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
January 15, 2014
Volume 11, Issue 1
The Disability Law & Policy Newsletter is a monthly publication that aims to inform disability advocates, scholars, and service providers of the most current issues in disability law, policy, research, best practices, and breaking news.
Dear Colleague:
Below is a topical overview of the items presented in this issue.
A. CIVIL RIGHTS: Americans with Disabilities Act (ADA), Sections
504 & 508 of the Rehabilitation Act, and state civil rights law
B. EDUCATION: Special education & youth transition to
successful postsecondary outcomes
C. TECHNOLOGY / TELECOMMUNICATIONS: Assistive, information,
and communication technologies
D. HEALTHCARE / BENEFITS: Social Security Income / Social Security Disability
Income / Medicaid & Medicare
E. WORKFORCE: Workforce Investment Act (WIA), Ticket to Work
and Work Incentives Improvement Act (TWWIIA), & Vocational Rehabilitation
F. INDEPENDENCE: News for and about the Independent Living
Movement
G. EMERGENCY RESPONSE / PREPAREDNESS: Disaster mitigation and preparedness news
H. INTERNATIONAL: News for and about disability topics
outside the U.S.
I. MISCELLANEOUS: News and topics may vary
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A. CIVIL RIGHTS
1. Supreme Court to Consider What Defines Intellectual Disability
The Supreme Court has agreed to hear a case involving Florida's standards for determining if someone convicted of a crime has an intellectual disability. The Court first ruled on the issue in its 2002 decision of Adkins v. Virginia, which prohibited states from executing anyone with "mental retardation." However, the Court left the determination of how to measure an intellectual disability to the states. Most states have used a three-pronged test that looks at if the individual, before the age of 18, had substantial limitations in intellectual functions and in adaptive behavior (or "street smarts"). However, under Florida law, any convicted criminal with an IQ over 70 is eligible for execution, if the sentence so warrants.
Freddie Lee Hall, on death row for a murder committed in 1978, is challenging the Florida standard as unconstitutional. Hall has scored in the mid-70s on IQ tests, and therefore under Florida law he is not an individual with an intellectual disability. However, in multiple hearings his family and longtime friends have testified about Hall's trouble reading, writing, and caring for himself. Advocates for Hall argue that the Court should require the states to use the nationally-accepted clinical definition of intellectual disability as provided by fifth edition of the Diagnostic and Statistical Manual of Mental Disorders.
Full Story: Maggie Clark, Supreme Court to Consider What Defines Intellectual Disability, Disability Scoop, Dec. 10, 2013,
http://www.disabilityscoop.com/2013/12/10/supreme-court-intellectual/18959/
2. Justices Deny Review of ADA Decision Upholding Use of Fitness for Duty Exam
On November 18, the Supreme Court denied to review a federal appeals court's upholding of a ruling that the Coca-Cola Company did not violate the Americans with Disabilities Act (ADA). The Court held that the ADA was not violated "by requiring a call center worker who alarmed his supervisor by his alleged workplace conduct to undergo a fitness for duty examination." In December 2007, Franklin Owusu-Ansah, a native of Ghana, was working as a quality assurance specialist when he complained to his manager, Tanika Cabral, about alleged national origin discrimination. Cabral reported Owusu's alleged alarming behavior of banging "his fists on a table and said 'someone is going to pay.'" After Cabral's report, Owusu was required to go on paid leave and undergo a fitness for duty examination. Coca-Cola would clear Owusu to return for work only after he completed a written personality test with results that showed he was "within normal limits." Owusu visited a psychiatrist but refused to answer questions about workplace issues or to sign a release allowing a psychiatrist to discuss Owusu's results with the consulting psychologist.
The Eleventh Circuit ruled the fitness for duty examination is "job-related and consistent with business necessity." In his appeal to the Supreme Court, Owusu argued that the Eleventh Circuit's reading conflicted "with the Equal Employment Opportunity Commission's interpretive regulations and enforcement guidance under the ADA." In their decision, the Eleventh Circuit interpreted "job-related" and "consistent with business necessity," to require "an employer to have a 'reasonable belief based on objective evidence' that 'an employee's ability to perform essential job functions will be impaired by a medical condition' or that the employee 'will pose a direct threat' to the health or safety of himself or others because of a medical condition." Although Owusu argued that there was "no objective evidence [to] indicate that he was unable to perform his essential job functions," the Supreme Court denied review of the Eleventh Circuit's ruling.
