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 24, 2010
Volume 7, Issue 4

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.

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.

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Thanks to all of our readers who replied to our survey. Based on your feedback, we have decided to implement the following changes: increased civil rights coverage, more information on housing, and the addition of an announcements section beginning in our next issue. Appropriate announcements include any of the following, incorporating a focus on disability law or policy: calls for papers or proposals, book announcements, conference or event announcements, scholarship, fellowship or internship competitions, and announcements of new or forming resources or organizations. Please send any announcements to dlpannounce@law.syr.edu for inclusion in a future newsletter.

A. CIVIL RIGHTS

1. $50,000 Settlement Reached in Service Animal Litigation

Patric LeHouillier, an attorney practicing in Colorado Springs, Colorado, has reached a settlement agreement with the United States Equal Employment Opportunity Commission (EEOC). The plaintiff Joan Murnane is a veterinarian, who was prohibited from bringing her service dog into the attorney's office during a deposition. Mrs. Murnane and the EEOC filed a lawsuit in the U.S. District Court for the District of Colorado after a December 2006 event where Mr. LeHouillier demanded that Mrs. Murnane provide documentation about her need for the dog. Mr. LeHouillier allegedly did not allow entry for the service dog because it would soil or otherwise ruin the firm's carpeting. The consent decree for the settlement was signed on March 29, 2010. Under the terms of the agreement, Mr. LeHouillier will pay $30,000 to Mrs. Murnane, $10,000 to her husband who was also denied entry to the law offices, and $10,000 to the EEOC. Mr. Lehouillier will also be required to post a sign at his office that states "Service Animals Welcome" as part of the agreement. Nonetheless, Mr. LeHouillier denies any violation of the Americans with Disabilities Act and instead claims that he settled the case solely for financial reasons.

Full story: Mike Scarcella, Dogged by Lawsuit After Barring Service Animal from Office, Lawyer Settles for $50k, National Law Journal, April 1, 2010, available at
http://www.law.com/jsp/article.jsp?id=1202447270772

2. Tyson Foods Sued for Disability Employment Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Arkansas-based Tyson Foods, Inc., on April 7, 2010, for disability discrimination in violation of the Americans with Disabilities Act. The complaint alleges that a former employee with epilepsy was not rehired by the maintenance department at Tyson's plant in Sedalia, Missouri, because of his disability. Mr. Mark White states that he was hired in early 2008, but the offer was revoked in May of that year when a Tyson doctor learned that White had epilepsy. Tyson refused to rehire White even though he was able to perform his job, as evidenced by two previous stints at Tyson before the company found out about his condition. Moreover, White had not had a seizure in over 15 years. The lawsuit seeks compensatory damages (in the form of back pay) and punitive damages, as well as injunctive relief against Tyson.

Full story: Tyson Foods Sued by EEOC for Disability Bias, Trading Markets, April 7, 2010, available at
http://www.tradingmarkets.com/news/stock-alert/tsn_tyson-foods-sued-by-eeoc-for-disability-bias-895828.html

3. Celestica Corporation Settles Reasonable Accommodation Litigation for $102,100

As the result of a settlement agreement signed April 9, 2010, with the U.S. Equal Employment Opportunity Commission (EEOC), Celestica Corporation will be required to pay $102,100 to an employee whose requests for reasonable accommodations were "willfully ignored." The Canadian electronics manufacturer hired an employee through a placement agency to work in its Tennessee warehouse. The employee -- who has cardiomyopathy, chronic obstructive pulmonary disease, and lupus -- requested to use her electric wheelchair to enter the plant from her parking space. Celestica ignored this request in violation of the ADA. The employee worked without accommodation for two months before quitting. The consent decree signed by a federal judge on April 7 enjoins Celestica from refusing/ignoring future accommodation requests, requires the issuance of a reasonable accommodation policy for all employees and potential hires, and posting notices regarding the settlement and ADA requirements. Moreover, Celestica must provide training to managers, supervisors, and human resources employees regarding reasonable accommodations, in addition to the monetary relief.

