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
December 20, 2012
Volume 9, Issue 10
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. Capitol Poses Serious Obstacles for People with Disabilities
In a report released on October 12, 2012, Congress's Office of Compliance (OOC) revealed that despite bipartisan agreement to fix the problem, the Capitol campus is filled with barriers to accessibility. In a survey of the House-side sidewalks, it found 154 barriers, over half of which are safety risks for people with disabilities. Ninety-three percent of curb ramps outside the three House buildings do not comply with the Americans with Disabilities Act (ADA). Many of these barriers were built after the law was applied to the buildings in 1995. Both of the restrooms inspected in the Senate and House office buildings failed to comply with the ADA.
The OOC estimated that it would cost about $1.4 million to eliminate the barriers it found, and the OOC did not even inspect all of the buildings and offices. Remedial measures would range from installing new bathroom handrails to regrading curb ramps. If the Justice Department had jurisdiction to enforce compliance, it could seek up to $100,000 in civil penalties for some of the violations. However, no executive entity has authority to enforce the Architect of the Capitol (AOC) or its contractors to comply with the ADA; a member of the public must file a complaint with the Compliance Office in order for the AOC to address problems. The AOC recognizes that improvements are important but argue that changes are currently not allowed by the budget. Unlike in the private sector and in state and local government buildings, inspections for ADA compliance in proposals for new construction under the AOC are not required by the ADA. The AOC is responsible for making these changes and has committed to prioritize efforts toward improving access.
Full Story: Erin Mershon, Capitol Poses Serious Obstacles for People with Disabilities, National Journal, Oct. 17, 2012, available at
http://www.nationaljournal.com/congress-legacy/capitol-poses-serious-obstacles-for-people-with-disabilities-20121017
2. District Judge in LA Certifies Class of Prisoners with Disabilities
On October 15, 2012, U.S. District Judge Dean Pregerson certified a class of prisoners with disabilities, which could include thousands of inmates in total. The class, which alleges poor conditions for inmates with disabilities in Los Angeles County Jails, may also include future inmates with disabilities, according to the American Civil Liberties Union Foundation of Southern California. The advocacy group is representing the plaintiffs along with Disability Rights California, the Disability Rights Legal Center, and Winston & Strawn. The lawsuit originates from a May 2008 complaint filed against the Los Angeles County Sheriff's Department and Sheriff Leroy Baca seeking accommodations under the American with Disabilities Act, federal statutes, and the Eighth and 14th Amendment of the U.S. Constitution.
The plaintiffs allege that the jails are inaccessible to individuals with mobility impairments. A lack of wheelchair accessible toilets is among one of the worst violations. In addition, Winston & Strawn attorney Stephen Smerek adds, "Those who complain are often thrown into solitary confinement as a punishment." Jessica Price, ACLU attorney, stated that the conditions in the L.A. County jails are "absolutely barbaric" for inmates who use wheelchairs.
Full Story: Matt Reynolds, Disabled Prisoner Class Certified to Sue LA, Courthouse News Service, Oct. 18, 2012, available at
http://www.courthousenews.com/2012/10/18/51420.htm
3. Massachusetts Physician Assisted Suicide Ballot Measure Defeated
On November 7, 2012, a Massachusetts ballot measure that would have legalized doctor-assisted suicide for terminally ill individuals was narrowly defeated. Fifty-one percent of voters prevailed over the 49 percent supporting "Question 2." Disability groups along with medical and religious organizations opposed this measure because of its vulnerability to abuse. Supporters of the measure such as Death with Dignity argued that it contained adequate safeguards, such as a requirement that doctors not prescribe lethal doses of medication to depressed patients.
Disability rights activists oppose such measures and spoke before the Massachusetts joint Judiciary Committee in opposition to Question 2. This is because economic and family pressures can cause older people and people with disabilities to feel like they are a burden, which undermines the patient's free choice. Such a law would discriminate by singling out these individuals for assisted suicide while younger people and people without disabilities or different disabilities get suicide prevention services. Under this system, a member of Second Thoughts, a disability rights group, pointed out, "An heir can help make the request, sign as a witness and pick up the prescription. Once the lethal drug is in the home, no one will know if it's taken voluntarily. If the person changed their mind, if they struggled, who would know?" Massachusetts would have become the third state to allow physician-assisted suicide for terminally ill patients, along with Oregon and Washington.
