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
October 27, 2014
Volume 11, 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.
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. POP CULTURE: News and topics may vary
J. ANNOUNCEMENTS: Books, financial aid, and events
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A. CIVIL RIGHTS
1. Federal Laws Protecting the Rights of Voters with Disabilities
The U.S. Department of Justice provides guidance on how the ADA and other federal laws are in place to ensure fairness in the voting process for people with disabilities. This new document discusses how the ADA and federal laws apply to various aspects of the voting process. For example, it provides an ADA checklist for polling places to access their accessibility, as well as, polling place solutions for five common ADA accessibility problems.
Full Story: Press Release, U.S. Department of Justice, The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities (Sept. 2014), available at
http://www.ada.gov/ada_voting/ada_voting_ta.htm
2. Fairness of Employment Personality Test
In an effort to streamline the hiring process, employers, especially customer-service employers, have utilized online personality tests. The use of such tests has continued to increase and has nearly doubled over the past five years. Employers use the tests to assess the personality, skills, and cognitive abilities of job candidates. Such tests use to be taken well into the hiring process, and the results considered with their interviews and past experience. However, they are now used earlier in the hiring process and can screen out applicants before an employer views an applicant's resume.
Kroger, Home Depot, and PetSmart were among the seven companies accused of discrimination against applicants with mental health impairments through their use of personality tests. Investigation is under way by the Equal Employment Opportunity Commission (EEOC) as to whether personality tests used in the hiring process are discriminatory against people with disabilities. Testing companies have data from their own studies that indicates personality tests do not negatively impact job applicants based on their race or gender. But as to what impact personality tests have on persons with disabilities remains uncertain. EEOC officials, in part, are seeking to determine that despite an applicant's having the essential job skills, if personality tests exclude people with mental health impairments.
Full Story: Lauren Weber and Elizabeth Dwoskin, Are Workplace Personality Tests Fair, Wall Street Journal, Sept. 29, 2014, available at
http://online.wsj.com/articles/are-workplace-personality-tests-fair-1412044257Full Story: Paul Giorgio, Disabled Face Discrimination as Fake Service Dogs on the Rise, Graham Media Group, Oct. 19, 2014, available at
http://www.click2houston.com/news/disabled-face-discrimination-as-fake-service-dogs-on-the-rise/29202900
3. ADA Lawsuit Reaches Settlement with Detroit Metropolitan Airport
A lawsuit filed by two persons with disabilities, one who uses a wheelchair and another who is blind, reached a settlement with the Wayne County Airport Authority on issues of change in drop-off protocol. The settlement changed the drop-off location from the international arrivals terminal to the Ground Transportation Center. The Ground Transportation Center will receive a number of modifications, which include enhanced bus shelters and signage, a direct phone connection for passenger assistance, and an indoor information counter for service providers.
Full Story: Jackie Harrison-Martin, Detroit Metropolitan Airport Reaches Settlement in Americans with Disabilities Act Lawsuit, The News Herald, Oct. 17, 2014, available at
http://www.thenewsherald.com/articles/2014/10/19/news/doc54402386728fe349673640.txt
B. EDUCATION
1. Solicitor General to Give Input in Supreme Court Case Regarding "Stay Put" Provision
Under the IDEA school districts are required to provide a free appropriate public education (FAPE) to all students in accordance with the student's individualized education program (IEP). The IEP identifies the school in which the child is placed. The IDEA has a "stay put" provision, which says if there is a dispute over the placement of a child, then the child is to stay in the "then current" placement until the dispute is resolved. If the parent decided to move the child into a private school, they do so at their own financial risk of a ruling in the school district's favor.
The Third Circuit recently ruled that a school district is liable for the costs of private school tuition of a student during the "stay put" period. From 2006-2008 the child "E.R." received services at a public school. The parents moved E.R. to a private school because they were not satisfied with the services their daughter was receiving in public school. In 2009, an administrative hearing officer ruled that the school district did not provide E.R. a FAPE and ordered the district to reimburse the parents' tuition for the private school placement. In a subsequent case brought by the parents, the Third Circuit ruled that the school was liable for the costs of tuition during this "stay put" period from 2009-2011, because the administrative hearing officer's initial decision agreeing with the parents changed the child's placement to the private school for purposes of the "stay put" provision.