Full Story: Kevin P. McGowan, Justice Denied Review of ADA Decision Upholding Use of Fitness for Duty Exam, Bloomberg, Nov. 25, 2013,
http://www.bna.com/justices-deny-review-n17179880335/
3. Virginia under Renewed Pressure to Give Reparations for Those Sterilized under State Law
To date, Virginia has yet to approve paying reparations to the 7,325 individuals with mental or developmental disabilities or epilepsy who were forcibly sterilized following a 1924 state law that existed until 1979. Virginia rejected making these reparations it is thought because the state doesn't have the money. However, neighboring North Carolina, which had a similar law from 1929 through 1974, passed a law setting aside $10 million for reparations earlier this year. In both states, the number of sterilized individuals still living is unclear, but most of the procedures performed in Virginia were carried out in the 1940s or earlier. Executive director of the Christian Law Institute, Mark G. Bold, explains, "That's why I say time is short," as many of those involved are now elderly.
During the 2013 legislative session, Bold and others sought compensation of $50,000 per person. Bold originally began this legislation after reading Buck v. Bell, a 1927 U.S. Supreme Court decision that upheld Virginia's eugenics law, holding that society's right to sterilize people because of mental illness or intellectual disability was similar to its right to mandate immunization against infectious diseases. Bold was shocked by this case, both because of its parallels to the eugenics policies of Nazi Germany and its "relative obscurity in American history."
Full Story: Fredrick Kunkle, Virginia under Renewed Pressure to Give Reparations for Those Sterilized under State Law, Washington Post, Dec. 8, 2013,
http://www.washingtonpost.com/local/virginia-politics/people-sterilized-under-infamous-virginia-law-renew-effort-to-obtain-reparations/2013/12/08/10f0bc30-5c8a-11e3-bc56-c6ca94801fac_story.html
4. Florida City OKs Boy's Therapy Chickens
On December 18, the DeBary, Florida, city council unanimously voted to allow Ashleigh Hart to continue keeping three therapy chickens to help J.J., her 3-year-old son with autism. About two years ago, a doctor recommended that J.J.'s parents buy several chickens with hopes that they would help J.J.'s therapy, who was barely speaking, had difficulty socializing, and often threw temper tantrums because of his autism. J.J. and the birds quickly bonded and he now talks more often and remains calmer.
This month the city council voted to end their one-year trial "Urban Chicken Pilot Program" that allowed residents to keep chickens in backyard coops either for eggs or as pets. If this program were to end, the Harts would be forced to get rid of J.J.'s chickens or move to another city. However, Mark Nation, the Harts' attorney, threatened to sue the city, explaining that the city's ban on backyard chickens would violate the boy's rights under the Federal Fair Housing Act, Americans with Disabilities Act, and the Rehabilitation Act. As such, the council has allowed the Harts to keep up to three therapy hens in their backyard for J.J.
Full Story: Martin E. Comas, It's Official: City OKs Boy's Therapy Chickens, Disability Scoop, Dec. 19, 2013,
http://www.disabilityscoop.com/2013/12/19/its-official-chickens/18983/See also: Kelly Joyce, Autistic Boy Denied Extension for "Therapy" Chickens, My Fox: Orlando, Dec. 12, 2013,
http://www.myfoxorlando.com/story/24149430/debary-leaders-vote-to-end-chicken-pilot-program
B. EDUCATION
1. School District Settles Lawsuit Regarding Abuse to Students in Special Education
On December 18, a San Francisco Bay Area school district agreed to an $8 million settlement with the families of eight students with special education needs in an alleged teacher abuse case. School workers alleged that a former teacher committed abuses such as kneeing a child in the chest and pinning another to the ground. The students' families sued the school district and also alleged that the district failed to report earlier allegations of abuse against the teacher. The district released a statement that, although the legal aspects have been finalized, they "must continue to learn from this case and work to ensure that every child entrusted to our schools is educated in a safe environment."
