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
May 4, 2016
Volume 13, Issue 4
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
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
A. CIVIL RIGHTS
1. Eighth Circuit Says "Obesity" Is Not a Disability Under the ADA
The United States Court of Appeals for the Eighth Circuit recently ruled that obesity is not a per se disability under the ADA. The 2009 amendments to the law were designed to broaden the definition of a disability to include a much larger spectrum of conditions. Despite these amendments, a panel of the 8th Circuit decided obesity is not included in this definition.
Melvin Morriss received a job offer from BNSF Railway. At his post-offer medical examination, doctors measured Morriss's body mass index (BMI) to be 40.9. BNSF withdrew their offer of employment because of a policy against hiring individuals with a BMI of 40 or higher. The company claims that these individuals likely develop other medical conditions that they would prefer not to deal with.
Morriss brought suit under the ADA in the Federal District Court for the District of Nebraska and appealed the district court's decision to the Eighth Circuit. The Eighth Circuit concluded that Morriss's obesity (by itself) did not constitute a disability. The court said for obesity or morbid obesity to be considered a physical impairment, it must result from a physiological disorder or condition. The Eighth Circuit's decision is in line with decisions on the issue of obesity by other circuits.
Full Story: Robin Shea, Is Obesity a "Per Se" Disability? One Court Says No, Employment & Labor Insider, Apr. 8, 2016, available at
http://www.employmentandlaborinsider.com/discrimination/is-obesity-a-per-se-disability-one-court-says-no/See Also: Blog Post, Despite 8th Circuit Ruling, Employers Should Tread Lightly Before Denying Employment to Obese Applicants, Knudsen Law Firm, Apr. 7, 2016, available at
http://www.knudsenlaw.com/despite-8th-circuit-ruling-employers-tread-lightly-denying-employment-obese-applicants/
2. Ohio Citizens Bring Suit Against State Over Lack of Community-Based Services
Disability Rights Ohio filed a class action lawsuit against the state claiming it is violating the ADA by failing to provide community-based services to individuals with developmental disabilities. These services are designed to help individuals enter into community living, or continue living at home under the care of their parents. The lawsuit alleges that Ohio does not provide these residential, employment, or day services in a timely manner for individuals with developmental disabilities. As a result, many individuals are forced to live in institutions. According to Disability Rights Ohio, the median wait time for the services at issue is 13 years. Kerstin Sjoberg-Witt is the advocacy director for the organization. She says they are not trying to shut down institutions but just want to expand the options available to individuals with developmental disabilities and their families.
Full Story: Sarah Buduson, Disability Advocates Allege Ohio Violates Americans with Disabilities Act, File Class Action Lawsuit, ABC Newsnet 5, Mar. 31, 2016, available at
http://www.newsnet5.com/news/local-news/investigations/disability-advocates-allege-ohio-violates-americans-with-disabilities-act-file-class-action-lawsuit
3. Accommodations May Be Required for Family Member with Disabilities in CA
A Court of Appeals (the second highest court) in California ruled that under state law an employer is required to make reasonable accommodations for the disability of an employee's family member. For many years, the employee had been given a scheduling accommodation to help administer dialysis for his son. When management changed, he was told he would no longer be given this accommodation. The employee brought suit under California's Fair Employment and Housing Act (FEHA), which states it is unlawful for an employer to discriminate against a person with a physical disability. The court extended the law to include a duty for employers to provide a reasonable accommodation to an employee who is associated with an individual with a disability.
This is different from discrimination based on association under the ADA. Under the ADA, the statute says it is discrimination if an employer excludes benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association. This court's ruling says under California's FEHA an individual associated with a person with a disability is him or herself entitled to a reasonable accommodation.
Full Story: Must Employers Provide "Reasonable Accommodation" for Disability of a Worker's Family Member? California Court of Appeal Says "Yes," Duane Morris, Apr. 7, 2016, available at
http://www.duanemorris.com/alerts/california_employers_provide_reasonable_accommodation_disability_of_worker_family_member_0416.html
B. WORKFORCE
1. Hilary Clinton Speaks Out Against Sheltered Workshops and Subminimum Wage
While speaking at a presidential campaign event in Wisconsin Hilary Clinton spoke out against the use of sheltered workshops for people with disabilities and paying employees below minimum wage in these facilities. Sheltered workshops are supervised facilities employing people with disabilities to do simple, often boring, work for very little pay. These workshops are entitled under federal law to pay below the minimum wage under Section 14(c) of the Fair Labor Act, which allows employers to ask for a waiver of minimum wage payments for sheltered workshops.
