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
June 24, 2015
Volume 12, Issue 6
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: ADA, Section 504, CRPD Ratification
B. WORKFORCE: Workforce Innovation and Opportunity Act, Vocational Rehabilitation
C. EDUCATION: Special Education, Youth Transition, Postsecondary Education, & Outcomes
D. HEALTHCARE: Access, Services, Benefits, and the Affordable Care Act
E. TECHNOLOGY: Assistive, Information, and Communication Technologies
F. EMERGENCY PREPAREDNESS: Disaster Preparation, Mitigation, and Response
G. INDEPENDENCE: Community Integration
H. INTERNATIONAL: Topics Outside the United States
I. POP CULTURE: News and Topics Vary
J. EVENTS AND FUNDING: Conferences, Calls for Proposals, Papers, and Presentations
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A. CIVIL RIGHTS
1. SCOTUS Declines to Decide If Title II Applies to Police Bringing Suspects into Custody
In a home for individuals with mental illness, officers entered the room of Teresa Sheehan to take her into psychiatric care. When she threatened officers with a knife, she was pepper sprayed. When she refused to drop the knife, officers shot her multiple times. She survived. The question arising from this case (City of San Francisco v. Sheehan) is whether Title II of the ADA requires police officers to accommodate suspects with disabilities who are armed, violent, and mentally ill when bringing them into custody. The Ninth Circuit ruled that the ADA applies to arrests, and a jury should decide if there should have been an accommodation, such as engaging in nonthreatening communications or allowing time to pass to defuse the situation.
The U.S. Supreme Court heard the case but declined to decide on the ADA question because they felt there was no clear dispute over the issue. The Court expected the city would argue that Title II does not apply to officers facing an armed and dangerous individual. But instead, the city argued that Sheehan was not qualified for an accommodation because she posed a threat that could not be eliminated by modifications of policies. The Court dismissed the question, but did rule that the officers in the situation were entitled to qualified immunity.
Full Opinion: City and County of San Francisco, California v. Sheehan, slip op. (U.S. May 18, 2015), available at
http://www.supremecourt.gov/opinions/14pdf/13-1412_0pl1.pdfFull Story: Lisa Coronen, SCOTUS Didn't Decide If ADA Applies to Disability Arrests, National Conference of State Legislatures, May 20, 2015, available at
http://www.ncsl.org/blog/2015/05/20/scotus-didnt-decide-if-ada-applies-to-disability-arrests.aspx
2. DOJ Looks to Join Lawsuit Against University over Software Accessibility
The Department of Justice is looking to join a student with vision impairments in a lawsuit against Miami University of Ohio. The suit claims the school's website and licensed software are inaccessible to students with disabilities. Specifically the student feels the software used is incompatible with screen readers, and tactile graphics.
The issue here involves software providers. But according to Chris Danielsen, the director of public relations for the National Federation of the Blind, the "only mechanism we have to address this" is a lawsuit against the universities who are paying these providers. Daniel Goldstein, a disability rights lawyer, says universities can influence the content provider market by requiring companies to detail how they will make their software accessible to students with disabilities. Goldstein added that eventually these lawsuits could result in accessibility becoming a competitive advantage for software content providers. The Justice Department has recently involved itself in similar lawsuits with Louisiana Tech University and the online course provider edX.
Full Story: Carl Straumsheim, Software Accessibility Suit, Inside Higher Ed, May 14, 2015, available at
https://www.insidehighered.com/news/2015/05/14/justice-department-moves-intervene-disability-discrimination-lawsuit
3. Driving Service Uber Claims Disability Laws Do Not Apply to Them
Uber is an app were customers can schedule a car to pick them up and drive them to their destination. The company has been the part of a number of disability related lawsuits in recent months. These suits come from allegations that the company discriminates against customers who are blind or use wheelchairs. However, Uber claims that because it is a technology company, not a transportation service, it does not come under the jurisdiction of the ADA. Many advocates believe that Uber, along with other similar "ride sharing" applications, is exploiting a gray zone between regulations of technology and regulations of transportation. Uber describes its drivers as independent contractors who are not subject to the company's control.