Full Story: Mass. Doctor-Assisted Suicide Measure Fails, Boston.com, Nov. 7, 2012, available at
http://www.boston.com/news/local/massachusetts/2012/11/07/backers-mass-doctor-assisted-suicide-concede/oXZDcgOUbqwhlqzb63FSPO/story.htmlSee also: Wesley J. Smith, J.D., Special Consultant to the CBC, "Second Thoughts" Disability Rights Group Opposes Assisted Suicide in MA, Center for Bioethics and Culture Network, available at
http://www.cbc-network.org/2012/03/second-thoughts-disability-rights-group-opposes-assisted-suicide-in-ma/
4. DOJ Files Disability Discrimination Lawsuit Against the City of San Jacinto, California
On November 9, 2012, the Justice Department (DOJ) filed a lawsuit against the city of San Jacinto, California, alleging violations of the Fair Housing Act and the Americans with Disabilities Act (ADA). The lawsuit, filed in the U.S. District Court for the Central District of California, alleges that the city's zoning code has restricted the operation of group homes for people with disabilities. The zoning code prohibits group homes that are not licensed by the state and some group homes that are licensed from operating in any zoning district in the city, and restricts the operation in multi-family zones. The lawsuit also alleges that the city targeted homes for persons with disabilities in its enforcement of the code. This includes an incident in November 2008 in which city and county officials along with armed police officers appeared at homes unannounced and questioned residents with disabilities with a questionnaire that asked intrusive questions aimed at persons with mental disabilities.
This lawsuit originated when affected operators of group homes filed a complaint with the U.S. Department of Housing and Urban Development (HUD). It seeks an order prohibiting the city from enforcing its law in a discriminatory manner and failing to make reasonable accommodations. The suit also asks for monetary relief to compensate victims and a civil penalty for the city.
Full Story: United States Department of Justice, Press Release, Justice Department Files Civil Rights Lawsuit Against the City of San Jacinto, California, Alleging Discrimination Against Persons with Disabilities, Department of Justice Office of Public Affairs, Nov. 13, 2012, available at
http://www.justice.gov/opa/pr/2012/November/12-crt-1348.html
B. EDUCATION
1. U.S. Department of Education Changes Disability Discharge Rule
The U.S. Department of Education (Department) has enacted new rules that make it easier for students who acquire a disability to get their federal student loans forgiven. The new rules, which become effective July 1, 2013, recognize certain disability findings by the Social Security Administration as sufficient grounds to discharge student loans. Under the current law, borrowers who develop severe and lasting disabilities are entitled to get their loans forgiven, but these students must go through a separate inquiry in order to receive Social Security Disability Insurance benefits. This new rule will help students with disabilities avoid this double review of disability eligibility.
The new rule comes on the heels of a joint investigation by ProPublica and the Chronicle of Higher Education that found the Department's system to be "erratic, duplicative, and dysfunctional" and kept many eligible students with disabilities buried in debt. This investigation led Sen. Tom Harkin, D-IA, and Rep. George Miller, D-CA, to write a letter to the Department urging them to fix the disability discharge program. After proposing new rules in the Summer of 2012 and considering nearly 3,000 public comments that followed, the Department settled on these newly enacted rules.
Full Story: Sasha Chavkin, Education Department Adopts Crucial Reform for Disabled Borrowers, Nov. 15, 2012, ProPublica, available at
http://www.propublica.org/article/education-department-adopts-crucial-reform-for-disabled-borrowers
2. Students with Autism More Likely to Study Science, Technology
According to a new study in the Journal of Autism and Development Disorders, students with autism who attend college disproportionately chose majors in the areas of science, technology, engineering and math. While overall college enrollment among young people with autism remains low, the researchers found that about 34 percent of young people with autism who do attend two- or four-year colleges selected a major in science, technology, engineering or math. For students in the general population, the number is only 23 percent. The discrepancy was stronger in men with autism, who according to the study are 13 times more likely than women with autism to major in a science-related field. The researchers also expressed optimism that students with autism will have more job opportunities due to the growing importance of science in engineering in the global economy.