The Supreme Court has asked the Solicitor General to give input on the case before they decide whether or not to hear it.Full Case: M.R. v. Ridley Sch. Dist., 744 F.3d 112 (3d Cir. 2014), available at
http://caselaw.findlaw.com/us-3rd-circuit/1657953.htmlSee Also: Michelle Diament, Supreme Court Seeks Input on IDEA Case, Disability Scoop, Oct. 7, 2014, available at
http://www.disabilityscoop.com/2014/10/07/supreme-court-idea/19740/
2. Hawaiian Students with Special Needs Will Be Allowed to Make Up Denied Schooling
Students with special needs who were aged out of public school in Hawaii will be allowed to make up the services they missed after a recent ruling by a federal judge. A 2010 class action challenged the Hawaii law cutting off public education at the age of 20. In Hawaii, students with disabilities "aged out" at the age of 20, meaning they could not attend school if they were 20 years old at the start of the upcoming school year. The Ninth Circuit struck down the Hawaiian law, ruling that the IDEA allowed children with disabilities to attend school until the age of 22. The Court sent the case back to the district court to determine how the decision would be applied.
The district court judge subsequently determined that all students that could be covered by the law suit were allowed to return to school and make up for the time they missed. The State Department of Education has put together a list of every potential member of the class and sent out over 1,400 letters to students who can now continue their education. The education services will focus on job training and life skills and will be highly individualized to meet the needs of each student.
Full Story: Nanea Kalani, Former Students Offered Make-Up Special Education Services, Disability Scoop, Oct. 1, 2014, available at
http://www.disabilityscoop.com/2014/10/01/former-make-up-sped/19724/See Also: Press Release, Alston, Hunt Floyd, & Ing, E.R.K. v. Department of Education, Hawaii Class Action, available at
http://hawaiiclassaction.com/erk/
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Early Diagnosis of Asymptomatic Dementia
A recent study indicated that using a new magnetic resonance imaging (MRI) technique may enable individuals with dementia to be diagnosed before they become symptomatic. According to the World Health Organization 35 million people worldwide are affected by dementia, and this is expected to double by 2030. Early detection is important, as treatments are most effective during the early phases of dementia.
The current method used to screen for dementia is positron emission tomography (PET), which measures brain metabolism. The new technique, arterial spin labeling (ASL), measures brain perfusion, or the amount of blood that is able to get to the brain tissue. In the ASL study, all of the individuals who showed decreased perfusion with ASL MRI also showed reduced metabolism with PET. Researchers believe that ASL MRI could replace PET testing and serve as an alternative to neuropsychological testing.
Full Story: Radiological Society of North America, MRI Technique Detects Evidence of Cognitive Decline before Symptoms Appear, Science Daily, Oct. 7, 2014, available at
http://www.sciencedaily.com/releases/2014/10/141007092344.htm
2. Prosthetic Hand Closely Approximates the Sense of Touch
Researchers at Case Western Reserve University are developing prosthetics that will not only restore function, but will provide a tactile reconnection to the world. By stimulating the nerves in the hand that relay a sense of touch to the brain a person wearing the prosthetic has a close approximation of actual touch. In a person's lifetime an index of various sensations is compiled that is referenced to allow them to associate an input or touch with a certain sensation. The prosthetics currently in development operate on that premise and allow wearers to activate previously stored sensations in their memory as well as create new ones.
Full Story: Case Western Reserve University, Amputees Discern Familiar Sensations across Prosthetic Hand, Science Daily, Oct. 8, 2014, available at
http://www.sciencedaily.com/releases/2014/10/141008153624.htm
D. HEALTHCARE / BENEFITS
1. Wellness Incentive Programs Collide with ADA Accommodation Requirements
The Equal Employment Opportunity Commission (EEOC) has filed two lawsuits against Wisconsin companies for violating the ADA for ineffective application of workplace wellness programs intended to comply with the Patient Protection and Affordable Care Act (PPACA). The PPACA encourages employers to use results based incentives to drive better health management amongst employers. Many of the chronic conditions, like diabetes, obesity, hypertension and anxiety, facing employees also qualify as disabilities under the ADA.
Wellness programs, which reward activities like fitness, diet, or stress management, may not be accessible to employees who qualify as having a disability. This is because an employee with a disability may not be able to meet an incentive standard with or without a reasonable accommodation.