Full Story: Nina Strochlic, Uber: Disability Laws Don't Apply to Us, The Daily Beast, May 21, 2015 available at
http://www.thedailybeast.com/articles/2015/05/21/uber-disability-laws-don-t-apply-to-us.html
B. WORKFORCE
1. More People with Disabilities Employed in May
Figures from the U.S. Department of Labor's monthly employment report indicate that more Americans with disabilities were employed in May than the month prior, though the unemployment rate for this population remained largely unchanged at 10.1 percent. This suggests that as more people with disabilities went to work, more people with disabilities also starting looking for work. Meanwhile, the Labor Department reported that 280,000 jobs were added to the economy as a whole, and the unemployment rate for the general population remained steady at 5.5 percent.
The federal government has been tracking employment for people with disabilities since October 2009. There is not yet enough data compiled to establish seasonal trends among this population, so statistics for this group are not seasonally adjusted. Reports are released monthly.
Full Story: Shaun Heasley, Disability Employment on the Rise, disabilityscoop.com, June 5, 2015, available at
http://www.disabilityscoop.com/2015/06/05/jobs-may-15/20358/
2. On Demand Employment Affects Workers Comp and Health Insurance Benefits
Experts urge that workers compensation needs to evolve to keep up with today's growing on-demand economy. Some say new technology that matches workers and jobs faster than ever before frees workers from the bonds of centralized and hierarchical institutions. As on-demand companies such as ride-sharing firm Uber, room / home rental firm Airbnb, and crowd-sourced invention business Quirky become more popular among workers, creating new definitions of workplace accidents and injuries will become more important.
On the contrary others say that jobs are being reduced to nothing but freelance temporary gigs. Some experts foresee the on-demand economy could mean the end of workers comp, retirement benefits, sick pay, maternity leave, overtime, minimum wages, health insurance, liability coverage and employment stability in general. The compensation models offered by the on-demand employment expose gaps in social security insurance (SSI), which might make it harder for workers with disabilities to collect SSI. The gaps this compensation model causes in workers compensation may also create problems for workers who become injured on the job causing both disability and further financial hardship.
Full Story: Stephanie Goldberg, Shift to On-Demand Workforce Exposes Gaps in Disability Insurance, Business Insurance, May 24, 2015, available at
http://www.businessinsurance.com/article/20150524/NEWS08/305249982/shift-to-on-demand-workforce-exposes-gaps-in-disability-insurance?tags=%7C309%7C70%7C92%7C304
3. Stress Caused by a Manager Is Not a Disability under California Law
Particularized stress caused by a manager is not considered a disability under California's Fair Employment and Housing Act. The Plaintiff, Michaelin Higgins-Williams, was a clinical assistant for Sutter Medical Foundation. She reported to her doctor that she was stressed over her interactions with her manager and she was diagnosed with "adjustment disorder and anxiety." Ms. Higgins Williams was granted stress-related leave under the Family Medical leave Act and the California equivalent. She exhausted the permissible amount of leave under those acts.
When Ms. Higgins-Williams returned from leave, she alleged she suffered a panic attack after being grabbed by her manager and was yelled at. She was granted another leave. Higgins-Williams did request an accommodation be made where she could work under a different supervisor. This accommodation was denied, and she said she would try to work under him again. When Higgins-Williams returned to work for the same manager, Sutter eventually terminated her employment. She alleged that she was unjustly terminated based on her disability. The Court ruled that inability to work under a particular supervisor does not constitute a disability under the California Fair Employment and Housing Act.
Full Story: Karen E. Wentzel, Employee Stressed out by Manager Is Not Disabled, May Be Terminated, National Law Review, May 31, 2015, available at
http://www.natlawreview.com/article/employee-stressed-out-manager-not-disabled-may-be-terminated
C. EDUCATION
1. Department of Education Encourages More Inclusion in Preschools
According to the U.S. Department of Education, more than half of children with disabilities attending preschool receive their special education or related services in a segregated environment. The Obama administration called this troubling in a recent statement and wants to see more children with disabilities participating in classrooms with other students who do not have a disability. Federal agencies are asking states to create task forces that are specifically focused on early childhood education/inclusion. The federal agencies involved have said that it is their vision that all Americans be included in all facets of society throughout their lives. This begins with early childhood programs and continues throughout school and employment. The policy statement is not legally binding, but it references IDEA requirements as a way to encourage more development in the area.