Hilary Clinton received praise from the president of the National Federation of the Blind, Mark Riccobono, after she advocated for the repeal of this law. Riccobono also calls for the repeal of this law and hopes that the other presidential candidates will take a similar stance in the coming months. At this time he says over 3,000 employers with 250,000 employees are granted this waiver and pay "pennies per hour."
Full Story: Michelle Diament, Clinton Calls for End to Subminimum Wage, disabilityscoop.com, Mar. 30, 2016, available at
https://www.disabilityscoop.com/2016/03/30/clinton-end-subminimum-wage/22109/
C. EDUCATION
1. Federal Court Says Religious Schools Are Exempt from the ADA
A federal judge in New Jersey has ruled that the Americans with Disabilities Act does not apply to religious schools. The lawsuit was brought when the Haddonfield Friends School (a Quaker school) did not make accommodations for a students with "attention dysfunction and dyslexia." The suit also claims that the student was expelled in retaliation for the advocacy of the student's parents on his behalf. In the past, the Third Circuit Court of Appeals has given a test to determine if an entity is eligible for a religious exemption to the ADA (See LeBoon v. Lancaster County Jewish Community Center Association). Part of the test is how secular or religious the entity holds itself out to the public. Things such as religious instruction and membership are also a factor.
The Judge found that the Haddonfield Friends School had religious doctrine in its curriculum and is sponsored by a religious order. The plaintiffs argue that the Quaker Teachings are not religious enough to permit an exemption to the ADA. According to the plaintiff's attorney, the school does not have Quaker teachers or administrators, it does not have many Quaker students, and there are no prayers or courses on Quakerism. The judge said that it is not the court's role to question beliefs or practices for a religion. The plaintiffs plan to appeal the decision.
Full Story: Charles Toutant, Religious School Held Exempt from Discrimination Law, New Jersey Law Journal, Apr. 4, 2016, available at
http://www.njlawjournal.com/id=1202754040451/Religious-School-Held-Exempt-from-Discrimination-Laws?slreturn=20160312110029
2. Presidential Candidate Bernie Sanders Wants to Fully Fund IDEA. Is it Possible?
While not often publicized, one of Bernie Sanders' goals as President would be to increase employment and education opportunities for individuals with disabilities. On his campaign website, he says that it is unacceptable that the unemployment rate for individuals with disabilities is so high. He feels "we need to fully fund the Individuals with Disabilities Education Act (IDEA) and vocational education programs" for people with disabilities. Many people wonder if a fully funded IDEA is a realistic possibility.
When IDEA was passed, Congress committed to "fully funding" 40 percent of the excess costs of educating students with disabilities. Today, federal funds are only accounting for 16 percent of the excess cost per student in special education. Bernie Sanders is not the first to raise the issue during a campaign. President Obama included the same thing in his platform when he ran for President in 2008. Appropriations for the IDEA have been the highest they have ever been during the Obama Presidency, but are still nowhere close to fully funding the law. If history is any indication, those commitments will likely be nothing more than verbal.
Full Story: Kim Dancy, Fully Funding IDEA: A Democratic Dream or Just an Empty Promise?, EdCentral, Mar. 23, 2016, available at
http://www.edcentral.org/fully-funding-idea/See Also: Fighting for Disability Rights, Bernie Sanders Campaign, available at
https://berniesanders.com/issues/fighting-for-disability-rights/
D. HEALTHCARE
1. Ohio Parents Struggle to Find Residential Treatment Options for Behavioral Care
The Steffen's son, Andrew, has severe autism. If not controlled, his volatile outbursts cause him to be a danger to himself and others. His physician directed his parents to send him to residential treatment for 24/7 care. Recently, the only such facility in Ohio closed leaving families like the Steffens with no options close by to them for care. The family is facing the grim reality that they may need to send him to a facility in Indiana, Virginia, or Florida forcing them to only see him once a month.