The EEOC also filed suit against Flambeau, Inc., in Wisconsin for threatening to terminate an employee's group health insurance, forcing the employee to pay full price if he did not complete a health risk assessment with biometric screenings. The EEOC pointed out that you cannot require these risk assessments and screenings of employees. Screenings must be voluntary, and shifting the entire cost of a health insurance plan would render the program nonvoluntary.
Full Story: Matt Dunning, EEOC Suits Contend Wellness Programs Violate Disability Law, Business Insurance, Oct. 12, 2014, available at
http://www.businessinsurance.com/article/20141012/NEWS07/310129941?tags=%7C307%7C309%7C70%7C303%7C257
2. Birth Control Options for Adolescents with Disabilities
The American Academy of Pediatrics issued a policy update on September 29, reminding doctors that adolescents with developmental disabilities need guidance about sex and contraception just as much as any other group of adolescents. Data show that adolescents with disabilities have similar levels of sexual behavior, which creates a similar need for counseling and support of healthy sexuality development.
This is the first American Academy of Pediatrics policy update that specifically addressed the unique needs of teens with disabilities. The academy is urging pediatricians to steer patients towards Intrauterine Devices and hormonal implants over other forms of birth control. Surgical solutions are rarely used and come with legal and ethical difficulties. Daily pills are discouraged as well because they require teens to remember to take them regularly. The group also encourages pediatricians to urge patients to use a condom each time they have sex.
Full Story: Michelle Diament, Birth Control Options Stressed for Teens with Disabilities, DisablityScoop.com, Sept. 30, 2014, available at
http://www.disabilityscoop.com/2014/09/30/birth-control-disabilities/19715/
E. WORKFORCE
1. National Disability Employment Awareness Month
October is National Disability Employment Awareness Month (NDEAM). It is a time to provide a national focus to disability employment issues and is meant to facilitate education and greater participation of employers in the hiring of people with disabilities. This national campaign began as "National Employ the Physically Handicapped Week" in 1945 and has grown in social consciousness and awareness since its inception. When the Office of Disability Employment Policy in the U.S. Department of Labor was established in 2001 it took over the management of the program and has continued to work to expand its reach and scope.
This year's theme is "Expect. Employ. Empower." Various federal agencies such as the Department of the Interior, Office of Surface Mining Reclamation and Enforcement, and the Bureau of Safety and Environmental Enforcement have partnered to sponsor trainings for their employees. The Library of Congress is celebrating by recognizing the contributions to the workforce by Americans with disabilities. At a state level, nonprofits like PathPoint in Santa Barbara, California, are partnering with professionals and employers to promote awareness and expand job opportunities for people with disabilities.
Full Story: Office of Disability Employment Policy, National Disability Employment Awareness Month: Expect. Employ. Empower., United States Department of Labor, Oct., 2014, available at
http://www.dol.gov/odep/topics/ndeam/index-2014.htmFull Story: Library of Congress, National Disability Employment Awareness Month, October 2014, available at
http://www.loc.gov/disabilityawareness/Full Story: Corinne Hayhurst, PathPoint Touts 'Expect. Employ. Empower.' for National Disability Awareness Month, Noozhawk, Oct. 19, 2014, available at
http://www.noozhawk.com/article/pathpoint_national_disability_employment_awareness_month_20141019
2. Local Nonprofit Facilitates Inclusive Employment
Bridges to Employment is a division of Alternatives, Inc., which provides services to several hundred people with disabilities in central New Jersey. Bridges to Employment is a nonprofit that helps people with disabilities find and keep jobs in an inclusive workplace. It is currently working with 211 people and has been able to find them employment at various businesses like Panera Bread, Marshall's, and Costco.
Bridges works by finding a person employment and then remaining in contact with him or her so that assistance can be provided if an issue of retention arises. Over the past 15 years they have a retention rate of a year or more with 80 percent of their clients.
Full Story: Dave Hutchinson, Bridges to Employment: Nonprofit Connects Disabled to the Mainstream, NJ.com, Oct. 20, 2014, available at
http://www.nj.com/somerset/index.ssf/2014/10/bridges_to_employment.html
F. INDEPENDENCE
1. Physical Therapy Is Enhanced by Virtual Reality
After receiving a $450,000 grant from the National Science Foundation, the University of South Florida has been using a computer assisted rehabilitation environment (CAREN) to help people with disabilities improve their balance, endurance, and mobility. CAREN can simulate many environments from driving a car to walking on a cobblestone path.