Full Story: Michelle Diament, Feds Call for Greater Inclusion in Preschools, DisabilityScoop, May 19, 2015, available at
http://www.disabilityscoop.com/2015/05/19/feds-inclusion-preschools/20318/Full Statement: U.S. Departments of Education and Health and Human Services, May 15, 2015 available at
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/inclusion-policy-executive-summary-draft-5-15-2015.pdf
2. Texas School Districts Alleged to Force Special Education Students Out of School
Thirteen school districts in Texas are mentioned in a complaint filed by the disability advocacy groups, Disability Rights Texas, the National Center for Youth Law, and Texas Appleseed. The complaint alleges that these school districts have been using truancy laws to take students with disabilities off of their rolls. More specifically, by referring the students to court for failure to attend school, the district is forcing the children out of their regular education programs in violation of IDEA.
The advocacy groups say that children in need of special education and related services miss school more often because those services are not being provided. The increased absence can lead to truancy charges. The groups also claim that once there is a threat of criminal truancy charges or fines, families are often compelled to accept deals requiring them to withdraw their children from schools. Over 1,200 students between 2010 and 2013 were ordered to drop out by Texas courts. Many other students were pushed into alternative schools or homeschooling. The groups bringing the complaint are asking for an independent investigation and administrative remedies at the state level.
Full Story: Michelle Diament, Schools Accused of Forcing Out Special Education Students, DisabilityScoop, May 29, 2015, available at
http://www.disabilityscoop.com/2015/05/29/schools-accused-forcing-out/20344/See Also: Jeff Cramer, Complaint Alleges Abilene ISD Discriminates Against Special Ed Pupils, KTXS ABC, June 1, 2015, available at
http://www.ktxs.com/news/aisd-named-in-complaint-alleging-district-forced-special-ed-students-to-drop-out/33346062
D. HEALTHCARE
1. Disability Advocates Write a Letter Asking for a Total Ban on Electric Shock Therapy
In April of 2014 the Food and Drug Administration (FDA) held a hearing on the use of electric shock devices used on people with disabilities for behavior modification. In the 2014 hearing the agency found that evidence was insufficient to show any meaningful benefit and even presented unreasonable risk. Since then no action has been taken.
There is currently one facility in Massachusetts that is believed to be the last center administering electric shocks for what they define as life threatening behavior disorders. On June 4, 2015, almost 70 disability rights advocates wrote a letter to the FDA urging for action to place a total ban on these devices. The FDA has acknowledged the letter and declined to comment at this time.Full Story: Michelle Diament, Disability Advocates Urge FDA to Ban Shock Devices, disabilityscoop.com, June 9, 2015, available at
http://www.disabilityscoop.com/2015/06/09/disability-ban-shock-devices/20370/See Also: Access Living, et al., Letter to U.S Food and Drug Administration, Re: Docket No. FDA-2014-N-0238, disabilityscoop.com, June 4, 2015, available at
http://autisticadvocacy.org/wp-content/uploads/2015/06/2015-06-04-Letter-to-FDA-re-JRC.pdf
2. Plain English Diagnostic and Statistical Manual Set to Be Published
The American Psychiatric Association is releasing a plain English version of the diagnostic and Statistical Manual of Mental Disorders (DSM). The DSM is a manual used by clinicians to diagnosis mental health disorders. The manual defines what mental disorders are recognized in the field and list typical symptoms associated with these disorders to help clinicians diagnose patients. The manual has previously been written only with the clinicians in mind, and as a consequence the language is complex and medically technical. The DSM is heavily used among clinicians to diagnosis mental health disorders as well as by health providers to determine insurance coverage.
A plain English version of the DSM is needed so that people diagnosed with mental health disorders and their families can better understand their diagnosis. Plain English means using less technical and complex language, written for audiences who are not medical professionals.
The plain English manual will offer several benefits. First, it allows families and people with mental health disabilities to better understand their disorders. Secondly, it helps families and people with mental health disabilities to have the necessary understanding of mental health conditions to be able to negotiate with insurance companies. This will aid in discussions with health insurance carriers and with understanding loved ones' unique outlooks. The manual is also intended to provide straightforward information and prevent people from feeling as if they need to access misleading information on the Internet.
