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
December 10, 2013
Volume 10, Issue 8
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. NYC Must Do More to Accommodate People with Disabilities during Emergencies
On November 7, Manhattan U.S. District Judge Jesse Furman found that New York City must do more to accommodate people with disabilities in its emergency plans. Although Judge Furman found that New York's plan was outstanding overall, it did not adequately accommodate people with disabilities in some respects, putting the City in violation of the Americans with Disabilities Act. Two disability advocacy groups brought the class-action lawsuit after tropical storm Irene forced evacuations in 2011 in New York. Superstorm Sandy further exposed many of the emergency plan's shortcomings. The judge found that the city's plan relied too heavily on public transportation. He cited the Metropolitan Transportation Authority's inability to evacuate people who use wheelchairs during Sandy as one example.
Judge Furman did not require specific changes to the emergency plan, but ordered the plaintiffs to meet with the city to try and fix the plan. Susan Dooha, one of the plaintiffs, was very excited with the court's decision. She stated, "We are convinced that this decision will set the stage for major changes in the way New York operates in a disaster." If the two sides are not able to agree on a strategy to fix the emergency plan, Judge Furman will hold a trial resulting in court-ordered changes.
Full Story: Marc Santora and Benjamin Weiser, Court Says New York Neglected Disabled in Emergencies, The New York Times, Nov. 7, 2013,
See also: Andrew Grossman: Disability Lawsuit Goes against City, The Wall Street Journal, Nov. 7, 2013,
See also: Tara Sonenshine, A Global Challenge: Aiding Those with Disabilities, CNN: Opinion, Oct. 21, 2013,
2. Student Sues Chiropractic College over Policy That Prohibits Blind Students
On November 5, the Iowa Supreme Court heard oral arguments on the landmark case, Cannon v. Palmer College of Chiropractic. The lawsuit arose when Aaron Cannon challenged Palmer College of Chiropractic's policy requiring all students seeking a doctor of chiropractic degree to possess a sufficient sense of vision. Aaron was a student at Palmer. However, his education was stopped because of the policy requiring vision. The case originated at the Davenport Civil Rights Commission, which ruled in Cannon's favor. However, the Iowa District Court for Scott County reversed the administrative court's decision and held that vision is an essential part of chiropractic education. Cannon appealed the court's decision to the Iowa Supreme Court.
Palmer College of Chiropractic claims that chiropractic students "must be able to view x-rays, MRIs, and other radiographs with their own eyes and cannot use a sighted reader to obtain the information being presented." The National Federation of the Blind (NFB), among many others, disagrees. Dr. Mark Mauer, president of the NFB, stated that the policy "blatantly discriminates against the blind." Dr. Mauer also said that "[b]lind individuals have successfully practiced as chiropractors for several decades" including many that have graduated from Palmer.
Full Story: Chris Danielsen, National Federation of the Blind Comments on Iowa Supreme Court Case Regarding Blind People Entering the Chiropractic Medicine Field, National Federation of the Blind, Nov. 4, 2013,
3. DOT Fines US Airways for Failure to Provide Wheelchair Assistance
On November 4, the U.S. Department of Transportation fined US Airways $1.2 million for failing to provide adequate wheelchair assistance to passengers in Philadelphia and Charlotte. US Airways was in violation of the DOT Air Carrier Access Act that requires airlines to provide free, prompt wheelchair assistance upon request to passengers with disabilities. The airlines' procedure for transporting passengers with disabilities was time consuming and sometimes led to missed connections. The DOT discovered the multitude of violations through a review of complaints filed by passengers about incidents at Philadelphia International Airport and Charlotte Douglas International Airport.
U.S. Transportation Secretary, Anthony Foxx, stated that "[a]ll air travelers deserve to be treated equally and with respect" and that the DOT will continue to make sure airlines comply with their rules. US Airways may use part of the $1.2 million fine to improve its services to passengers with disabilities beyond what is required by the DOT rules. For example, US Airways may use some of the fine to hire managers that will ensure the quality of the airline's disability services or provide compensation to passengers with disability-related complaints.
