The Disability Law & Policy e-Newsletter
An electronic publication of
The Law, Health Policy & Disability Center at the University of Iowa College of Law
The Burton Blatt Institute at Syracuse University
August 3, 2009
Volume 6, Issue 7
The Disability Law & Policy Newsletter is a bi-weekly publication that aims to inform disability advocates, scholars, and service providers of the most current issues in disability law, policy, research, best practices, and breaking news.
Below is a topical overview of the items presented in this issue.
A. CIVIL RIGHTS: Americans with Disabilities Act (ADA), Sections
504 & 508 of the Rehabilitation Act, and state civil rights law
B. EDUCATION: Special education & youth transition to successful postsecondary outcomes
C. TECHNOLOGY / TELECOMMUNICATIONS: Assistive, information, and communication technologies
D. HEALTHCARE / BENEFITS: Social Security Income / Social Security Disability Income / Medicaid & Medicare
E. WORKFORCE: Workforce Investment Act (WIA), Ticket to Work and Work Incentives Improvement Act (TWWIIA), & Vocational Rehabilitation
F. INDEPENDENCE: News for and about the Independent Living Movement
G. EMERGENCY RESPONSE / PREPAREDNESS: Disaster mitigation and preparedness news
H. INTERNATIONAL: News for and about disability topics outside the U.S.
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A. CIVIL RIGHTS
1. U.S. Supreme Court Extends Tuition Reimbursement
In a 6-3 decision, Forest Grove School District v. T.A., the U.S. Supreme Court held that the parents of students in special education may seek reimbursement from the government for private school tuition even if the student has not received special education services at a public school. The case involved a high school student with attention deficit hyperactivity disorder (ADHD). While at Forest Grove, the student was not found eligible for special education, and subsequently, his parents removed him and placed him in a private school. Once enrolled in private school, doctors found that the student has ADHD and other disabilities. Justice John Paul Stevens, writing for the majority, noted that it would be unjust "to provide a remedy [to a student and his/her parents] . . . where a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation [where] the school district unreasonably denies a child access to such services altogether."
The dissent noted that the result of this decision will be expensive to school districts nationwide. It is estimated that 90,000 students with disabilities currently attend private schools. New York City schools alone received 4,368 requests for reimbursement, and paid out $89 million in 2007-08; half of those requests were previously denied because the student had not received services in public school.
Tamar Lewin, Court Affirms Reimbursement for Special Education, June 22, 2009, available at
2. CA Supreme Court Rules ADA Lawsuits with Damage Awards Do Not Require Intent
In a unanimous decision in Munson v. Del Taco, Inc., the California Supreme Court ruled businesses that unintentionally violate the Americans with Disabilities Act (ADA) can be sued in state court for monetary damages. The plaintiff in the lawsuit sued Del Taco because one of its California restaurants provided neither accessible parking nor public toilets. Ruling for the plaintiff, the Court reasoned that when California's legislature amended the Unruh Civil Rights Act in 1992 to incorporate the ADA, it intended to afford monetary damages, previously available under Unruh, to be applied to unintentional violations of the ADA. As a result of this decision, businesses are now liable for up to $4,000 for each instance of discrimination, irrespective of intent, against persons with disabilities.
The original lawsuit was brought by Kenneth Munson, who sued Del Taco because its restaurant in Loma Linda, California, did not provide accessible parking and public toilets.
Chris Rizo, Calif. Court: Businesses May Be Sued for Unintentional ADA Violations, June 12, 2009, available at
3. Supreme Court of Iowa Rules Slaughterhouse Disease Is a Disability
The Supreme Court of Iowa ruled that a slaughterhouse employee who contracted brucellois from coming into contact with the blood of hogs in the course of his work was entitled to receive disability benefits. Overruling a trial court decision, Iowa's highest court reasoned that since the manner of exposure to blood was not merely "passive exposure to the conditions of the workplace," brucellois was not an occupational disease. Instead, because of frequent exposure to large amounts of blood, the employee suffered an occupational injury, a disability for which he could receive benefits.
