. The report concludes that the legal system is not protecting the rights of parents with disabilities or their children.
Full Story: National Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children, Sept. 27, 2012, available at
3. Supreme Court May Consider Case that Could Undermine Olmstead Decisions
On October 23, 2012, Washington State Governor Chris Gregoire decided to decline to appeal a federal court ruling that struck down across the board budget cuts that would reduce the amount of home-based care available to residents with disabilities and other Medicare recipients. The Ninth Circuit decided in the May 2012 lawsuit, M.R. et al. v. Dreyfus, that the cuts, which would reduce the number of hours of home-based care by 10%, would violate the Americans with Disabilities Act (ADA). However, the Supreme Court has twice granted Gov. Gregoire extensions to decide whether to petition for certiorari.
Disability rights advocates nationwide advocated against an appeal, arguing that review by the Supreme Court could lead to an overturning, or watering down, of the landmark Olmstead decision which requires states to provide individuals with disabilities appropriate home and community-based care.
Full Story: Brad Shannon, Supreme Court gives Gov. Gregoire, AG More Time to Appeal Disability-Cuts Ruling, The Olympian, Sept. 27, 2012, available at
See also: Brad Shannon, Disabled Advocates Are Asking Gov. Gregoire to Drop Appeal of Court Ruling that Blocked Budget Cuts, Sept. 7, 2012, available at
See also: WA State Budget Cuts Divide 9th Circuit, Reuters Legal News, June 18, 2012, available at
4. Voters with Disabilities Face Accessibility Barriers
On November 6, 2012, many Americans were prevented from voting because of lack of accessible polling places. Business owners who sell and rent ramps report that less money is being spent on ramp purchases and rentals compared with 2008. The Government Accountability Office reports that only 27.3% of polling places were fully accessible in the 2008 election. Barriers to access include lack of ramps or curb cuts, unpaved surfaces, and bumps in doorways, as well as barriers for voters with visual impairments. These barriers exist despite the fact that the Americans with Disabilities Act (ADA) requires voting places to be accessible, and the Help America Vote Act provides federal funding for that purpose.
The New York City Board of Elections has found that 57 of its 1,255 polling sites do not meet ADA standards. Congress allocated about $3.25 billion to states from 2003 until 2010 to improve the voting process, a large portion of which was intended for purchasing fully accessible voting equipment. However, very little of that funding was used to make polling centers accessible. Officials now claim lack of funding is the reason for the failure to provide full access to voting. Currently, the National Disability Rights Network is performing a "Voting Accessibility Questionnaire," which if published may provide greater insight into the challenges voters with disabilities encountered in attempting to cast their ballot in the 2012 elections."
Full Story: Parija Kavilanz, Disabled Voters Face Election Day Challenges, Oct. 11, 2012, available at
See also: Gregory Kurte, Study Shows Voters with Disabilities Face Access Barriers, Aug. 10, 2012, available at
1. U.S. Department of Education: N.J. School District Segregates Students with Disabilities
On October 1, 2012, the U.S. Department of Education's Office of Civil Rights released findings that conclude the East Orange (New Jersey) School District discriminated against many of its students with disabilities by placing them in segregated classrooms. In 2010-2011, the district placed 64% of its students with disabilities in self-contained settings--meaning settings specifically designated for children with disabilities. The district often made these placement decisions without considering whether the students would benefit from learning in an integrated classroom with supplementary aids and services. Furthermore, many placement decisions were based on teacher statements instead of test results or other data.
The Department's report requires the district to place students with disabilities in integrated classrooms unless it can demonstrate in writing that education in an integrated classroom cannot be achieved satisfactorily even with the use of supplementary aids and services. The East Orange School District has vowed to implement the Department's requirements and resolve all issues raised by the investigation.