Full Story: Shaun Heasley, Tech, Science Fields a Draw for Those with Autism, Nov. 9, 2012, Disability Scoop, available at
http://www.disabilityscoop.com/2012/11/09/tech-science-autism/16825/
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Legal Battle Over Speak for Yourself App Coming to a Close
After months of legal disputes, the app Speak for Yourself will soon return to the Apple Store. According to the app's website, the app is an Augmentative and Alternative Communication (AAC) application which helps people with speech disabilities to communicate more easily.
Earlier this year, Prentke Romich Company, makers of various assistive technology devices, sued the creators of Speak for Yourself alleging that the product violated patents held by the company and Semantic Compaction Systems. Speak for Yourself stated that the claims were "baseless" and a group of parents of children with disabilities started a petition to dismiss the lawsuit. The petition has received over 5,000 signatures. Now the two sides have reached an agreement. Under the agreement, Speak for Yourself will license two patents and certain copyrights from Semantic Compaction Systems. In exchange, the lawsuit has been dropped. This means that the app will soon return to the Apple Store and will also soon become available on Android-powered tablets.
Full story: Michelle Diament, Once Banned, Special Needs App to Return, Disability Scoop, Oct. 16, 2012, available at
http://www.disabilityscoop.com/2012/10/16/once-banned-app-to-return/16655/
D. HEALTHCARE / BENEFITS
1. HHS Ensures Effective Communication Throughout Colorado's Memorial Health System
The U.S. Department of Health and Human Services, Office for Civil Rights (OCR) and Memorial Health System (MHS) in Colorado Springs, Colorado, both signed an agreement to ensure effective communication for persons who are deaf, hard of hearing, or have limited English proficiency (LEP). After receiving a complaint from a deaf individual, OCR conducted an investigation of MHS under both Section 504 of the Rehabilitation Act and Title II of the ADA, which require covered entities to ensure effective communication.
The investigation uncovered several issues related to language access and resulted in a voluntary resolution agreement to ensure effective communication with and to enhance the quality of services for individuals who are deaf, hard of hearing or have LEP. The agreement involves MHS taking critical steps towards improving access to appropriate communication services including "assessing and identifying the communication needs of patients and/or their companions; establishing and implementing policies to provide interpreter services within reasonable timeframes; developing and implementing language assistance complaint procedures; provide staff training; and conducting outreach to consumers." OCR will be monitoring MHS compliance for one year.
Full Story: HHS Office for Civil Rights, HHS Office for Civil Rights Ensures Effective Communication with Deaf and LEP Persons Throughout Colorado's Memorial Health System, HHS Bulletin, Nov. 2012, available at
http://www.hhs.gov/ocr/civilrights/activities/agreements/mhs_bulletin.pdf
2. A Regular Checkup Is Good for the Mind as Well as the Body
A regular mental health checkup is less common than a regular physical checkup, but can be just as beneficial. By periodically checking mental well-being, one can identify warning signs of common "illnesses" such as depression or anxiety, which are both highly treatable, especially when identified in the early stages. According to the National Institute of Mental Health, about 25% of Americans have some type of mental health problem each year, and 6% have severe disabilities like schizophrenia or major depression. Without access to proper care, individuals with disabilities may face hospitalization.
Symptoms of mental illnesses can be identified and diagnosed using screening tools, similar to that of physical illnesses. For instance, the P.H.Q.-9 is a screening tool that asks nine questions, looking at the patient's outlook and health habits for the past two weeks. Further, large employers are beginning to include mental health coverage as part of their health benefits package. However, 15% of employers in the US do not offer mental health benefits to their employees. This percentage is likely to decrease in 2014, when many of the Affordable Care Act provisions take effect.
Full Story: Douglas Jacobs, A Regular Checkup Is Good for the Mind as Well as the Body, The New York Times, Nov. 13, 2012, available at
http://www.nytimes.com/2012/11/14/your-money/the-importance-of-regular-mental-health-checkups.htmlSee also: Patient Health Questionnaire (PHQ-9), available at
http://phqscreeners.com/pdfs/02_PHQ-9/English.pdf
E. WORKFORCE
1. Rite Aid to Pay $250,000 to Settle Disability and Retaliation Discrimination Lawsuit
The U. S. Equal Employment Opportunity Commission (EEOC) charged Rite Aid with retaliating against one of its employees, Christopher Fultz. After the EEOC found a discrimination charge in his favor, Rite Aid illegally terminated Fultz because of his disability, epilepsy. Fultz filed the charge because he was denied a promotion based on his disability. Previously, Fultz worked at Rite Aid's Mid-Atlantic Customer Service Center in Perryman, Maryland for 10 years without his disability impacting his job.