Michael J. Crumb, IA Court Awards Disability to Ex-Meat Plant Worker, July 10, 2009, available at
1. Maryland Public Schools Still Not in Compliance with ADA
Montgomery County Public Schools, in Rockville, Maryland, has yet to revise regulations to conform to changes in federal disability law. The school sytem's current regulation states that mitigating measures, such as assistive devices and medication, must be used in determining if an individual is eligible for accommodation under the Americans with Disabilities Act (ADA). However, this regulation does not comply with the 2008 amendments to ADA that were further explained to school districts in the U.S. Department of Education's Office for Civil Rights document on "Protecting Students with Disabilities." Accordingly, as of January 1, 2009, school districts must not consider the ameliorating effects of any mitigating measures that a student is using in determining whether a student has a disability under the ADA.
Importantly, eligibility for services under the Individuals with Disabilities Education Act is not related to the ADA's criteria.
Kathleen Gilhooly, Schools Must Keep Pace with ADA Changes, July 22, 2009, available at
2. Arizona State Sued for E-Textbook Usage
The National Federation of the Blind (NFB) and the American Council of the Blind (ACD) have sued Arizona State University over its use of Amazon's Kindle DX electronic reading device to distribute electronic textbooks to students. The suit alleges that the Kindle DX menu is not accessible to people who are blind. The Kindle DX has text-to speech technology that can read text aloud to blind students. However, the reader's menu precludes the blind user from purchasing books, selecting which book to read, and using other Kindle DX reading functions. Five other universities, including Princeton University, are named in lawsuits.
Lynn Blumenstein, Arizona State Sued Over Kindle E-Textbook Usage, July 2, 2009, available at
C. TECHNOLOGY / TELECOMMUNICATIONS
1. The Tongue as a Steering Wheel
Engineers in the United States have begun testing a device on patients with spinal cord injuries, which allows the tongue to control input-dependent devices like wheelchairs and household appliances. The device uses a pair of sensors in a wireless headset to follow a magnet attached to the driver's tongue. The sensors convert the magnetic field fluctuations into signals, which are interpreted by a receiving computer. By moving the tongue in different "predefined" patterns, the user can move a cursor on a screen or switch on a television.
ScienceDaily, Quadriplegics Can Operate Powered Wheelchair with Tongue-Drive System, July 8, 2009, available at
2. New Disability Service Directory Launched
Disaboom, an online resource for people with disabilities, has unveiled its new Disability Organizations directory. The resource includes more than 450 mostly non-profit organizations that provide services to people with disabilities. The directory is divided into three categories (Major Disability Organizations, Disability-Specific Organizations, and Organizations for Living with Disabilities) for ease and relevance. The directory is available at: http://www.disaboom.com/Resources/DisabilityOrganizations/Default.aspx.
Business Wire, Disaboom Launches Disability Organizations Directory, June 22, 2009, available at
3. Vehicle Gives Blind Drivers the Wheel
Students at Virginia Tech have developed an automobile that gives persons who are blind control of a number of aspects of driving. The vehicle is a retrofitted dune buggy, which uses a touch map, laser range finders and an audio system to direct drivers. The team, representing Virginia Tech's Robotics and Mechanisms Laboratory, built the vehicle for the Blind Driver Challenge, the school's response to an initiative proposed by the National Federation for the Blind. The Virginia Tech team plans to replace the buggy with an all-electric car.
Amy Tierney, Robotic Technology Puts the Blind in the Driver's Seat, July 21, 2009, available at
D. HEALTHCARE / BENEFITS
1. Massachusetts Hospitals Improve Quality of Life Services for People with Disabilities
Hospital administrators and advocates at Massachusetts General Hospital and Brigham and Women's Hospital have reached an agreement to invest millions of dollars in improving services for people with disabilities and training for their employees. Improvements, such as a scale for weighing people in wheelchairs and accessible exam tables and X-ray machines, will be added. In other cities improvements such as these have been requested through lawsuits. These two hospitals are leaders in the medical field and therefore hope to bring forth change in other institutions as well.