Full Story: DOT Fines US Airways for Failure to Provide Wheelchair Assistance to Passengers with Disabilities, United States Department of Transportation, Nov. 4, 2013,
See also: Department of Transportation, Aviation Enforcement and Proceeding Consent Orders, Regulations.gov, 2013,
4. NCD Releases Report on Experience of Voters with Disabilities in 2012 Elections
On October 24, the National Council on Disability (NCD) released a report about the experiences of voters with disabilities in the 2012 election cycle. The report used the experiences of nearly 900 voters with disabilities across the nation. The NCD initiated the report to observe the effects of the Help America Vote Act (HAVA), which was passed in 2002. The report found that voters with disabilities still face architectural, attitudinal, and technological barriers to voting.
The NCD reported that nearly forty percent of the respondents to their questionnaire encountered physical barriers, nearly forty-five percent of the respondents reported barriers involving the polling machine, and twenty percent said they were prevented from exercising a private and independent vote. The NCD made several recommendations to improve access to voting for people with disabilities. First, the NCD found that state and local elections officials should be held accountable for compliance with HAVA, the Americans with Disabilities Act, and other relevant voting laws. Further, the states should improve their voting equipment and adequately train election personnel and volunteers to assist voters with disabilities.
Full Story: NCD, Experience of Voters with Disabilities During the 2012 Election Cycle, National Council on Disability, Oct. 24, 2013,
1. National Expansion of Disability Studies Programming
In 2005, the Modern Language Association officially established "disability studies" as a recognized field of study. Today, there are at least 35 colleges and universities that offer such a program through graduate and undergraduate degrees, minors, and certificates. These credentials often validate programs that are "a nuanced understanding of disability that is not the tragic, scientific model but a progressive model of disability that is more empowering."
Universities interviewed for this article include Syracuse University, City University of New York School of Professional Studies, and the University of Illinois. Accordingly, the article notes that "Universities have long studied the disabled in medical and health care curriculums. But when the first disability studies program emerged at Syracuse University in 1994, it was a radical departure from the medical model that had dominated offerings for decades and had approached disability as a deficit that needed fixing."
Full Story: Cecelia Capuzzi Simon, Disability Studies: A New Normal, The New York Times, Nov. 1, 2013,
2. CDC Releases Food Allergy Guidelines for Schools
On October 30, the CDC released their first-ever guidelines for handling food allergies in students. The guidelines are voluntary. According to the CDC, it is estimated that 4-6% of children have food allergies and that 88% of schools have at least one student with such an allergy.
Examples of the new guidelines include training staff to use Epi-Pens when students have severe allergic reactions; ensuring that children who can use their own Epi-Pens can get to them quickly; ensuring that children with food allergies are not excluded from field trips, extracurricular activities, physical education, or recess; and designating food-free zones or allergen-safe zones within the school. The report also includes a list of symptoms that children who may be having an allergic reaction might say, such as "it feels like something is poking my tongue" or "my tongue feels like there is hair on it."
Full Story: Kim Painter, CDC Sets Food Allergy Guidelines for Schools, USA Today, Oct. 30, 2013,
See also: Tracy Miller, CDC Sets Children's Food Allergy Guidelines for Schools, New York Daily News, Oct. 31, 2013,
See also: Centers for Disease Control and Prevention. Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Education Programs. Washington, DC: US Department of Health and Human Services; Oct. 30, 2013,
3. Connecticut Schools Backsliding on Inclusive Education
In December, the Second Circuit Court of Appeals will hear arguments that the state of Connecticut has not complied with a settlement agreement that called for students with intellectual disabilities to spend more time with their non-disabled peers. This 2002 settlement was a result of a class action suit filed against the state in 1993. Improvements were seen following the 2002 settlement, but the state has been accused "that improvement has stagnated, and [that] the state is backsliding and failing to make sufficient progress toward the goals."