The research team at the University of Southern Florida is working on discovering even more ways CAREN can assist people with disabilities.
Full Story: KOB.com Web Staff, Virtual Reality Simulator Makes Strides in Physical Therapy, KOB-TV, LLC, Oct. 13, 2014, available at
http://www.kob.com/article/stories/S3588808.shtml#.VEAoOBYbiJQbSee Also: Anne DeLotto Baier, New Simulator Integrates Technologies for Interdisciplinary Research, Rehabilitation, USF Health, July 11, 2013, available at
http://hscweb3.hsc.usf.edu/blog/2014/07/11/new-simulator-integrates-technologies-for-interdisciplinary-research-rehabilitation/
2. NYC Subway Stations and Taxis Need More Accessibility
People with disabilities can access less than half of New York City's enormous public transportation system -- the Metropolitan Transportation Authority (MTA). As of now, only about 18% of the 468 subway stops are accessible. The MTA also provides a door-to-door service, known as "Access-a-Ride," that will transport people with disabilities, and this service costs the same as regular public transportation.
The MTA plans to make 100 main subway stops accessible by 2020, but the system still will be hard to navigate with these improvements. To assist travelers with disabilities, Disabled in Action board member Dustin Jones and designer Anthony Driscoll co-created an app called Wheely NYC. This app allows people to easily plot accessible subway trips and lists accessible stops that are in need of repair.
NYC's taxi system isn't much better. Of 572 taxis, only about four percent are wheelchair accessible, but the city plans to make half of them accessible by 2020.
Full Story: Dan Rivoli, Disability Access Improvements to NYC Subway Stations and Taxis Sought, amNewYork, Oct. 12, 2014, available at
http://www.amny.com/transit/disability-access-improvements-to-nyc-subway-stations-and-taxis-sought-1.9495992See Also: Wheely: An Accessible Guide to New York City, available at
http://www.wheelyapp.com/See Also: Guide to Access-A-Ride Service, Metropolitan Transportation Authority, available at
http://web.mta.info/nyct/paratran/guide.htm
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Disaster Preparedness Litigation Following Hurricane Irene Ends in Settlement
In November 2013 Judge Furman ruled that New York City was liable for violating the ADA, the Rehabilitation Act, and New York City Human Rights Law following Hurricane Irene. The court found that the city did not ensure that people with disabilities were able to evacuate during an emergency. The city also provided insufficient shelters and did not inform people about the locations of emergency services.
On September 29, settlement papers were filed by the parties with the mutually agreed upon remedies. The city agreed to establish a minimum of 60 accessible shelters to accommodate 120,000 people with disabilities by September 2017. The city also agreed to have a fully operational, post-emergency plan by August 2017 including staff going door-to-door after a disaster to care for people by providing food, water, electricity, medical care, and equipment. Transportation improvements are also expected by the August 2017 deadline.
Full Story: Mark Hamblett, City Settles Litigation over Disaster Preparedness, New York law Journal, Oct. 2, 2014, available at
http://www.newyorklawjournal.com/id=1202672056170/City-Settles-Litigation-Over-Disaster-Preparedness
2. Webinar on Registry Creation -- It's Not about the List
The Pacific ADA Center has begun a webinar series on emergency preparedness, and the first presentation addressed registries. Registries are voluntary databases with information about members of the disability community and what kinds of specific needs a person has in the event of a disaster. Presenter, Dr. Paul Heavett, from the Center for Integrated Emergency Preparedness at Argonne National Lab spoke about the difficulties involved in creating and maintaining a registry. He drew upon lessons learned in Calhoun County, Alabama, a community that has been maintaining a registry for 10 years.
Full Story: Peter Heavett, Registries: It's not about the List, Sept. 11, 2014, Pacific ADA Center, available at
http://www.adaconferences.org/Emergency/Archives/See Also:
http://www.jik.com/d-rgt.html
H. INTERNATIONAL
1. Irish Study Urges Further Integration for Adults with Disabilities
In early October, the Irish Longitudinal Study on Ageing at Trinity College revealed that previous efforts to integrate adults with disabilities into the community have been unsuccessful. The study looked into the physical well-being and mental health of 30,000 people with intellectual disabilities. It found that two thirds of Irish adults over age 40 find it difficult to travel around their community. Further, there has been a decline in access to the community and community participation, despite an effort to integrate adults with intellectual disabilities into the community at large.