Full Story: Matthias Gafni & Paul Burgarino, Antioch School District Settles Student Abuse Case for $8 Million, Contra Costa Times, Dec. 18, 2013,
http://www.contracostatimes.com/contracostatimes/ci_24754579/antioch-school-district-settles-student-abuse-case-8See also: Wired Services, $8M Settlement in Alleged Antioch Teacher Abuse of Special Education Students, NBC News, Dec. 9, 2013,
http://www.nbcbayarea.com/news/local/8M-Settlement-in-Alleged-Antioch-Teacher-Abuse-of-Special-Education-Students-236638811.html
2. Federal Budget Deal Could Help Reverse Recent Special Education Cuts
On December 10, Senator Patty Murray, D-Washington, and Representative Paul Ryan, R-Wisconsin reached a budget deal that is being considered as a step in the right direction to start reversing the recent budget cuts stemming from the sequestration. On December 3, a poll conducted by the National Coalition on Personnel Shortages in Special Education & Related Services showed that despite federal regulation that generally prohibits funding cuts from special education budgets, a vast majority of the respondents said that budget cuts had affected the delivery of special education services in their schools. At least half of the respondents said the overall budget cuts had translated into programmatic funding cuts for special education. This broad spending deal was quickly approved by the House of Representatives on December 12 and the Senate on December 18. This deal means that school districts will not have to cope with federal aid reductions, as in the 2013-14 school year, where 5 percent of federal aid was cut due to the sequestration.
Full Story: Allie Bidwell, Budget Deal Could Help Struggling Special Education Programs: Restoring Funding Is a 'Step in the Right Direction', But Needs to Go Further, U.S. News & World Report, Dec. 11, 2013,
http://www.usnews.com/news/articles/2013/12/11/budget-deal-could-help-struggling-special-education-programsSee also: Christina Samuels, Proposed Budget Deal Seen as 'Positive Step' for Special Education Aid, Education Week, Dec. 11, 2013,
http://blogs.edweek.org/edweek/speced/2013/12/proposed_budget_deal_seen_as_p.htmlSee also: Alyson Klein, Showdown Brews as Congress Turns Focus to K-12 Spending, Education Week, Jan. 2, 2014,
http://www.edweek.org/ew/articles/2014/01/02/15budget.h33.html?tkn=TUVFIzoQ6tnkEan4RcsA65TvPcQoQPpC4ahQ&cmp=clp-edweek
C. TECHNOLOGY / TELECOMMUNICATIONS
1. New Affordable Tablet for the Blind and Visually Impaired
This month National Braille Press, a Boston nonprofit, introduced the B2G-20, a tablet designed for blind or visually impaired users. The nonprofit states that this is the first affordable tablet for this audience.
The National Braille Press hopes that this Android-based device will increase literacy among the blind or visually impaired. The nonprofit installed speech recognition software to allow the user to engage in Braille tutorials to learn Braille. The tablet does not have a display screen but instead has a 20-character text field, which has small pins that move up and down to form Braille letters. The tablet also has an eight-key standard Braille keyboard for data input, GPS, Wi-Fi, optical text recognition, and a camera. The camera allows the user to take a picture of a sign or a menu and the software turns the text into Braille for the user.
Full Story: Jessica Van Sack, Tablet Solution in Sight, Boston Herald, Dec. 16, 2013,
http://bostonherald.com/business/technology/technology_news/2013/12/tablet_solution_in_sight.
2. New Voice Aid for Persons with Speech Impairments
This month the University of Sheffield introduced a prototype of an electronic voice aid for persons with impaired speech, called Vivoca. The device is intended to aid persons who have difficulty coordinating their speech muscles for communication.
On its color-coded menu the aid has a bank of phrases and words for the user to select from. The menu color-codes these words and phrases so that the user has only to say "green" or "blue" into the microphone. The device accounts for noisy surroundings with technology that is designed to recognize the user's voice commands. The developers of the aid hope that this device will give persons with speech impairments more independence.
Full Story: Neil Bowdler, Electronic Voice Aid Interprets for People with Impaired Speech, BBC News, Dec. 11, 2013,
http://www.bbc.co.uk/news/technology-25120697
D. HEALTHCARE / BENEFITS
1. 'Love Hormone' Shows Promise for Kids with Autism
On December 2, a study was published in the Proceedings of the National Academy of Sciences that suggests that a naturally-occurring hormone called oxytocin may improve socialization in children with autism. After receiving the hormone as an inhalant, the children were asked to complete a social and non-social task. Researchers then used "functional magnetic resonance imaging" to assess the children's brain responses during the activities. The findings suggest that the oxytocin temporarily affected sections of the brain associated with reward and emotion recognition. In particular those sections of the brain were more responsive with the hormone during social tasks. Researchers don't know if the hormone can be used long term but think that it may be used in behavioral and other therapies for children to maximize the effectiveness of the treatments.