Under the agreement, the state agreed to pursue the following five goals for students with intellectual disabilities: (1) to increase the percentage placed in regular classes; (2) to reduce the disproportionately high rates at which certain groups were classified as intellectually disabled, such as by race, ethnicity or gender; (3) to increase the percentage of the school day spent with non-disabled peers; (4) to increase the percentage of students with intellectual disabilities attending their home school; and (5) to increase the percentage of students participating in extracurricular activities with non-disabled peers.
The backsliding is particularly evident in the rates of students with intellectual disabilities' placement in regular classrooms. For example, in 2011, "45 percent of intellectually disabled students spent 80 percent or more of their day in a regular classroom, down from almost 52 percent of students in 2010, 49 percent in 2009, and 48 percent in 2008."
Full Story: Michelle Tuccitto Sullo, 'P.J.' Lawyer Says Connecticut Backsliding on Special Education, New Haven Register News, Nov. 9, 2013,
See also: mbrackenbury, P.J. Case - Settlement Agreement, 2002,
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Art Museums Get Creative with Assistive Technology
In late October, the Metropolitan Museum of Art (The Met) had its first public exhibition of art made by blind and visually impaired artists in its "Seeing through Drawing" art classes. The Met is already known for being an accessible art museum, but with an increasing percentage of the population aging, art museums like The Met may provide more assistive technology in their museums. This exhibition sparked interest in the accessible technology in art museums throughout the country.
The Smithsonian Institution has instituted a new program for children on the autism spectrum or with an intellectual disability to arrive early to the museum to familiarize themselves with the materials, building, and exhibits. The Museum of Fine Arts in Boston has instituted a mobile multimedia guide that incorporates accessibility features for the vision or hearing impaired so that all visitors to the museum use the same devices and have the same access to materials. The Whitney Museum just implemented video tour blogs that are recorded in American Sign Language and captioned in English. Additionally, the Art Institute of Chicago is contemplating using 3-D printing to reproduce artworks to allow persons with Alzheimer's disease, for instance, to feel the texture and scale of such artworks without damaging the actual piece of art. Most notably, ByteLight software is being developed for widespread use in museums, which would allow visitors to interpret exhibits or navigate the museum by translating LED light location signals to smartphone apps.
Full Story: Tanya Mohn, Welcoming Art Lovers with Disabilities, NY Times, Oct. 25, 2013,
2. Department of Transportation Issues New Airport Rules to Aid Passengers with Disabilities
On November 4, the U.S. Transportation Secretary announced its new rules requiring airline websites and automated airport kiosks to be accessible to passengers with disabilities. These new rules are part of the Department of Transportation's efforts to ensure equal access to air transportation for all passengers under the Air Carrier Access Act of 1986.
The new rules also include the provision that airlines must simultaneously transport two manual, folding wheelchairs by either stowing wheelchairs in the cabin of the plane or by strapping them to a row of seats. These rules apply to U.S. and foreign airlines that market to U.S. consumers for travel to or from the United States.
Full Story: U.S. DOT, New DOT Rules Make Flying Easier for Passengers with Disabilities, U.S. Department of Transportation Press Release, Nov. 4, 2013,
See also: Department of Transportation, Nondiscrimination on the Basis of Disability in Air Travel: Accessible Automated Kiosks at U.S. Airports, Regulations.gov, Nov. 12, 2013,
See also: Econometric, Inc., Final Rule on Accessible Kiosks and Web Sites: Final Regulatory Analysis, Oct. 23, 2013,
D. HEALTHCARE / BENEFITS
1. 'Habilitation' Among New Health Care Benefits
As a result of the Affordable Care Act (ACA), "habilitation services" will now be provided for the first time, in private insurance plans. Habilitation services allow individuals with congenital defects or diseases to develop, learn, and live life fully. Examples of habilitation services include assistance with medication management, budgeting, grocery shopping, and personal hygiene skills. In contrast, such individuals may not need "rehabilitation services," which often aim to provide restoration to a former capacity.