The Steffens say they are lucky that the military healthcare program they are enrolled in will pay for the treatment. Medicaid can also help, but it does not cover room and board for residential treatment. Often families in the same position with private or no insurance are not able to pay for treatment at all and are faced with the hard choice of giving up custody to public child welfare agencies. The Steffens's situation is just one illustration of why many feel the state is not adequately handling behavioral healthcare for children with intellectual disabilities.
Full Story: Rita Price, Parents Frustrated by Lack of Residential Treatment Options, Disability Scoop, Apr. 1, 2016, available at
https://www.disabilityscoop.com/2016/04/01/parents-residential-treatment/22121/
2. Researchers in Massachusetts Find Health Care Suffers for People with Disabilities
Researchers at Bayside Medical Center created an imaginary patient who weighed 200 pounds, used a wheelchair, and was requesting specialized medical testing. The researchers contacted 250 doctors' offices in 4 major cities to seek medical testing for the imaginary patient. Twenty percent of the offices called refused to help. Among the doctors who would accept the imaginary patient, only 10% of them said they had the necessary equipment.
In response, Senator Barrett wants to introduce bill S.1114 that would create an Office of Health Equity within the state government. Current legislation focuses only on race and ethnicity disparities and is not properly funded with a dedicated staff. Barrett's bill is in committee now and he hopes to see it on the floor soon.
Full Story: Shira Schoenberg, Bill Seeks to Address Health Care Disparities Among People with Disabilities in Bay State, MassLive, Mar. 22, 2016, available at
http://www.masslive.com/politics/index.ssf/2016/03/bill_would_create_office_to_ad.html
E. TECHNOLOGY
1. Thought-Driven Wheelchairs Could Help People with Quadriplegia
At Duke University, researchers have been using rhesus monkeys to develop technology that eventually may be able to help people with quadriplegia achieve voluntary mobility by using brain waves to propel a wheelchair. Researchers used grapes as an incentive for a hungry monkey and applied electrodes to the head of the monkey. When the grapes were set out in front of the monkey, a machine was able to record brain activity in the form of electrical signals. By using these signals, researchers were then able to demonstrate how the signals can be used to program wheelchairs to recognize predictable brain activity patterns. The signals can then be translated to voluntary movement of the wheelchair.
Full Story: Melissa Healy, Monkeys Drive Wheelchairs - Using only Their Thoughts, The News & Observer, Mar. 13, 2016, available at
http://www.newsobserver.com/news/technology/article64957427.html
2. National Council on Disability Supports Self-Driving Cars
The National Council on Disability (NCD) is an independent federal government agency, which advises the President and Congress on disability law and policy in Washington, DC. It recently announced that it supports the Senate Commerce Committee for holding hearings on self-driving cars.
The NCD Chairperson, Clyde Terry, is excited about self-driving car technology and the potential this technology holds for the disability community. Advantages include increased independent mobility, decreased isolation of people with disabilities, and opportunity for people who cannot hold a driver's license to still have a car.
Full Story: National Council on Disability Commends Senate Commerce Committee for Hearings on Self-Driving Cars, National Council on Disability, Mar. 16, 2016, available at
http://www.ncd.gov/newsroom/2016/national-council-disability-commends-senate-commerce-committee-hearings-self-driving
F. EMERGENCY PREPAREDNESS
1. Refugees with Disabilities Are Neglected by Current Emergency Prep Policies
A "one-size-fits-all" approach to emergency preparation often neglects those with disabilities and their families that need individual assistance. Further steps must be implemented in concert with The United Nations Convention on the Rights of Persons with Disabilities (CRPD) Article 11 law to aid the victims of these situations with disabilities. Article 11 of the CRPD mandates that states take "all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters [in accordance with their obligations under international law]." In the current Syrian refugee crisis, one major issue is the disconnect between organizations that provide humanitarian assistance and specialized services within local communities.