Michelle Diament, Hospitals to Improve Care for People with Disabilities, June 29, 2009, available at
2. Cuts in Home Care for Families of Children with Disabilities
Because of budget cuts in the state of Washington, the Department of Social and Health Services has reduced in-home care for children with disabilities for all families. The cuts will save $31 million in the state budget and affect some 3,100 families. Three families are suing to keep the state from cutting their children's hours on the basis that budget cuts are not legal justification for reducing the hours of in-home care.
Christine Clarridge, State Sued Over Cuts to Disabled Kids' Care, The Seattle Times, June 27, 2009, available at
3. Should Obesity Be Considered a Disability? The AMA Unequivocally Says No
The American Medical Association (AMA) voted to advocate publicly against extending the Americans with Disability Act (ADA) classification of a person with a disability to obese Americans at its annual meeting. The nation's association of medical practitioners, in large part, fear suits from patients who would claim harm when a physician discussed obesity with them. However, advocates of the extension, like Walter Lindstrom at the Obesity Law and Advocacy Center, note that extending the definition of disability under the ADA to include obesity will not necessarily create a flood of new litigation. Under the ADA, simply having a disability does not create liability; a party must also demonstrate that the disability creates substantial limitations on a major life activity.
Lauren Cox, Doctors Fight Labeling Obesity a Disability, June 18, 2009, available at
1. Breaking Down Workplace Barriers for Youth with Mental Health Needs
The National Collaborative on Disability/Youth (NCWDY) has authored a guide on successful models to help youth with mental health needs transition into the workplace. The guide discusses successful models such as the Transition to Independence Process (TIP), Assertive Community Treatment (ACT), and Systems of Care (SOC). Additionally, specific design features of successful transition programs are identified. For example, a "separate physical location" apart from other mental health services, individualized work opportunities and experiences, and subsidized transitional housing are all emphasized.
National Collaborative on Workforce and Disability, Successful Transition Models for Youth with Mental Health Needs: A Guide for Workforce Professionals, Info Brief Issue 23, May 2009, available at
2. EEOC Revises Rules to Ease Process of Proving a Disability
The U.S. Equal Employment Opportunity Commission (EEOC) has adopted changes made by the ADA Amendments Act of 2008, making it easier for some individuals to establish that they have a disability. In particular, the EEOC has rejected several narrow court decisions, instead requiring that the definition of disability be "construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA." The changes were adopted to shift the focus of the courts from defining disability to concentrating on the discrimination claim.
U.S. Equal Employment Opportunity Commission, Commission Votes to Revise Rules to Conform to ADA Amendments Act, June 17, 2009, available at
3. EEOC Gives Guidance to Employers Regarding Swine Flu Preparedness
The U.S. Equal Employment Opportunity Commission (EEOC) has given guidance to individuals and employers on ADA-compliant procedures for prevention of and preparation for the swine flu/H1N1 virus. In terms of pre-offer, post-offer, and employment stages, the standard practice applies in regard to disability-related inquiries or medical examinations. Individuals with disabilities may only be subject to examinations that are standard to all entering employees in the same job category. Additionally, all employees must participate in infection control practices if the company institutes such a policy. Examples of these policies include wearing gloves, masks, or gowns, regular hand washing, and telecommuting. Such policies are only enforceable if reasonable accommodations are made available and if no individual is singled out.
U.S. Equal Employment Opportunity Commission, ADA-Compliant Employer Preparedness for the H1N1 Flu Virus, May 2009, available at
1. Community Living Obligations Not Met
Bazelon Center for Mental Health Law found that ten years after the Olmstead decision no state meets the Supreme Court's requirements to provide community based living for people with disabilities in the most integrated setting. The report shows that many people are housed in hospitals and nursing homes instead of in the community with support services, which may also be a cheaper alternative. Furthermore, the report suggests that the federal government can also expand Medicaid community service waivers and make mental health insurance accessible to all persons.