Full Story: Nirvi Shah, N.J. District Cited for Segregating Students with Disabilities, Oct. 1, 2012, Education Week, available at
2. Office of Civil Rights Publishes Report to Commemorate Disability Rights Law
On October 2, 2012, the Department of Education's Office of Civil Rights released Disability Rights: Enforcement Highlights, a report describing its work over the last three years to enforce the Rehabilitation Act and other disability rights laws. According to the Department, its Office of Civil Rights has received 11,700 disability-related complaints over the last three years--the most ever in a three-year period--and has launched more than 30 systemic investigations that address a broad range of disability-related issues in schools across the country.
The report also notes that disability discrimination remains a serious problem in our schools today. For example, in a March 2012 survey conducted by the Office of Civil Rights, nearly a third of school districts questioned reported at least one incident of bullying or harassment on the basis of disability. The survey also showed that students with disabilities represent 70% of the students who are physically restrained by adults in their schools despite making up only 12% percent of the school population.
Full Story: U.S. Department of Education, Press Release, Secretary Duncan, White House Officials Join Disability Stakeholders in Commemorating Anniversary of Key Civil Rights Law, Oct. 2, 2012, U.S. Department of Education Press Office, available at
C. TECHNOLOGY / TELECOMMUNICATIONS
1. University of Tokyo and Microsoft Adapt Kinect Technology for People with Disabilities
University of Tokyo and Microsoft Japan are currently in the testing phase of a project which would incorporate Microsoft's Xbox 360 Kinect technology into computers, allowing those with moderate to severe physical impairments to more easily use Windows computers. Kinect is a motion-sensing and voice recognition technology. Microsoft originally created the technology for use with their Xbox 360 gaming system, but researchers at the University of Tokyo Research Center for Advanced Science and Technology (RCAST) saw the applicability to computers. The partnership with Microsoft Japan has created a complementary software system called Observation and Access with Kinect (OAK). Using this system, computers are able to recognize both movement and depth of field, picking up on voice recognition and facial movements, which will allow users with severe disabilities to use a computer. Children with physical disabilities in Japan have been asked to try out the new system for researchers.
Full story: Radhika Seth, Tokyo University, Microsoft Adapt Xbox Kinect to Allow Physically Disabled to Use Computers, Japan Daily Press, Oct. 9, 2012, available at
2. Netflix Agrees to Caption All Streaming Content by 2014
Netflix has reached an agreement with two deafness advocacy groups to caption 100% of the company's online streaming media by 2014. Currently Netflix offers captioning services for about 90% of their online streaming media. This fact prompted the National Association of the Deaf (NAD), the Western Massachusetts Association of the Deaf and Hearing-Impaired (WMAD/HI) and Lee Nettles, a deaf Massachusetts resident, to file suit against the company in 2010.
Under the agreement, the court will continue to monitor Netflix for four years to make sure that the company continues to uphold their end of the bargain. Neil Hunt, Netflix chief product officer, said, "We are pleased to have reached this agreement and hope it serves as a benchmark for other providers of streaming video entertainment."
Full story: Chloe Albanesius, Netflix to Caption All Streaming Content by 2014, PC Magazine, Oct. 11, 2012, available at
D. HEALTHCARE / BENEFITS
1. Investigation Faults Judges in Disability Cases
Social Security officials are overworked and often award disability benefits without properly reviewing medical claims. Investigators chose 300 randomly selected cases from Virginia, Alabama, and Oklahoma in which people were awarded disability benefits. More than 25% of the cases in which people were awarded benefits "failed to properly address insufficient, contradictory, or incomplete evidence." For many of these cases, officials approved disability benefits without using medical evidence to support the finding. Further, in an attempt to reduce backlogs, some administrative law judges are not reviewing all the evidence.
Laid-off workers and aging baby boomers have been flooding the Social Security disability program (SSI) since the economy recessed in 2008. It is predicted that in 2016 the SSI trust fund will run out of money, leaving the program unable to pay full benefits, which average slightly above $500 per month, for its 8.2 million recipients. In 1994, Congress reallocated money from the retirement program to SSI. However, that reallocation would further weaken the retirement program, which is also having financial problems. The investigators' study suggests that the SSI application process be streamlined, so that Social Security officials can properly review medical claims and administrative law judges can properly apply the law.