This effort primarily consisted of moving adults with intellectual disabilities into community homes. Mary McCarron, the principal investigator for the report, stated that the survey results raised serious concerns. She explained that while her organization had promised that "movement to the community would improve the quality of people's lives, . . . their experience may instead be one of social isolation, loneliness and new forms of institutionalisation." McCarron and the study advocated for further action including increased use of technology and increasing employment opportunities for individuals with intellectual disabilities.
Full Story: Ann O'Loughlin, More Integration for Those with Disabilities Urged, Irish Examiner, Oct. 1, 2014, available at
http://www.irishexaminer.com/ireland/cwidsnmhojkf/rss2/
2. 150th Country Ratifies United Nations CRPD
On September 15, 2014, Guyana, a country in South America, became the 150th country to ratify the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Maria Soledad Cistemas Reyes stated on behalf of the committee, "The 150th ratification is evidence of the commitment by the international community to promote and protect the human rights of persons with disabilities." According to Cistemas, the large number of signatories shows a widespread awareness that people with disabilities across the globe "suffer serious gaps in the enjoyment of their rights and that these gaps need to be addressed."
Countries from all regions of the world have ratified the CRPD since the United Nations' General Body adopted the treaty in 2006. The CRPD was designed to protect the rights of people with disabilities. Around 15 per cent of the world's population has a disability, including a disproportionate percentage of the world's poorest citizens.
Full Story: Disability Rights: Major Milestone as Ratification of UN Convention Reaches 150 States, United Nations Human Rights, Sept. 15, 2014, available at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15029&
I. POP CULTURE
1. Social Media Aids Families with Complaints about Special Education
Parents of children with disabilities are increasingly turning to social media to vent their frustrations with school districts, and they are getting results. Some parents do not know all of their rights under the IDEA, which some advocates believe weighs the process unfavorably towards the schools. To counter this imbalance, more and more parents are resorting to "social media shaming" to get results.
Amanda Taylor was struggling to get the services for her daughter who has spina bifada when she posted her story on the Facebook page of disability rights activist Jon Singer. Within five hours of her post, the school district contacted her hoping to figure out how to accommodate her daughter Alexis and properly assist her with her leg braces. Some schools believe there are better avenues for parents to take besides public recourse, but Singer feels parents should get others involved with their cause from day one.
Full Story: Marlene Sokol, When All Else Fails, Parents of Special-Needs Students Turn to Social Media, Tampa Bay Times, Sept. 27, 2014, available at
http://www.tampabay.com/news/education/k12/when-all-else-fails-parents-of-special-needs-students-turn-to-social-media/2199766
2. Kansas City Chiefs Running Back Discusses the Impact of His Learning Disability
During the 2013 NFL season, Jamaal Charles accounted for over 1,900 all-purpose yards, which was the third most in the league. However before being an all-pro running back and an All-American track star at the University of Texas, Charles was a kid in southeast Texas with a learning disability. Charles struggled with reading and was embarrassed in class and at home when family members would try to help him with his homework. When Charles was in the third grade, his teachers became concerned and he was assessed. The results showed Charles had a severe learning disability and would need special education services.
Charles became very self-conscious, hiding from friends as he went to class. However, his learning disability allowed him to compete in the Special Olympics as a child, which opened the door to the life he would go on to lead. Charles's experience in the Special Olympics led to a love for track. His success on the track led to him feeling confident for the first time in his life Charles acknowledges that if he had never fallen in love with track after his experience in the Special Olympics, then he might be living at home looking for a regular job instead of pursuing his dreams as a professional football player.
Full Story: Jeff Chadiha, E:60 Jamaal Charles, ESPN, Sept. 30, 2014, available at
http://www.youtube.com/watch?v=g8scKjJSktwSee Also: Kyle P, Chiefs' Jamaal Charles Admits to Mental Disability, Empty Lighthouse, Sept. 30, 2014, available at
http://emptylighthouse.com/chiefs-jamaal-charles-shines-despite-mental-disability-1842192124
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.
Calls for Papers and Proposals
Scholarships, Fellowships, and Events
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.; and Associate Editors Danielle Morrison, Nathan Pearson, Tesla Goodman, Philip Ross, Douglas Curwin, and Kate Battoe.
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