In addition to providing habilitation services to the private sector, this component of the ACA is popular because of the relief it will give to financially-burdened school and Medicaid systems. However, advocates worry that insurance companies will make recipients choose between habilitation and rehabilitation or cap the number of therapeutic visits to which patients are entitled. "How all this plays out very much remains to be seen," said Daniel Brown, senior state policy analyst for the American Occupational Therapy Association.
Full Story: Michael Ollove, 'Habilitation' Among New Health Care Benefits, Disability Scoop, Oct. 25, 2013,
2. Obama Administration to Expand Mental Health Coverage
Most insurance plans will now have to offer mental health coverage equivalent to that of medical and surgical level needs because of regulations released by the Obama Administration last week. Now, pursuant to the updated regulations for the Mental Health Parity Act, deductibles, co-payments, and limits on doctor's visits have to be substantially the same as those offered for other traditional medical treatments. Additionally, under the Affordable Care Act, insurers will have to provide mental health care coverage in both its individual and small group plans. Mental health advocates have long awaited these rules. Kathleen Sebelius, U.S. Secretary of Health and Human Services, believes that these regulations have broken down barriers that previously stood in the way of "treatment and recovery services for millions of Americans."
Full Story: Michelle Diament, Feds Expand Mental Health Coverage, Disability Scoop, Nov. 11, 2013,
See also: Federal Register, Final Rules Under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008; Technical Amendment to External Review for Multi-State Plan Program, Federal Register: The Daily Journal of the United States, Nov. 13, 2013,
1. New Disability and Veterans Regulations for Federal Contractors
The Office of Federal Contract Compliance Programs (OFCCP) recently issued new affirmative action regulations and a comprehensive compliance manual under the Vietnam Era Veterans' Readjustment Assistance Act and Section 503 of the Rehabilitation Act. The regulations will not require contractors to amend affirmative action plans that are currently in place, but all plans created after the regulations go into effect on March 24, 2014, will have to be compliant.
With respect to "qualified individuals with disabilities," the regulations have several new requirements: (1) Prime contractors will have to include language of their affirmative action and compliance obligations in their contracts with subcontractors. (2) Contractors will have a seven percent utilization goal for the employment of qualified individuals with disabilities. (3) There are new data collection obligations to monitor the number of individuals with disabilities who applied and were hired in a yea. (4) The OFCCP will have access to contractor's records on- or off-site. And (5) best practices are included in the regulations and should be noted by contractors.
There has been some contention over the new regulations because contractors are told to "invite applicants to self-identify" at the "pre-offer phase" of the application process. This potentially violates the Americans with Disabilities Act and Section 503, which both limit an employer's inquiry about disabilities prior to employment. If, however, the purposes behind these regulations are realized, it is anticipated that 600,000 qualified individuals with disabilities will be hired, much needed data will be compiled with respect to individuals with disabilities in these fields, and greater focus will be on reasonable accommodations because of compliance evaluations.
Full Story: Fred W. Alvarez et al., United States: Expanding Compliance Obligations: What Federal Contractors Need to Know About OFCCP's New Disability and Veterans Regulations, Mondaq, Oct., 18, 2013, http://www.mondaq.com/unitedstates/x/269904/Government+Contracts+Procurement+PPP/Expanding+Compliance+Obligations+What+Federal+Contractors+Need+To+Know+About+OFCCPs+New+Disability+And+Veterans+Regulations
1. Minnesota Supporters Look to Build on Olmstead Plan
On November 1, Minnesota released its Olmstead Plan, which was met with guarded enthusiasm by many disability advocates. The Plan is a broad, ambitious outline to "improve long-term services for people with disabilities." The Plan was court-mandated and the result of a year-long cooperation among eight different state agencies. Currently, the Plan has been submitted to a federal judge for review. The main goal of the Plan "is to give people in the state's care more independence and greater agency over where and how they live and receive services." The top two initiatives of the Plan focus on employment and housing, by reducing the number of persons with disabilities working in shelters and living in large hospitals through increasing the number working in competitive-wage jobs and living in home- or community-based settings.