Full story: Celestica Corporation Settles EEOC Disability Accommodation Lawsuit, Trading Markets, April 9, 2010, available at
http://www.tradingmarkets.com/news/stock-alert/cls_celestica-corporation-settles-eeoc-disability-accommodation-lawsuit-903282.html

B. EDUCATION

1. Special Education Concerns Put Aside as Shortened School Calendar Is Approved

On April 5, 2010, a federal court ruled that Hawaii can go forward with cutting the school calendar this year by 17 days and 24 days next year to comply with state budget cuts. Parents of nine special education students at five different schools filed a complaint last year asking for preliminary injunctive relief arguing that the missed school days would violate their children's' individualized education plans (IEPs). Affirming the lower court's decision, which allows the plan to move forward, the court reasoned that special education students are not being discriminated against because all students are receiving fewer services due to budget cuts.

Michelle Diament, Shortened School Calendar Okayed Over Special Education, Disability Scoop, April 6, 2010, available at
http://www.disabilityscoop.com/2010/04/06/hawaii-furlough-decision/7557/

2. $8.5 Million Awarded to University to Train Special Education Teachers

On April 7, 2010, California State University, Northridge, was awarded $8.5 million in federal funding over five years to address the critical shortage of qualified special education teachers in high-need schools. The program will recruit and train 150 special education teachers, evaluate the impact of the new teachers on the students, and generally improve the teacher quality and achievement levels for students with disabilities. The program will offer either an 18 month credential or master's degree in Special Education, and a 2-year education induction program.

Full Story: CSUN Awarded Federal Grant to Strengthen Special Education, San Fernando Valley Sun, April 7, 2010, available at
http://www.sanfernandosun.com/sanfernsun/index.php?option=com_content&task=view&id=5078&Itemid=0
(login required)

C. TECHNOLOGY / TELECOMMUNICATIONS

1. FCC Chair Defends Plan to Increase Access to Broadband Services

If Congress and the courts allow the FCC authority to implement its "broadband plan," then persons with disabilities will be afforded fairer access to broadband, also known as high-speed Internet. At a hearing on April 14, the FCC chairman, Julius Genachowski, reiterated his confidence in the legality of the FCC's plan, which is a regulatory scheme that would vastly increase the availability of broadband connections. He made the statement to the Senate Commerce Committee despite a D.C. court of appeals' ruling that sided with Comcast's argument that the statutory scheme was insufficient to support the FCC's assertion of authority. The question that the court--and the FCC chairman--addressed, was whether the FCC has the authority under the Communications Act to "reform universal service to connect everyone to broadband communications." If the FCC does not have the authority to regulate broadband Internet, then cable companies will be allowed to determine who should receive high-speed Internet services, based on subscribership levels.

Full Story: John Eggerton, Genachowski: Court Decision Notwithstanding, FCC has the Broadband Power, Broadcast Newsroom, Portal for the Broadcast Industry, April 13, 2010, available at
http://www.broadcastingcable.com/article/451236-Genachwoski_Court_Decision_Does_Not_Change_Broadband_Policy_Goals.php

See also David Lieberman, Does Cable Have Grip on Speedy Internet?, USA Today, April 04, 2010, available at
http://www.toptechnews.com/story.xhtml?story_id=021000QF4I70&full_skip=1

2. DOJ Officials Advocate for Increased Internet Accessibility

On April 22, 2010, the House Judiciary Panel heard testimony from the Department of Justice, Civil Rights Division, which is advocating for increased Internet accessibility for persons with disabilities. The Principle Assistant Attorney General for Civil Rights, Samuel Bagenstos, stated that the division has acted to ensure that the Web conforms to standards set out by the ADA. As an example, he cited a recent case involving five universities' use of the Kindle, an electronic device that turns text into speech. The DOJ argued that persons with blindness are unable to navigate the initial menus on the device, making it effectively useless for them. In a settlement agreement with the DOJ, the schools agreed that they would no longer incorporate the Kindle into any curriculum unless Amazon makes the device accessible.

Full Story: Leah Nylen, Civil Rights Division Pushes for Internet Accessibility, April 22, 2010, available at
http://www.mainjustice.com/2010/04/22/civil-rights-division-pushes-for-internet-accessibility/

D. HEALTHCARE / BENEFITS

1. Health Care Reform Creates Substantial Benefits for People with Disabilities

President Obama signed the Healthcare Reform Bill into law on March 23, 2010. Under the law, providers of health insurance are no longer allowed to deny insurance coverage based on a pre-existing health condition. Annual and lifetime caps on insurance payouts are now illegal, and Medicaid will expand up to 133% of the federal poverty guidelines. Health insurance providers are now required to pay for both rehabilitation and habilitation services, including mental health benefits. Habilitation services help people with developmental disabilities develop, improve, or maintain independent living skills. Advocates for the law say that for the first time, people with disabilities and mental illness will no longer fear denial of health insurance coverage.