Four important steps are needed to achieve the UN CRPD mandate. Communication about the situation of refugees with disabilities and what authorities are currently doing to support and protect them should be bolstered. Authorities should detail an action plan in cooperation with organizations working for persons with disabilities, humanitarian affairs, health and social service providers and others. The Council of Europe's publications on disaster preparedness for people with disabilities is suggested as an appropriate basis for such a plan, including projects to strengthen cooperation between organizations working in the field of humanitarian affairs, health and social service providers, and organizations for persons with disabilities should be put into action. And finally adequate financial support should be provided to ensure that refugees with disabilities have equal access to needed services but without taking funds away from programs targeting other disadvantaged groups.
Full Article: Luk Zelderloo, Is the EU Paying Enough Attention to Needs of Migrants and Refugees with Disabilities? NewEurope, April 11, 2016, available at
https://neurope.eu/article/eu-paying-enough-attention-needs-migrants-refugees-disabilities/
G. INDEPENDENCE
1. Dancing with the Stars Contestant Spreads Awareness of Deaf Culture
Nyle DiMarco is currently one of the frontrunners on Dancing with the Stars. The former winner of America's Next Top Model comes from a Deaf family going back three generations, and he wants to use his experience on the show to draw attention to and create better understanding of Deaf culture. DiMarco wants people to recognize that deafness is not disabling, and Deaf people can live independent and productive lives.
This week, he will be performing a dance dressed as Tarzan for Disney Week on Dancing with the Stars. He says that he relates to the character, as he has also experienced the challenges that surface when two cultures interact, in his case, hearing and Deaf culture. He explained in the interview, "Tarzan was born and raised into a different culture. ... When the 'others' came, he was intrigued to learn. In the end, he still went back to his home." Nyle and his partner, Peta Murgatroyd, have consistently received accolades from the judges in the dancing competitions. Peta uses signals like tapping Nyle on the shoulder to keep him on beat. Nyle hopes to continue in his modeling and acting career to break down barriers for Deaf people.
Full Story: Erin Jenson, Nyle DiMarco on his "DWTS" Disney Night Performance, #RedefiningDance, USA Today, Apr. 11, 2016, available at
http://www.usatoday.com/story/life/entertainthis/2016/04/11/nyle-dimarco-his-dwts-disney-night-performance-redefiningdance/82878866
2. Teen with Down Syndrome to Compete in Miss America Tournament
Mickey Deputy, a teen from Indiana with Down syndrome, has been competing in beauty pageants for the last few years. She started after a family friend suggested she enter Miss Amazing, a pageant geared toward young women with disabilities, and she ended up taking home the Junior Teen title. The following year, she competed again in Miss Amazing and won the state Teen level. She competes to raise awareness that people with disabilities can live full and independent lives and that they "are human, not just props or tools."
This year, Mickey decided she wanted to compete in the Miss America pageant, where the vast majority of her fellow contestants will be women without disabilities. In fact, she is the first person in Indiana with an intellectual disability to compete in the tournament. Her mother explained that she hopes Mickey will break down barriers by competing in the integrated tournament, and show that people with disabilities are not in any way limited and should be allowed to compete just like everyone else.
Full Story: Teen with Down Syndrome Sets Sights on Miss America Pageant, Today, Apr. 7, 2016, available at
http://www.today.com/style/teen-down-syndrome-sets-sights-miss-america-pageant-t84736
H. INTERNATIONAL
1. Irish Center Opens Geared Toward Individuals with Mobility Impairments
An organization in Cork, Ireland, has recently opened a center geared toward activities for people with physical disabilities. The opening ceremony on April 9 included the president of the Irish Wheelchair Association Eileen O'Mahony, Irish Minister of State Kathleen Lynch, and former Paralympian Jenny O'Sullivan.
The center, Oak House, will focus on providing greater independence, freedom, and choice to people who use wheelchairs. It will also house a broad range of social, educational, and sporting programs and activities. The center is the result of three years of development by the Irish Wheelchair Association, who has been looking for a location to hold meetings and informative events. They hope that the facility will benefit all people with mobility issues by increasing awareness and education.