Pamela Hoopes, an attorney at the Minnesota Disability Law Center says that "the document lacks a basic accounting of how many people might be affected by some of the programs, . . . [but that] clearly, [it] is a work in progress." Lieutenant Governor Yvonne Prettner Solon supports the Plan stating that it is not "static" and is "meant to be a fluid plan." Governor Mark Dayton commended the agencies' work, stating "the plan would pave the way for Minnesota's disabled citizens to 'live with dignity, be valued members of their communities and make choices to improve the quality of their own lives.'"
Full Story: Mike Mullen, Supporters Look to Build on Olmstead Plan, Politics in Minnesota, Nov. 13, 2013,
See also: Minnesota DHS, Putting the Promise of Olmstead into Practice: Minnesota's 2013 Olmstead Plan, Minnesota Department of Human Services, Nov. 1, 2013,
2. Discrimination in Medical Transplants
This past August, the U.S. Department of Health and Human Services' Office for Civil Rights agreed to investigate a complaint that five-month-old Maverick Higgs' civil rights were violated when his doctors refused him as a candidate for a heart transplant due to his disability. Maverick was born with hypoplastic left heart syndrome, which is fatal without a series of three surgeries. After the first two surgeries failed, his parents were informed that he was eligible for a heart transplant. However, two days after receiving the news, Maverick was diagnosed with Coffin-Siris syndrome, which the doctors explained meant Maverick would grow up to have intellectual disabilities and developmental delays. Two days after the diagnosis, his parents were informed that Maverick was no longer eligible for a heart transplant because he would have a high risk for tumors and infections, causing the transplant to be too risky.
However, according to specialists, these risks did not exist. In a report by CNN, "families and advocates [stated], to avoid adverse public reaction, doctors are shrouding their transplant denials in medical excuses that some say are outright lies in order to avoid transplanting patients who will never be 'normal.'" After being denied by three different hospitals, Maverick was finally transferred to the Boston Children's Hospital where the new doctors were able to control Maverick's heart condition without the need of additional surgeries. While he may require a heart transplant in the future, his Coffin-Siris syndrome would not stand in the way, and he was able to go home after his near life-long hospital stay with new hope.
Full Story: Elizabeth Cohen, Disabled Baby Denied Heart Transplant, CNN, Nov. 30, 2013,
1. Guatemalan Health Ministry and Inter-American Commission on Human Rights Reach Agreement
After a year of negotiations, the Guatemalan Health Ministry (GHM) and the Inter-American Commission on Human Rights (IACHR) have reached an agreement to restructure Guatemala's mental health system including revising hospital policies regarding persons with mental illness. In 2011, Disability Rights International (DRI) began investigating Guatemala's treatment of persons with mental illness and filed a complaint with the IACHR, recording various issues with mistreatment of patients with mental illness. The complaint included reports of sexual assaults, beatings, excessive use of solitary confinement, infectious disease deaths, and psychiatric medication overdoses.
DRI's investigation led to this agreement between the GHM and IACHR. The agreement states that Guatemala will in the next two years establish a pilot program of community-based homes for persons with mental illness, which will reduce its long-term institutionalized population. General hospitals will have new inpatient psychiatric units, and outpatient care will include free medication for persons with psychiatric disabilities available at various community health centers. The agreement also calls for criminally charged psychiatric patients to be separated from other psychiatric patients. Lastly, Guatemala has agreed to introduce a law to provide new legal protections for persons with disabilities in 2014.
Full Story: John Rudolf, Where Mental Asylums Live On, NY Times, Nov. 1, 2013,
2. Scotland Proposes Assisted Suicide Bill
In early November, Member of the Scottish Parliament, Margo MacDonald, proposed a new bill before the Scottish legislature that would grant a legal right to assisted suicide. She has proposed a similar law in the past but believes this bill may pass with the public's now greater knowledge of the issue. However, the Scottish government does not support changing the law regarding assisted suicide, which presently allows for prosecution of those who aid in another's suicide. Other countries, such as Luxembourg, the Netherlands, Belgium, and Switzerland have legalized assisted suicide.