Full Story: Stephen Ohlemacher, Investigation Faults Judges in Disability Cases, Yahoo! News, Sept. 12, 2012, available at
2. Billionaire Backs Disability Health Push
Tom Golisano, founder of Paychex, is pledging the largest-ever gift of its kind--$12 million to the Special Olympics to launch a new health initiative for people with intellectual disabilities. This donation will be spread out over four years and be used to establish "Healthy Communities," which are clinics created to specifically address the health care needs of people with intellectual disabilities. The plan calls for more than 1,500 clinics to be established in six states and seven countries (Arizona, Florida, Kansas, New Jersey, New York, Wisconsin) and internationally in Malawi, Malaysia, Mexico, Peru, Romania, and South Africa.
The Healthy Communities program is based on the existing "Healthy Athletes" program of the Special Olympics, which provides free health screenings to persons with intellectual disabilities. According to the Special Olympics, this population experiences a higher rate of preventable illness, likely because people with intellectual disabilities have difficulty locating health care providers to meet their specific needs. This new health initiative aims to improve medical services for people with intellectual disabilities.
Full Story: Shaun Heasley, Billionaire Backs Disability Health Push, Disability Scoop, Sept. 25, 2012, available at
3. Use of Antipsychotic Drugs Up Sharply among Poor Children in Kentucky
According a University of Kentucky report, the distribution of powerful antipsychotic drugs to poor and disabled children on Medicaid in Kentucky has increased 270% from 2000 to 2010. The largest growth was for minority children, who were prescribed mental health medications at three times the rate of white children in 2010. Additionally, the report found geographical differences in how minority children are treated for mental illness. For instance, minority children in Bath County, a rural county in Eastern Kentucky are prescribed antipsychotic medications at a rate nearly 26 times higher than minority children in Christian County, a more urban county in Western Kentucky, whereas there was little difference in white children of these two counties. Further, the rate of ADHD prescriptions can be as much as 11 times higher for poor children in Western Kentucky than in Eastern Kentucky.
The report indicates a need for a further study on the disparities in the data, both in Kentucky and nationally. Clinicians say that a combination of factors is driving the increase in prescribed antipsychotics. A possible reason for the increase could be due to Kentucky catching up with other states in the treatment of childhood mental health disorders. However, because of the few mental health professionals in Kentucky, many of these drugs are being prescribed by primary care doctors. This increase in rates of antipsychotic prescriptions is a national trend. The president and CEO of a northern Kentucky community mental health center, NorthKey Community Care, said that child recipients of Medicaid should be referred to a mental health professional if they are being treated for a mental illness. Many diagnoses, like anxiety disorder, can be treated alternatively through behavioral intervention. Such a referral system could decrease Medicaid costs and prevent the overprescribing of medications.
Full Story: Beth Musgrave, Use of Antipsychotic Drugs Up Sharply among Poor Children in Kentucky, Kentucky.com, Oct. 9, 2012, available at
1. Disability Employment Effort Gets Boost
Near the end of September 2012, the U.S. Department of Labor (DOL) announced that it will give $20 million to seven states. Each of the states--Florida, Louisiana, Iowa, Indiana, Rhode Island, Massachusetts and Minnesota--will receive from $1.8 to $4.8 million to increase education and training for underemployed or unemployed people with disabilities and those who receive Social Security benefits. Similar programs have been implemented in a number of other states.
The DOL would like the states to have developmental disabilities agencies, vocational rehabilitation programs, and independent living centers collaborate to help people with disabilities become part of the workforce in the best way possible. Assistant Secretary for the DOL's Office of Disability Employment Policy Kathy Martinez stated that by working together these organizations could provide people with disabilities with the education and training they need to become employed and independent, which she believes everyone has a right to do.