Full Story: Lisa Gilliespie, Psychiatrists Unveil Plain English Guide to DSM, May 5, 2015, available at
http://www.disabilityscoop.com/2015/05/05/psychiatrists-plain-dsm/20265/
E. TECHNOLOGY
1. Google Funds Accessibility Initiative
Google.org, the charity section of Google, is offering $20 million to non-profit organizations that develop innovative assistive technology to increase independence for people with disabilities. The company is encouraging individuals with disabilities to suggest problems that they would like to have addressed with the grant money.
Two non-profit organizations are already involved in this project, dubbed the "Google Impact Challenge: Disability." The Enable Community Foundation provides people with low-cost prosthetics by using 3D printers, and World Wide Hearing plans to develop an inexpensive hearing loss test that can be used on smartphones.
In addition, Google intends to make all its merchandise universally accessible and develop new products that assist people with disabilities. Some examples of their current projects are the development of self-driving cars, and Liftware, a utensil designed to help individuals with hand tremors eat more easily.
Full Story: Shaun Heasley, Google Putting up Millions for Disability Initiative, Disability Scoop, May 27, 2015, available at
http://www.disabilityscoop.com/2015/05/27/google-millions-disability/20337/See Also: Google, Google Impact Challenge, Google.org, June, 7, 2015, available at
http://get.google.com/disabilitiesimpactchallenge/#what-if
2. Fort Worth School District Promotes Communication via iPads
Three years ago, Texas's Fort Worth School District began an experiment by giving students with Down syndrome, autism, and other communication disabilities iPads to help them communicate. It began by giving iPads installed with the app Words for Life to 50 students. The impact was noticed very quickly by students like Travis Pilcher, a young man with autism. Prior to using an iPad, Pilcher couldn't talk and had frequent aggressive behaviors because of the frustration of not being able to communicate. Within months of receiving an iPad, Pilcher was communicating effectively by using the text-to-speech function in Words for Life and no longer had aggressive behaviors. Fort Worth began their communication program with 30 iPads. Because of its success, in April the school board agreed to buy 130 more.
Full Story: Yamil Bernard, Technology Breaks Silence for Nonverbal Students, Disability Scoop, May 26, 2015, available at
http://www.disabilityscoop.com/2015/05/26/technology-breaks-silence/20331/
F. EMERGENCY PREPAREDNESS
1. Emergency Announcements Made More Accessible on Mobile Devices
The Federal Communications Commission (FCC) put new rules into place that will allow people who are blind or visually impaired to access emergency announcements on cable or satellite providers' mobile apps. This is in accordance with the Twenty-First Century Communications and Video Accessibility Act of 2010.
When television providers precede emergency announcements with three beeps, people with visual disabilities can switch to a secondary audio feed to hear the announcement. A secondary audio program (SAP) is a service that lets people hear another audio stream instead of the primary one on TVs and VCRs that have SAP built in or on stand-alone SAP receivers. For example, the ABC provides a secondary audio feed in Spanish during "World News Tonight" and "Monday Night Football." Most stereo TVs and radios made after 1995 have SAPs built into them. The FCC's new rule requires that all mobile devices now must have that ability as well. In addition, cable boxes and other equipment that play TV programs must have secondary emergency audio feeds that are easily accessible.
Full Story: FCC, Disability Rights Office Headlines, Federal Communications Commission, May 28, 2015, available at
https://www.fcc.gov/encyclopedia/disability-rights-office-headlinesSee Also: Federal Communications Commission, FCC Takes Additional Steps to Make Emergency Information in TV Programming Accessible to Individuals Who Are Blind or Visually Impaired, Southeast ADA Center, May 21, 2010, available at
http://www.adasoutheast.org/news/articles.php?id=7791See Also: Access Dome, Information about Secondary Audio Programming, Access Dome, June 13, 2015, available at
http://www.accessdome.com/com-sap/sap.general.asp
G. INDEPENDENCE
1. Fighting Against Realty Companies for Community Integration
In Rodriguez v. Village Green Realty, the Rodriguez family filed suit under the Fair Housing Act against a realty company for denying the family's continued lease opportunity to continue leasing their place of residence in Saugerties, New York, because of their child's epilepsy and autism spectrum disorder. Village Green Realty told the family that the new owner was concerned about their child's medical needs and that they would not rent to the family. The federal district court found insufficient evidence of the child's disability. The Second Circuit, however, held that an impairment that limits a person's ability to acquire housing - or is simply perceived to limit that ability - constitutes a disability, and threw out the district court's decision.