Full Story: Joe Leogue, Centre Opens for People with Physical Disabilities, Irish Examiner, Apr. 10, 2016, available at
http://www.irishexaminer.com/ireland/centre-opens-for-people-with-physical-disabilities-391981.htmlFull Article: Luk Zelderloo, Is the EU Paying Enough Attention to Needs of Migrants and Refugees with Disabilities? NewEurope, Apr. 11, 2016, available at
https://neurope.eu/article/eu-paying-enough-attention-needs-migrants-refugees-disabilities/
I. POP CULTURE
1. CoorDown Creates Ad in Attempt to Change the Conversation about Down Syndrome
CoorDown, creator of the Dear Future Mom commercial in 2014, created another commercial about people with Down syndrome entitled, "How Do You See Me?" for World Down Syndrome Day on March 21, 2016. The video features AnnaRose Rubright, a college student from New Jersey who has Down syndrome. It depicts a day in AnnaRose's life through her own eyes, but acted out by the well-known actress Olivia Wilde. The message of the video is that AnnaRose's life is an ordinary life that is not just ordinary but meaningful and important. The climax of the video is at the end when the camera pans from Olivia Wilde to AnnaRose herself, and she asks the viewer, "This is how I see myself. How do you see me?"
In an interview, AnnaRose talked about how she is surprised and disappointed that people are shocked to learn that she goes on dates, is in college, and has a job; activities that would not shock someone if they were speaking to a person without a disability. The video is meant to help people change the way they look at disabilities, in particular, Down syndrome.
There have been criticisms by some disability rights supporters, saying that using Olivia Wilde in the video reduces the message and undermines the disability. Emily Ladau argues that the actress is considered a beautiful celebrity by mainstream standards and has had a lot of acting success, so she is not representative of the disability community. She asks why AnnaRose could not have portrayed her own life, considering these are the activities she sees herself doing.
The disagreement about the effectiveness of the commercial shows that there is still work to be done regarding the discussion of disabilities and the best way to progress forward with that discussion.
Full Story: Jessica Contrera, Watch: Olivia Wilde Will Change the Way You Think about Down Syndrome, The Washington Post, Mar. 21, 2016, available at
https://www.washingtonpost.com/news/arts-and-entertainment/wp/2016/03/21/watch-olivia-wilde-will-change-the-way-you-think-about-down-syndrome/See also: Kate Bratskeir, Olivia Wilde's Down Syndrome Video Shows We Have a Long Way to Go, The Huffington Post, Mar. 21, 2016, available at
http://www.huffingtonpost.com/entry/olivia-wilde-down-syndrome-video_us_56f00b71e4b084c67220d38d
2. Adults with Disabilities Perform at London's Globe Theater
London's Blue Apple Theater Group is geared toward actors with intellectual disabilities. Since 2005, the group has offered acting lessons to adults with disabilities, focusing on live theater performances. The members then go on to perform at local theater plays and events.
Last month, the volunteer group performed at an event celebrating Shakespeare's birthday at the Globe Theater in London. Actors used the opportunity to show that people with disabilities should be given the same opportunities as their nondisabled peers. One actor stated, "In this you're given a fair chance ... you, the individual, can send out such a powerful message." The group plans to continue giving performances around England this year.
Full Story: Lisa Reddy, Adults with Learning Disabilities Perform at Shakespeare's Globe Theater, Yahoo! News Canada, Apr. 11, 2016, available at
https://ca.news.yahoo.com/blogs/good-news/adults-with-learning-disabilities-perform-at-152833734.html
J. EVENTS AND FUNDING
Call for Papers and Proposals
Webinars and Conferences
Scholarships
The Disability Law & Policy e-Newsletter is supported by the following sources:
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Note to readers: News article links may require free registration for access, or may be active for a limited time before the respective news services archive them. Archived items may also be available for a fee. Products mentioned in this newsletter are for information only and do not constitute an endorsement.
The Disability Law & Policy e-Newsletter is the collaborative product of Editor-in-Chief David W. Klein, Ph.D., Executive Editor William N. Myhill, M.Ed., J.D.; and Associate Editors Philip Ross, Tesla Goodrich, and Kate Battoe.
To subscribe to this free e-newsletter, go to http://disability.law.uiowa.edu/lhpdc/publications/news.html for directions for the "Disability Law & Policy e-Newsletter."
The e-Newsletter is archived at http://disability.law.uiowa.edu/lhpdc/publications/news.html
Re-distribution / forwarding of this e-Newsletter to your networks is encouraged.