After the EEOC's ruling, Rite Aid forced Fultz to undergo a medical exam with a doctor who deemed that Fultz was unfit to work, thus giving Rite Aid the justification they needed to fire him. Rite Aid ignored reports from Filtz's neurologist, a specialist in epilepsy, that stated Fultz's disability wouldn't impact his work. Rite Aid also did not investigate into workplace accommodations to assist Fultz on the job. Subjecting employees to medical examinations because of their disabilities and not providing reasonable accommodations violate the Americans with Disabilities Act (ADA). In addition to paying Fultz $250,000, Rite Aid must revise its policies to better serve its employees with disabilities and train the management in Perryman in procedures consistent with the ADA.
Full Story: Rite Aid to Pay $250,000 to Settle EEOC Disability and Retaliation Discrimination Lawsuit, EEOC, Nov 7, 2012, available at
http://www.eeoc.gov/eeoc/newsroom/release/11-7-12c.cfm
F. INDEPENDENCE
1. Disability Activists Protest Pennsylvania's Cuts to Community-Based Services
The disability rights group ADAPT gathered outside of the Welfare Building in Harrisburg, PA on October 16, 2012, to protest Governor Tom Corbett and Welfare Secretary Gary Alexander's policies that are eliminating home and community-based services in Pennsylvania. The crowd of over 200 protesters, including people from Pennsylvania and across the nation, came to Harrisburg to urge Governor Corbett's administration to use federal Community First Choice Option funds available to maintain home and community-based services, which allow people with disabilities to live in the community and in their own homes. After the protesters blocked entrances to the building, chanting for four hours, and seven arrests that took place when protesters tried to enter the building, Secretary Alexander's chief of staff Brendan Harris finally spoke to the protesters. Harris claimed that he was unfamiliar with the Community First Choice Option, so ADAPT members gave Harris some documents that would explain it to him. ADAPT insisted on a written commitment that Alexander and a representative from the governor's office would meet with the Pennsylvania Chapter of ADAPT at a later date.
Full Story: Jan Murphy, Disability Rights Advocates Arrested During Protest Outside Pennsylvania's Health and Welfare Building in Harrisburg, PennLive, Oct. 16, 2012, available at http://www.pennlive.com/midstate/index.ssf/2012/10/disability_rights_advocates_ar.html
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Disability Advocates File Suit Against NYC for Discriminatory Emergency Plans
On Tuesday, November 6, 2012, a federal judge filed an order certifying a class action brought by the plaintiffs, the Brooklyn Center for Independence of the Disabled and two New Yorkers with disabilities, Tania Morales and Gregory Bell. With this order, the class action can proceed against Mayor Bloomberg on behalf of approximately 900,000 people with disabilities living in New York City. The plaintiffs claim that New York City fails to accommodate people with disabilities during major disasters. The lawsuit was filed last year after Hurricane Irene and claims that New York City failed to ensure that emergency plans, shelters and transportation fully accommodate individuals with physical disabilities in violation of local and federal antidiscrimination laws. Attorneys for the plaintiffs say that many of the same problems existed recently during the evacuation for Hurricane Sandy. Martha Calhoun, an attorney for the city said, "The city's emergency plans have been carefully developed in order to effectively serve the needs of all New Yorkers, including individuals with disabilities." The trial for this case began on December 10, 2012.
Full Story: Joseph Ax, Judge Grants Class Action to Disabled Suing NYC, Thomson Reuters News & Insight, Nov. 8, 2012, available at
http://newsandinsight.thomsonreuters.com/Legal/News/2012/11_-_November/Judge_grants_class_action_to_disabled_suing_NYC/
H. INTERNATIONAL
1. New Employment Forum to Assist People with Disabilities in India
Persons with disabilities in India have a new and unique venue to explore employment and recruitment opportunities on the web. The new online portal, Jobability.org, caters to people with disabilities. The website serves as a virtual meeting place where people with disabilities can exhibit their capabilities, discuss common issues, and share resume documents. Jobability targets leading Indian companies to go through the posted resumes on the site and offer these candidates with disabilities appropriate vacancies.