Full Story: Shaun Heasley, Disability Employment Efforts Gets Boost, Disability Scoop, Sept. 21, 2012, available at
1. Connecticut Supreme Court Sets Higher Standards for Rape Victims with Disabilities
A man convicted of sexually assaulting a woman with cerebral palsy who cannot communicate verbally was set free by the Connecticut Supreme Court and cannot be tried again. Richard Fourtin, Jr. was sentenced to six years in prison after a jury found that he sexually assaulted the 26-year-old woman who has little body movement. Afterward, the Appellate Court found that the woman was not physically helpless according to the state law under which that the jury convicted Fourtin. Then the Connecticut Supreme Court, in a 4-3 decision, threw out the conviction and found that there was no evidence that the woman could not communicate her refusal to have sex with Fourtin. Disability rights advocates criticized this decision because, according to the Rape, Abuse, and Incest National Network, absence of physical resistance is not evidence of a person's consent. James McGaughey, executive director of the Office of Protection and Advocacy for Persons with Disabilities said that "people with disabilities are much more likely to be sexually assaulted than people who do not have disabilities" and "our justice system should provide them with protection, not require them to resist their attackers."
Full Story: Daniel Tepfer, Supreme Court Sets Accused Rapist Free, Connecticut Post, Oct. 1, 2012, available at
See also: Charlie Wells, Connecticut Supreme Court Tosses Richard Fourtin Jr.'s Guilty Verdict for Sexually Assaulting Woman with Severe Cerebral Palsy, New York Daily News, Oct. 4, 2012, available at
2. FCC Rules for the Communications and Video Accessibility Act Leave Loopholes
The 21st Century Communications and Video Accessibility Act (CVAA) was signed into law by President Obama in 2010. The law was created to, among other things, require more captioning in videos. The Federal Communications Commission (FCC) recently issued a set of rules to implement the CVAA, which took effect on September 30, 2012. While the deaf community sees these rules as a step in the right direction, they feel there are too many loopholes in the rules. For example, the rules require full-length television shows to be captioned when they are put online, but the rules do not require shows that are solely aired on the internet to be captioned. Additionally, full-length news shows reproduced on the internet must be captioned, but short news clips do not have to meet this requirement. Deaf advocates also pointed out that the FCC rules do not help the blind community because the rules do not require audio description. Advocates in the deaf community plan to continue to work with congress to rewrite the CVAA to fix all of the loopholes and shortcomings of the new FCC rules.
Full Story: Tim Devaney, New FCC Rules on Closed Captioning Fall Short, Deaf Say, Washington Times, Oct. 8, 2012, available at
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Emergency Preparedness Tips for Disabled Southern California Residents
A recent article published by NBC Los Angeles, highlights the problems that people with disabilities face during emergencies and natural disasters. "I know you are supposed to drop, cover and hold on and things like that but if I drop on the floor, I'm not going to be able to get back up on my wheelchair," said Deserie Ortiz who suffered a spinal injury in a car accident.
According to the article, experts are expecting a massive earthquake to hit Southern California "sooner rather than later." The media have nicknamed this predicted earthquake The Big One. Ms. Ortiz works with disabled youth and admits she needs to better prepare herself for natural disasters. "I just have to do it now. Especially since I am an advocate of my own life and I'm an advocate for others, I need to be an example," she said.
Jeff Reeb, access and functional needs coordinator for LA County Office of Emergency Management, provided a video recording for the article in which he addressed specific measures that people with disabilities should take to prepare for natural disasters. People with disabilities are aware that they need help escaping from and protecting themselves from natural disasters and properly preparing goes a long way. "I do know that I am a person with a disability and that I am going to need help at times," said Ortiz.
Full story: Stephanie Elam, Earthquake Preparation Tips for Angelenos with Disabilities, NBC Southern California, Oct. 16, 2012, available at
1. Air Berlin Removes Six Passengers with Disabilities from Flight
Six passengers traveling to Dusseldorf, Germany, to participate in a series of seminars focusing on disability awareness were asked to leave prior to takeoff. The persons with disabilities, as well as the five caretakers traveling together, were not allowed to board out of safety concerns stemming from having too many wheelchairs aboard the aircraft. The passengers claim Air Berlin suggested the group split up and fly to Germany over two separate days.
