The Disability Law & Policy e-Newsletter
An electronic publication of
The Law, Health Policy & Disability Center at the
University of Iowa College of Law
http://disability.law.uiowa.edu/
and
The Burton Blatt Institute at Syracuse University
http://bbi.syr.edu
October 28, 2010
Volume 7, Issue 9
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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A. CIVIL RIGHTS
1. Cancer Patient Successful in ADA, FMLA Lawsuit Against Michaels' Stores, Inc.
On September 1, 2010, a jury awarded Kara Jorud $8 million for lost wages, pain and suffering, and punitive damages arising from her terminated employment with Michaels' Stores, Inc., after she was diagnosed with cancer. Jorud worked as a store manager for Michaels' until July 2008, when the company fired her for allegedly stealing from the store and violating store policies. After alleging that Michaels' terminated her employment because of her cancer treatment, she received a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC) and brought suit in federal court in Florida. Initially in the lawsuit, she disproved the company's allegations of theft by providing a receipt of her purchases. Chemotherapy caused her to take medical leave from her position, but the district manager soon began calling her to threaten that she would lose her job if she did not return to work.
Jorud's suit alleged that Michaels', as well as the Boca Raton store manager, Skip Sand, violated her right to take leave, forced her to work when she was physically incapable of doing so, and harassed her while she took leave. The suit cited to the Family and Medical Leave Act, the Americans with Disabilities Act, and the Florida Civil Rights Act. The jury trial lasted five days, and the jury deliberated for five hours. The company's general counsel declined to say whether the company would appeal the verdict. The judge reserved the right to increase the lost wages award by another $900,000.
Full Story: Michaels Ordered to Pay $8 Million to Manager Fired after Breast Cancer Diagnosis, The Dallas Morning News, September 8, 2010, available at
http://www.dallasnews.com/sharedcontent/dws/bus/industries/retail/stories/DN-MichaelsLawsuit_08bus.ART.State.Edition1.26c1922.html
2. California Required to Provide Accommodations to Prisoners with Disabilities
On September 7, 2010, the Ninth Circuit decided that a class of all present future prisoners and parolees in California with certain disabilities could sue state officials in California, alleging violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Specifically, plaintiffs argued that the court should order defendants to implement policies ensuring that all prisoners with certain disabilities receive needed accommodations. To find authority for this order, plaintiffs relied on a regulation implementing Title II of the ADA. In 1993, in Armstrong v. Wilson the Ninth Circuit decided that the ADA's and Rehabilitation Act's provisions apply to state prisoners, and the Court found that the State's policies violated these Acts, as well as the Due Process Clause. Despite this ruling, defendants argued that the ADA's implementing regulations are "manifestly contrary" to the ADA.
The Court held that "state officials can't shirk their responsibility to provide inmates wiht ... disabilities accommodations." Additionally, it rejected a number of other arguments, which challenged the regulations on a number of legal grounds. However, in crafting a solution, the court vacated the district court's grant of plaintiffs' requested order, citing the "very sparse evidence of actual ADA violations in the county jails." Nonetheless, the court affirmed the principle that, at least within the 9th Circuit, prison conditions must conform to the ADA's requirements.
Full Story: Elizabeth Banicki, California Can't Shirk Duty to Disabled Inmates, Courthouse News Service, September 8, 2010, available at
http://www.courthousenews.com/2010/09/08/30161.htmThe full opinion is available at
http://www.leagle.com/unsecure/page.htm?shortname=infco20100907112
3. New Jersey Attempts to Defend Against ADA Lawsuit
According to the Supreme Court's 1999 decision in Olmstead, which interpreted the Americans with Disabilities Act (ADA), persons with disabilities have a right to live in "the most integrated setting" possible. Accordingly, on June 29, 2009, the Civil Rights Division of the Department of Justice (DoJ) filed a case arguing that New Jersey has been shirking its legal duty by failing to move 1,850 persons with developmental disabilities out of institutions and into communities.
The State's first argument--that the ADA violates state sovereign immunity--was tossed out by U.S. District Court Judge Anne Thompson. Its most recent defense argues impossibility, since, according to the State's lawyers, the State cannot afford to transfer the individuals to communities at this time, though it has a plan in place for when it can afford to do so. The DoJ disagrees: "The state would save money [if it served the individuals in community settings] because [it] could close a wing, a floor, a building." Judge Thompson warned both sides to expect to go to trial.