The website was conceptualized by Leonard Chesire Disability, a charity based in the United Kingdom, as an "exclusive job portal" for people with disabilities in South Asian nations. Aruna Rangachar, National Director of Cheshire Disability Trust, who registered the site in India, says the portal's aim is to "break down the barriers that can hinder the access to employment and the professional growth rate of persons with disability." Jobability aims to serve as a meeting place for people with disabilities in India; Rangachar claims the site is a "good start to creating an inclusive society," which she believes "is our ultimate aim."
Full Story: Manthan K Mehta, Job Portal for Disabled People Launched, Oct. 22, 2012, available at
http://articles.timesofindia.indiatimes.com/2012-10-22/job-trends/34652513_1_leonard-cheshire-disability-disabled-people-website-targets
2. China Enacts Legislation Aimed at Improving Mental Health Concerns
For the first time in its recent history, China has adopted legislation to protect the rights of people with mental disabilities. The new regulation has been debated for more than two decades, and was enacted largely in response to years of accusations of mistreatment of persons with mental disabilities and misuse of China's psychiatric hospitals. According to the Xinhua state news agency, the law will "curb abuses regarding compulsory mental health treatment and protect citizens from undergoing unnecessary treatment or illegal hospitalization." The law is aimed to prevent both the inappropriate and over-usage of the nation's mental health facilities. Activists have long asserted that Chinese forces have silenced "dissidents, whistle-blowers, and petitioners" by sentencing them to compulsory sentences at psychiatric hospitals - often against the will of the individual being incarcerated.
Mental health advocates, including those from the United States, praise the new law but still claim it falls short of international standards because the legislation still allows for involuntary commitment without judicial review. However, for the 16 million people in China with severe mental disabilities, this law provides direction in an area previously ignored. Nicholas Bequelin, a researcher at Human Rights Watch, a New York-based advocacy group, makes clear that while the new law falls short of typical international standards, it still allows for "civil society to step in to monitor and press for improvement in the management of mental health in China."
Full Story: China Adopts Mental Health Law to Curb Forced Treatment, Oct. 30, 2012, available at
http://www.disabilitynewsasia.com/home-mainmenu-1/1243-china-adopts-mental-health-law-to-curb-forced-treatment.html
I. MISCELLANEOUS
1. Deaf Community Demands Apology from Chelsea Handler
Members of the Deaf community are demanding an apology from Chelsea Handler and the producers of the Chelsea Lately Show for mocking American Sign Language (ASL) and ASL interpreters. Mayor Bloomberg held a press conference about Hurricane Sandy which was broadcast with Lydia Callis interpreting next to him. After this press conference, Callis became a social media sensation. The Chelsea Lately Show featured a skit about Callis where a woman dressed like Callis "interpreted" Handler's words using meaningless gestures, not ASL. The National Association of the Deaf (NAD) wrote to Handler and her producers to express their disgust for how Handler mocked ASL and sign language interpreters. NAD said that Callis "served a valuable purpose in communicating the critical and urgent information during an emergency to everyone including those who are deaf and hard of hearing." However, NAD said that the woman in Handler's skit "gestured in an ugly fashion" that was a "totally offensive mockery of American Sign Language."
Callis also brought her own interpreter to an interview with CNN. During the interview she explained certain signs she used and her method of mouthing words as she signed in order to relay the mayor's messages to people throughout the Deaf community who rely on different modes of communication. Callis also said that she was surprised by all of the attention she had received. However, she said that if her signing brings attention to Deaf culture and sign language, then she thinks that is a beautiful thing.
Full Story: Carola Finch, Chelsea Lately Show Criticized for Portrayal of Sign Language Interpreter, Examiner, Nov. 2, 2012, available at
http://www.examiner.com/article/chelsea-lately-show-criticized-for-portrayal-of-sign-language-interpreterSee also: Alina Cho, NYC Sign Language Star Surprised by Fame, CNN, Nov. 16, 2012, available at
http://www.cnn.com/video/?hpt=hp_c2#/video/us/2012/11/16/tsr-pkg-cho-nyc-sign-language-star.cnn
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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Note to readers: News article links may require free registration for access, or may be active for a limited time before the respective news services archive them. Archived items may also be available for a fee. Products mentioned in this newsletter are for information only and do not constitute an endorsement.
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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