Bazelon Center for Mental Health Law, Still Waiting ... The Unfulfilled Promise of Olmstead, June 24, 2009, available at
2. HUD Commemorates Olmstead Decision by Increasing Housing Assistance
The U.S. Department of Housing and Urban Development (HUD) announced it will make $30 million in voucher assistance for housing rentals available to 4,000 non-elderly families with a disability beginning immediately. One thousand vouchers will be targeted directly at individuals transitioning from institutional facilities. This is part of a critical effort to facilitate independent living for individuals with disabilities. Local authorities will be responsible for granting the remaining 3,000 vouchers. However, HUD strongly recommended that those persons with disabilities at a high risk of entering the institutional setting be given priority. In providing assistance, HUD is commemorating the ten-year anniversary of the Olmstead decision, which affirmed a right to live independently for persons with disabilities.
Donna White, HUD to Offer Housing Assistance to 4,000 Americans with Disabilities, June 22, 2009, available at
G. EMERGENCY RESPONSE / PREPAREDNESS
1. NCD Emergency Response to Be Unveiled August 2009
The National Council on Disability (NCD) will issue its latest emergency response report at the International Association of Emergency Managers' 2009 National Conference on Community Preparedness on August 12, 2009, in Arlington, Virginia. The report will offer advice to "assist all levels of government in its work to establish evidence-based policies, programs and practices across the lifecycle of disasters," and will proffer "examples of effective community efforts with respect to people with disabilities" to facilitate more effective emergency preparedness programs. The NCD recommendations are the result of several years of research and review of policies and practices around the county. This is the first report of its kind by the NCD since 2005.
National Council on Disability, National Council on Disability Monthly Bulletin for June 2009, June 19, 2009, available at
2. Texas County Offering Emergency Kits for Residents with Disabilities
Chambers County in Texas, near Houston, is offering emergency kits for county residents with disabilities and other special needs. In addition, these persons who live in qualified evacuation zones and do not have other means of assistance can register over the telephone for assisted transportation in case of a disaster. Counties near the Gulf Coast are particularly at risk for hurricanes in the summer season. As such, FEMA's new administrator, Craig Fugate, noted the importance of such local and state emergency preparedness efforts since "[e]mergency management does not begin and end with FEMA."
The Anahuac Progress, Emergency Kits for Texans with Disabilities and Special Health Care Needs, July 1, 2009, available at
1. Yemen Begins Workshop on Best Practices
The Yemeni Ministry of Social Affairs and Labor recently partnered with the Social Fund for Development and CBM International to hold a three-day workshop on best practices in disability service provision. The 48 participants in the workshop received training with a focus on people with hearing and visual disabilities. The Yemeni Minister of Social Affairs and Labor, Amat al-Razaq Humad, said that the country is committed in its support for people with disabilities.
Yemen News Agency, Workshop on Disability Best Practices in Yemen Started, June 27, 2009, available at
2. Celebration of Disability Awareness Day Expands
In its 18th year of existence, Disability Awareness Day in the United Kingdom has ballooned to include almost 300 exhibitors. For the first time, the July 12th event will include a delegation from continental Europe. Spain and Cyprus will be represented as the mainland delegation at the 2009 event. Organizers expect that 25,000 visitors will attend the occasion, which will be highlighted by an inclusive arts event with performances by people with disabilities.
Warrington Guardian, Euro Feel to Disability Day, July 1, 2009, available at
3. Disability Support Workers Win Historic New Zealand Case
The Employment Court of New Zealand has ruled that workers caring for people with disabilities will be paid at least minimum wage when doing "sleepover shifts." The case centered on a worker at a community house who stayed with those he was caring for overnight and was expected to work during the overnight shift. The worker was paid 34 dollars for the night, less than four dollars an hour. New Zealand's adult minimum wage is twelve-and-a-half dollars an hour. Thousands of workers will see their pay increase because of the ruling, according to the national secretary of the Service and Food Workers Union.
Voxy News, Disability Support Workers Gain Historic Legal Victory, July 8, 2009, available at
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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., Managing Editor Deepti Samant, M.S. (Rehab), M.S. (ECE); and Associate Editors Jason Benetti, B.A., Erica Dolak, Kenneth Hunt, B.A., and Eric Moll, B.A..
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