The Rodriguez family moved to another town because of the lawsuit and have obtained stable housing, explained Michael Allen co-counsel for the family, to the Disability Law & Policy e-Newsletter. This case highlights how stigma about disability continues to impact where people choose to live and raises the question whether people with disabilities can fully experience community integration.
Full Story: Mark Hamblett, Fair Housing Disability Bias Lawsuit Revived by Circuit, N.Y. Law Journal, Jun. 3, 2015, available at
http://www.newyorklawjournal.com/id=1202728187903/Fair-Housing-Disability-Bias-Lawsuit-Revived-by-Circuit?slreturn=20150506195401See also: Rodriguez v. Village Green Realty, 13-4792-cv (2d Cir. Jun. 2, 2015), available at
http://www.ca2.uscourts.gov/decisions/isysquery/e14c2143-e7d0-4cc4-9dcc-969f4c641e38/1/doc/13-4792_opn.pdf
H. INTERNATIONAL
1. Venice Gondoliers Begin to Accommodate Wheelchairs
The beauty of a Gondola ride in Venice, Italy, has previously not been accessible to people using wheelchairs. Carrying people onto the Gondola, a boat that serves as the main method of transportation in Venice, is tricky and sometimes dangerous. When an engineer designed a motorized platform to help people with disabilities have access into Gondolas the city balked at the $120,000 price tag.
Most of the city's resources are allotted to preserving its history. Venice is more accessible than Milan with 80% of the historic sites accessible by wheelchairs. The program is expected to be funded by crowdsourcing efforts. The project is called "Gondolas for all."
Full Story: Christopher Livesay, Venice's Gondoliers Make Room for Wheelchairs, May 16 2015, available at
http://www.theaustralian.com.au/national-affairs/education/one-in-six-kids-fit-disabled-label/story-fn59nlz9-1227387355758
2. Oxford Alleged to Have Forced a Student Out Based on Her Disabilities
Oxford University is facing accusations that a student with disabilities was forced out of the school by denying her accommodations. Sophie Spector has several disabilities including dyslexia, attention deficient hyperactivity disorder, and obsessive compulsive disorder. School officials allegedly pressured her to go on medical leave. She claims that school officials made her exams more difficult to pass before she left on medical leave and on her return, and also refused to provide deadline extensions.
In a letter from a student welfare official the administration stated, "She would need the absolute maximum limit of whatever concessions are allowed. Why did we admit her?" The letter further referred to her disabilities as "histrionics" -- that is, exaggerated dramatic behavior. The Unity Law firm in London is taking the case.
Full Story: Laura Connor, Oxford University Student "Forced Out Because of Disabilities" After College "Denies Her Extra Time and Calls Her Histrionic," June 6, 2015, available at
http://www.mirror.co.uk/news/uk-news/oxford-university-student-forced-out-5834331
I. POP CULTURE
1. Mad Max: Fury Road Gives Refreshing Portrayal of Disability
Laura Vaughn wrote on her Tumblr account that she had "never seen a physically disabled, kickass, female lead character in a Hollywood movie ever," until she saw Charlize Theron play Furiosa in the new movie Mad Max: Fury Road. She applauds the effortless manner in which the movie portrays the character's disability (Furiosa was a fetal amputee). Vaughn notes that the character's disability, while clearly visible, was never a plot point, and just allowed to be. One of the overarching morals of the story is that disability does not have to be a barrier to ambition. The director shows a post-apocalyptic world filled with individuals with various physical and mental disabilities, as well as the frail and sick. However these individuals prosper in the society, helping others come up with creative solutions to their problems.
Full Story: Carman Tse, Why Charlize Theron's "Mad Max" Disabled Character is "Utter Perfection," Laist, May 21, 2015, available at
http://laist.com/2015/05/21/furiosa_rules.phpSee Also: Catherine Shoard, In Mad Max Dystopia, There's Room for All, The Guardian, May 12, 2015, available at
http://www.theguardian.com/commentisfree/2015/may/12/mad-max-dystopia-room-for-all
J. EVENTS AND FUNDING
Internships and Fellowships
Conferences
Webinars
Books
Call for Papers
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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 Philip Ross, Tesla Goodrich, and Kate Battoe.
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