Full Story: Michelle Diament, "Love Hormone" Shows Promise for Kids with Autism, Disability Scoop, Dec. 3, 2013,
http://www.disabilityscoop.com/2013/12/03/love-hormone-promise-autism/18931/See also: Pam Belluck, Oxytocin Found to Stimulate Social Brain Regions in Children with Autism, New York Times, Dec. 2, 2013,
http://www.nytimes.com/2013/12/03/health/oxytocin-found-to-stimulate-brain-in-children-with-autism.html?ref=health&_r=0
2. In Shift, Most States Increase Mental Health Spending
The National Alliance on Mental Illness reported that mental health budgets increased in 37 states this year after years of state spending cuts. Notably, among the states that increased their spending budgets are Texas and South Carolina. South Carolina has had some of the deepest cuts in recent years and Texas increased its spending by $259 million, the largest increase in history. In addition, many states have passed legislation to improve the early identification of mental illness in children as well as in improving laws pertaining to court-ordered treatment of those with mental illness.
Full Story: Michael Ollove, In Shift, Most States Increase Mental Health Spending, Disability Scoop, Nov.22, 2013,
http://www.disabilityscoop.com/2013/11/22/in-shift-mental-health/18915/
3. Worries Run High as State Outsources Disability Services
In January, Kansas will be the first state to switch to a managed care system that will consolidate all of the services for individuals with developmental disabilities in the state. KanCare, Kansas' Medicaid managed care system will be run by for-profit national insurance companies. However, families are concerned that the need for profit will disrupt or cut the care that their loved ones require. Louisiana and New Hampshire are considering moving in the same direction, though the success of the program in Kansas may affect their decision.
Many states have planned to move to this kind of care system for the elderly and those with physical disabilities, but the extensive care needed for those with developmental disabilities is the cause for this change in Kansas. Plan administrators said they are simply searching for a way to "provide solutions to states." According to Amerigroup (one of the nation's leading health benefits insurers) Kansas President Laura Hopkins, "There's no incentive ... to cut services, from a contract perspective or from a human perspective."
Full Story: Jenni Bergal, Worries Run High as State Outsources Disability Services, Disability Scoop, Dec. 6, 2013,
http://www.disabilityscoop.com/2013/12/06/worries-outsources-disability/18946/
E. WORKFORCE
1. Hospital Fired Employee for Using a Cane
The Equal Employment Opportunity Commission continues to hold employers responsible for failing to provide reasonable accommodations to employees. The Commission recently filed suit against a hospital in Washington D.C. that fired a medical assistant who required the use of a cane. The individual was medically cleared to return to work with the use of a cane, but the hospital refused to let her work, placed her on medical leave, and fired her when the leave expired. "The need for an assistive device should not be an automatic bar to employment," said an EEOC attorney.
Full Story: Richard B. Cohen, EEOC: Hospital Fired an Employee for Using a Cane, Mondaq, Dec. 11, 2013,
http://www.mondaq.com/unitedstates/x/280684/Discrimination+Disability+Sexual+Harassment/EEOC+Hospital+Fired+Employee+For+Using+A+Cane&email_access=on
2. Help Make Online Job Tools More Accessible to People with Intellectual Disabilities
The Office of Disability Employment Policy (ODEP) has initiated a dialogue to find more accessible ways for individuals with cognitive and developmental disabilities to navigate job-related technology. Participants will be able to share their ideas, comment, and vote on potential solutions. There are already many accessible technology standards in place with respect to accommodations for people with sensory and physical disabilities. Given the growing amount of work related activities that take place via some technological medium, ODEP recognizes that it is necessary to secure accommodations for individuals with cognitive disabilities as well.
Full Story: Official Blog of the U.S. Department of Labor, United States Department of Labor, Dec. 16, 2013,
http://social.dol.gov/blog/help-make-online-job-tools-more-accessible-to-people-with-intellectual-disabilities/
F. INDEPENDENCE
University of Massachusetts Boston and IBM have recently announced their plans to open a new nonprofit organization, a Collaborative Innovation Center, to increase accessibility in the workplace and on college campuses for people who have vision, hearing, and other impairments by devising new ways to use technological advancements. The center will focus on new technology, but will be working to create new policies as well.
William Kiernan, Dean and Research Professor of the newly formed UMass School of Global Inclusion and Social Development and one of the country's leading researchers on workforce issues facing people with disabilities, says, "All we are trying to do is level the playing field for people who want to participate in the community."