According to an Air Berlin spokesperson, the airline restricts the number of passengers with reduced mobility to a maximum of four per flight. Because the company received incorrect booking information, the airline claims, the five passengers using wheelchairs were all mistakenly confirmed for the same flight. Despite Air Berlin's offer of an alternative travel solution at no additional costs, the passengers will look to claim the value of the airfare and moral damages.
Full Story: Roberto Castiglioni, Air Berlin Throws Group of Disabled Passengers off Flight, Reduced Mobility Rights, Oct. 8, 2012, available at
2. Indian Disability Rights Leader Says Key to India's Future is Access
Javed Abidi, founder of the Disability Rights Group in India, recently gave extended comments about the status of persons with disabilities in the world's second-most populous country. Mr. Abidi, who also serves as honorary director of the National Centre for the Promotion of Employment for Disabled People, says that India falls far behind the progress made by other countries in Asia and the Global South in providing access to persons with disabilities. He makes clear that giving persons with disabilities access should be India's primary initiative, and that education is impossible without such universal access.
Mr. Abidi explained how India's Ministry of Social Justice and Empowerment (MJSE) recently submitted a draft proposal of the law necessary to properly adopt the United Nations Convention on the Rights of Persons with Disabilities, and with "sufficient political will," the MJSE can have the Bill tabled for Parliament's Winter session. Additionally, Mr. Abidi said the recent 2012 Paralympic Games should serve as a wakeup call for the subcontinent, a nation that continues to "remain marginalized and neglected" in the area of rights for people with disabilities.
Full Story: Without Access, Education Is Nearly Impossible, The Hindu, Sept. 23, 2012 available at
1. Sesame Street Features Service Dog
A real service dog named Hercules will be featured in Episode 43 of Sesame Street, which will air on October 12, November 12, and November 30, 2012. Hercules will be helping a new Sesame Street Muppet character named Brandies learn how to be a service dog. Brandies is a yellow Labrador retriever Muppet who is looking for a job. After unsuccessful attempts at working at a laundromat and sweeping floors, Brandies learns about being a service dog. Brandies starts training by learning how to open drawers, pick things up, and turn on light switches. After training for weeks, Brandies becomes an official service dog and meets Liliana, the person he will be helping. Liliana is a wheelchair user and Brandies helps her by picking up her bag when it drops and opening doors. The organization Canine Companions for Independence worked with Sesame Street to create this episode to increase awareness of service dogs that help people with disabilities.
Full Story: Canine Companions for Independence, Press Release, Sesame Street Episode Launches New Service Dog Muppet, Canine Companions for Independence Pressroom, available at
2. Television Shows Help Raise Awareness by Featuring Actors with Down Syndrome
This fall, more television shows will feature actors with Down syndrome, including Glee, Shameless, American Horror Story, Blue Bloods, Legit and The New Normal. Glee has already had two actresses with Down syndrome on the show, Lauren Potter who plays a student named Becky, and Robin Trocki who played the sister of the cheerleading coach, Sue Sylvester. Now Glee has added a third character with Down syndrome, Robin, Sue Sylvester's daughter, played by Jordyn Orr. The National Down Syndrome Society's (NDSS) vice president of marketing, Julie Cevallos, says that television shows featuring actors with Down syndrome not only helped the NDSS website to get more attention and NDSS fundraising efforts, but also these shows are helping change society's perspective on Down syndrome by giving society an accurate view of how people with Down syndrome act and live.
Full Story: Sydney Lupkin, Actors with Down Syndrome Raise Awareness, ABC News, Sept. 14, 2012, available at
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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, Stephanie Woodward, Ryan Elliott, Jesse Feitel, Kathleen Battoe, Michael Hacker, Alessandra Baldini, and Robert Borrelle.
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