Moreover, the law contains a "Community First Option," which promotes community-based living options for people with disabilities. Under this option, states can request federal funding to support community living if the states agree to limit no longer the number of people that can live in the community. The date that the law takes effect depends on when Congress reconciles the minor differences between the Senate's and House's versions of the law.

Full Story: Michelle Diament, Health Care Vote Ushers in Big Change for People with Disabilities, Disability Scoop, March 22, 2010, available at
http://www.disabilityscoop.com/2010/03/22/health-care-vote/7388/

2. Illinois Social Security Disability Insurance Applications Have Record Delays

Illinois is experiencing one of the worst backlogs in the country for processing applications for Social Security Disability Insurance (SSDI). According to a report by Allsup, Inc., a private entity that helps people with disabilities file for SSDI, the average wait in Illinois is 16 months for a hearing before a federal judge to determine eligibility. Because eligibility hearings occur only after the initial disability application has been denied twice, some Illinois applicants will not receive benefits for years after the initial application. The Social Security Administration believes the recession and the aging Baby Boomer population caused the high number of applications that led to the large backlog.

Full Story: Monifa Thomas, Illinois Disability Applicants Have Long Wait for Benefits, Chicago Sun Times, April 13, 2010, available at
http://press.gop-network.org/news/full_article/112716?request=http://press.gop-network.org/%3Fpage%3D55

E. WORKFORCE

1. Federal Government Not Fully Equipped to Hire Workers With Disabilities

In a recent survey of federal government agency managers by the Federal Managers Association and the Telework Exchange, 40% of managers reported not receiving any training to hire or retain workers with disabilities. Additionally, many of the managers also noted that they were not familiar with regulations in place to promote the hiring of people with disabilities. These findings come after President Obama proclaimed in October of 2009 that the federal government had to take the lead in hiring individuals with disabilities.

Full Story: Shaun Heasley, Feds Ill-Equipped to Hire People With Disabilities, Survey Finds, Disability Scoop, March 29, 2010, available at
http://www.disabilityscoop.com/2010/03/29/federal-hiring-survey/7468

The report can be found at
http://www.teleworkexchange.com/

F. INDEPENDENCE

1. States Slow to Move People Out of Nursing Homes Despite Federal Funds

In 2005, Congress established a program entitled Money Follows the Person with the goal of helping 29 states move more than 37,000 residents out of nursing homes by 2013. The program would help residents live on their own or in small groups and provide funds for accessibility modifications and security deposits amongst other small costs. According to the AARP Public Policy Institute, average nursing care costs are $75,190 annually as compared to in home care services, which on average cost $18,000 annually. The case of Georgia helps to illustrate the slow movement of residents. Georgia had hoped to move more than 1,312 residents from nursing homes by 2011. But at the end of 2009, the state had only moved 221 residents. Various factors have contributed to the slow moving of residents. According to a recent study by Mathematica, there have been problems finding affordable housing, resistance from nursing homes and restrictions on eligibility, namely requirements that residents must live in institutions for 6 months or more to be eligible and cannot move into a residence with more than 4 people. As a proactive measure, in March of 2010 Congress modified eligibility requirements by lowering the time required to 3 months before residents can be moved in hopes that they would be able to be moved faster.

Full story: Phil Galewitz, Despite Federal Help, States Struggle to Move People Out of Nursing Homes, National Public Radio, April 23, 2010, available at
http://www.npr.org/templates/story/story.php?storyId=126217779&ft=1&f=1001

2. El Paso Considers Reducing Number of Accessible Apartments

El Paso currently has a city rule that 5% of apartments must be made accessible for individuals with disabilities. Builders are arguing that 5% is too much, and that many of these apartments go unused; they would like the total amount dropped to 2%. Despite not having any reliable data on the issue of supply and demand, the city council has temporarily agreed to drop the mandate to 3% until statistical data are made available.