Full Story: Michael B. Farrell, UMass Boston, IBM Working on Tech Center for Disabled: Partnering to Bring Advancements, Help Create New Policies, The Boston Globe, Dec. 3, 2013,
http://www.bostonglobe.com/business/2013/12/03/umass-ibm-partner-tech-center-for-disabled/2VHnkBRZnXFU9dlNVanL0J/story.html
H. INTERNATIONAL
1. Fake Sign Language Interpreter at Mandela's Memorial Sparks Outrage
On December 10, a fake interpreter at Nelson Mandela's Memorial Service in Johannesburg, South Africa, garnered much criticism and outrage among the deaf community. This man was allegedly pretending to interpret using sign language while world leaders spoke on stage about Nelson Mandela. To demonstrate the inaccuracy of this "fake" interpreter's signs, The Limping Chicken, a U.K. deaf community news website, showed both the fake interpreter and the sign language interpreter which many television viewers observed in a small box on their screens to contrast the difference in their signs. The interpreter in the box was accurately interpreting what was being said whereas the on stage interpreter's actions and gestures were entirely different in form.
The fake interpreter, who has since been identified as Thamsanqa Jantjie, later claimed that he may have suffered a schizophrenic attach and has been admitted to the Sterkfontein Hospital, in Krugersdorp, South Africa. Jantjie has served as an interpreter for other events, charging $85 per day; however, most qualified sign language interpreters charge $125 to $165 per hour. As such, it has been speculated that Jantjie was hired because he offered the cheapest rate. Both the African National Congress and the South African government are looking into their hiring process.
Full Story: Mark Memmott, "Fake" Sign Language Interpreter Marred Mandela Memorial, NPR, Dec. 11, 2013,
http://www.npr.org/blogs/thetwo-way/2013/12/11/250179179/fake-sign-language-interpreter-marred-mandela-memorial.See Also: Alexander Smith, "Fake" Interpreter from Mandela Event Is Admitted to Psychiatric Hospital: Report, NBC News, Dec. 19, 2013,
http://worldnews.nbcnews.com/_news/2013/12/19/21969085-fake-interpreter-from-mandela-event-is-admitted-to-psychiatric-hospital-report?lite
2. Right-to-Die Case in England Reaches the Supreme Court
On December 16, the family of Tony Nicklinson, who has locked-in syndrome, and Paul Lamb, who is paralyzed as the result of a car accident, argued that the law should be changed to allow for assisted suicide in England. In England, it is not a crime to commit suicide but assisting someone in suicide could lead to up to fourteen years in prison. They argued that the law prohibiting assisted suicide was incompatible with the European Convention on Human Rights because it prohibited Nicklinson, Lamb, and others from exercising their right to choose the time of their death.
Specifically, Lamb argues that the law interferes discriminatorily with his right to a private family life under Article 8 of the Human Rights Act. He argues that there should be a defense available to any doctor who assists in a patient's suicide and that strict safeguards to prevent would be in place to allow for assisted suicide, including court sanctioning of the act. The case was unanimously dismissed at the Court of Appeals level. The Chief Justice stated that Parliament (i.e., England's legislature) represented "the conscience of the nation" when it came to addressing life and death issues, and therefore the courts have no jurisdiction to determine whether the law should be changed. At the Supreme Court level, there will be nine judges, rather than the normal five, on the panel overseeing the four-day hearing.
Full Story: Right-to-Die Challenge Reaches Supreme Court, BBC News, Dec. 16, 2013,
http://www.bbc.co.uk/news/health-25363947
I. MISCELLANEOUS
1. Adults on the Spectrum Land Hollywood Gigs
Makers of the recent film "American Hustle," contracted with a California nonprofit vocational center for help with post-production work. Exceptional Minds, the vocational center, is located in Sherman Oaks and has an animation studio for young adults with autism. Through their studies at Exceptional Minds, the students were able to apply their skills to help with the rotoscoping of American Hustle. Rotoscoping requires very detail-oriented animation techniques necessary for color correction and computer effects. The students not only earned job experience and a paycheck through this project, but will also have their names appear in the end credits of the film.
Full Story: Christian Villacorte, Adults on the Spectrum Land Hollywood Gigs, Disability Scoop, Dec. 3, 2013,
http://www.disabilityscoop.com/2013/12/03/adults-spectrum-hollywood/18933/
J. 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.
Book Announcements
Scholarships, Fellowships, and Call for Papers
Conferences and Events
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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 Alessandra Baldini; and Associate Editors Douglas Curwin, Jenna Furman, Danielle Morrison, and Susan Schneider .
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