The bill would allow terminally ill persons or persons with deteriorative progressive conditions to seek assisted suicide. Anyone over the age of 16 would be required to inform the physician of their support for the principle of assisted suicide at least seven days prior to a formal request for aid in assisted suicide. After this request, a second professional opinion must be obtained and a 14-day "cooling off" period must commence. After a second request, a doctor would provide a licensed facilitator with a prescription for assisted suicide. The licensed facilitator could have no relationship with the patient. If after 14 days, the terminally ill person or person with deteriorative progressive condition were to choose not to use the prescription, it must be returned to the pharmacist.
Full Story: Andrew Black, MSP Margo MacDonald Launches New Assisted Suicide Bill, BBC News, Nov. 14, 2013,
See also: Margo MacDonald, Proposed Assisted Suicide Bill, Scottish Parliament,
1. Sephora Pulls 'Celebutard' Lipstick Shade amid Uproar
On November 6, following an online outrage, makeup company Sephora has pulled their lipstick shade named "Celebutard." This shade was part of the makeup line that Sephora produces with Kat Von D, tattoo artist from TLC's reality show "LA Ink." Other shades of lipstick from this line are also seemingly intended to be incendiary, including "Underage Red," "Lolita," and "Backstage Bambi."
Among the online protesters was "Glee" star Lauren Potter, who has Down syndrome. On her twitter account Potter stated, "Really [Sephora] celebutard? Not cool." Sephora has since apologized, stating, "It has come to our attention that the name of one shade of a lipstick we carry has caused offense to some of our clients and others. We are deeply sorry for that, and we have ceased sale of that shade both in our stores and online." Kat Von D seemed to make light of the backlash, tweeting, "At the end of the day, it's just a f- lipstick," before she deleted the tweet. Many disability advocates have campaigned against the use of the R-word due to its offensive nature to those with intellectual disabilities.
Full Story: Michelle Diament, Sephora Pulls 'Celebutard' Lipstick amid Uproar, Disability Scoop, Nov. 8, 2013,
See also: Ryan Gajewski, Glee Star Lauren Potter Slams Sephora's "Celebutard" Lipstick, Wet Paint, Nov. 5, 2013,
See also: Nicole Eggenberger, Kat Von D's Lipstick Pulled by Sephora Over "Celebutard" Name Backlash, US Magazine, Nov. 8, 2013,
2. Australian Designers Criticized by Disability Advocates after Launching their 'Retarde' Clothing Line
On November 18, more than 40 disability advocates protested with signs in front of the Australian store, Globalize, to stop selling the "shirts that hurt" and apologize. Globalize is selling t-shirts and sweatshirts with the work "Retarde" on the front, "which has been described as discriminatory and humiliating." One of the protesters commented, "The word retard, or retarde, only means one thing. It's a word that's used to bully. Kids are killing themselves, kids are committing suicide because they're being bullied." Other protesters held signs stating "hate speech is unacceptable" and "ditch the R word today."
Clayton Cross, the managing director for Globalize across South Australia, defends Globalize's decision to stock the "retarde" label by stating, "[protesters are] just some disgruntled mothers mollycoddling some children. . . . To be honest, I think everyone's got to harden up a little." The designers also defend their clothing stating, "We do not see why people would take offence, as this word is clearly not an English word. 'RETARDE' is a French verb used on our items, which means 'delayed' or 'held up.'" Paralympic cyclist Mel Leckie also defends the design and showed up to the protest wearing one of the offending shirts. However, Kelly Vincent of Dignity for Disability, believes that "people need to be more thoughtful about the negative images" this clothing line conveys.
Full Story: Caroline Winter, Adelaide Designers Come under Fire by Disability Advocates after Launching Their 'Retarde' Clothing Line, Yahoo News Australia, Nov. 19, 2013,
See also: Lauren Novak, Globalize Shop Owner at Centre of 'Retarde' T-Shirt Controversy Says Kids with Disabilities Need to Toughen Up, News.com.au, Nov. 18, 2013,
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