Full story: Daniel Novick, City Mulls Requiring Fewer Apartments With Disability Access, KFOX 14 News, April 6, 2010, available at
http://www.kfoxtv.com/news/23072677/detail.html

G. EMERGENCY RESPONSE / PREPAREDNESS

1. Inclusive Hurricane Preparedness Conference Held in Biloxi, Mississippi

On April 28th and 29th, 2010, enableUS hosted an "Inclusive Hurricane Preparedness Conference" in Biloxi, Mississippi, to discuss preparation and response for vulnerable populations during hurricanes on the Eastern Seaboard and the Gulf Coast. EnableUS coordinated the event to foster information sharing and cooperation between federal, state, and local officials so that effective and cohesive inclusive hurricane preparedness plans can be developed. Speakers from a wide range of organizations and different levels of government were available to interact with attendees from industry, nonprofit organizations, academia, and government to exchange information about best practices. The speakers included the administrator of the Federal Emergency Management Agency (FEMA), the director of FEMA's Office of Disability Integration and Coordination, and the commander of Joint Task Force Katrina.

Full Story: Inclusive Hurricane Preparedness Conference 2010, enableUS, available at
http://www.enableus.org/upcoming_events.html

H. INTERNATIONAL

1. Haitian Amputees Face Challenges in Receiving Health Care

Thousands of Haitian amputees continue to face challenges in social adaptation and integration, in part because of the massive damage to infrastructure in a country that has tended to stigmatize persons with disabilities. The 7.0-magnitude earthquake left about 4,000 people requiring amputations. According to Valerie Scherrer, member of a German NGO, "persons living with disabilities . . . remain invisible. They are not given priority . . ."

Though some had the benefit of receiving hospital services, many recent amputees were forced to undergo surgery in temporary settlement camps. As a result of the poor sanitation in the camps, hospital workers find that amputees were returning to hospitals because their amputation wounds were becoming infected. This process is overloading the already-strained healthcare system.

Full Story: Cassandra Phillips, Steven Estey, and Mary Ennis, Still Invisible: Persons with Disabilities in Post-Quake Haiti, ReliefWeb, April 07, 2010, available at
http://www.reliefweb.int/rw/rwb.nsf/db900SID/VDUX-84ARPN?OpenDocument

2. Irish Government Tackles Issue of Stigma and Disability

John Moloney, Ireland's Minister for Disability and Mental Health, launched a campaign to reduce the stigma associated with persons with disabilities in Ireland. Execution of the plan involves a large-scale print and broadcast media campaign in an attempt to convey the message of anti-stigmatization. According to Mr. Moloney, "[stigma] damages ... lives and can be deeply hurtful and isolating." The Minister further explained that, especially for persons living with mental health disabilities, the difficulty of learning to live with that disability is further compounded when that person undergoes social stigma. In addition, the plan funds a competition for "See Change" ideas to reduce stigma, the best of which will receive a prize of 5,000 euros. If this two-year campaign successfully increases Irish society's acceptance of persons with disabilities, then perhaps the United States could adapt the program's components to assist American anti-stigma campaigns.

Full Story: Minister Moloney Launches National Stigma Reduction Campaign "See Change," Ireland, Medical News Today, April 16, 2010, available at
http://www.medicalnewstoday.com/articles/185613.php

More e-newsletters from the Burton Blatt Institute and Partners:
ADA Headliner (monthly e-newsletter) http://sedbtac.org/headliner.php
ADA Pipeline (tri-yearly newsletter): http://sedbtac.org/pipeline.php
One Stop Toolkit Resources of the Week: http://www.onestoptoolkit.org/resourceoftheweek.cfm

http://www.bbi.syr.edu
Twitter - http://twitter.com/BBISyracuse
Facebook - http://www.facebook.com/pages/Burton-Blatt-Institute/194731496501

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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., Managing Editor Deepti Samant, M.S. (Rehab), M.S. (ECE); Senior Editor Elizabeth Ribet, Ph.D., J.D.; and Associate Editors Jeffrey Davenport, B.A., Kenneth Hunt, B.A., Dara Lenoff, B.S., Eric Moll, B.A./B.S, and Paris Peckerman.

http://disability.law.uiowa.edu/

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