Full Story: Susan Livio, N.J. Seeks to Dismiss Lawsuit Alleging Discrimination Against People with Disabilities, September 22, 2010, available at
http://www.nj.com/news/index.ssf/2010/09/nj_appeals_for_dismissal_of_la.html
B. EDUCATION
1. University Opens Dorm Room for Students with Disabilities
This fall of 2010, the University of Illinois has continued its legacy of making college accessible for students with disabilities by opening Nugent Hall, a residence hall that is the "most user-friendly dorm in the country for students with severe physical disabilities." The new residence hall allows students with severe disabilities to get the care that they need while being integrated with the general student population. Each dorm room comes equipped with a remote controlled ceiling lift to transport a person from the bed to the in-room bathroom, window blinds that can be controlled with a button, roll-in showers with chairs, sinks, thermostats and light switches at an accessible height, sensor activated faucets, wireless card entry, and a wireless pager that will call for help 24-hours per day. Students also receive 5 hours of help each day from PAs, or personal assistants. The PAs are typically fellow students who live in the dorm. They help the students with disabilities shower, use the bathroom, and place backpacks on chairs. The PA program is designed to help residents schedule their help and learn independent living skills and transition to mainstream housing environments. Room and board for students at the university is $11,000 annually, and students who require the support pay an additional $18,000, which may be covered through Illinois' vocational rehabilitation program.
Full Story: U. of I. Opens State-of-the-Art Dorm for Students with Disabilities, Chicago Tribune, August 18, 2010, available at
http://articles.chicagotribune.com/2010-08-18/news/ct-met-u-of-i-disability-dorm-20100818_1_dorm-disabilities-students-shower/2
2. Some Iowa School Districts Still Non-Compliant with State Discipline Rules
Some teachers in three of Iowa's school districts have violated state rules that "limit the use of physical force and 'timeout' rooms to discipline unruly students." In 2008, the Iowa Board of Education received several complaints about the use of seclusion and restraint techniques to discipline unruly children. This prompted the board of education to establish limits for how and when teachers can "lock up" children. The rules also banned dangerous restraint methods, such as the choke hold. The new rules allow teachers to "hold down or confine students who are a threat to themselves or others, but physical force and timeout rooms cannot be used as punishment." Permission must also be granted from school administrators in order to confine a student for longer than 1 hour. State records show that three school districts in Iowa have violated these rules since the 2008 change. All of the children in the new cases had mental disabilities. School officials have recommended and agreed to train special education employees in the proper use of seclusion and restraint techniques.
Full Story: 3 Schools Cited for Using Restraints on Unruly Kids, Des Moines Register, August 24, 2010, available at
http://pqasb.pqarchiver.com/desmoinesregister/access/2118250371.html?FMT=ABS&FMTS=ABS:FT&type=current&date=Aug+24,+2010&author=STACI+HUPP&pub=Des+Moines+Register&edition=&startpage=A.1&desc=3+schools+cited+for+using+restraints+on+unruly+kid
Note: a fee may apply for access to this article.
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Software Developed by Student Allows Blind Users to 'See' Pictures on a Tactile Board
A Taiwanese university student has developed a new technology that allows a user to take a picture with a cell phone and have that picture transformed onto a three dimensional screen so that the captured image can be physically touched. The student who developed this technology was motivated after discovering the extreme price tags on most other computer assistive technology for the blind, and wanted to develop a low cost alternative. Currently the technology can work on the Android operating system and uses Bluetooth to transmit the images to the screen. It can be operated by voice commands.
Full Story: Taiwan Student Invents Free Photography Software for the Blind, Taiwan News, September 2010, available at
http://www.inclusiveplanet.com/en/channelpost/652898
2. FCC Defends Fund Supporting Service for Persons with Hearing or Speech Disabilities Against Corporate Abuses
This September, in an on-going effort to investigate fraud of the Telecommunications Relay Service (TRS) fund, the Federal Communications Commission (FCC) has settled with a corporate provider of TRS services accused of over-billing by inflating how much was provided. The company has agreed to pay back the TRS fund for all funds, and a change of corporate policy with the inclusion of a compliance plan. The FCC was investigating whether the company offered illegal incentives to use the service, and possible double billing for certain calls. The FCC has stated an enduring commitment to preventing abuse of the TRS fund.
Full Story: Settlement Requires Payments in Excess of $22 Million for Alleged Abuse of Fund that Supports Vital Service for Persons with Hearing or Speech Disabilities, Federal Communications Commission, September 20, 2010, available at
http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db0920/DOC-301517A1.pdf
D. HEALTHCARE / BENEFITS
1. Georgians File Lawsuit to Reclaim Benefits
On Sept. 9, 2010, six Georgians, who each have a mental or developmental disability, sued state agencies and officials to sustain benefits that allowed them to live at home, rather than in a psychiatric institution. Under the state program named SOURCE--Service Options Using Resources in a Community Environment--many state residents were able to live in home, with the support of a state-funded caretaker. But according to the lawsuit, after the program was reorganized, the state funded only caretakers for persons with physical disabilities.
The Georgia Department of Community Health claims that eligibility requirements did not change in 2007, when SOURCE was moved to an "umbrella program" with funding for only the elderly and persons with physical disabilities. It did not mention how many people have been cut from the SOURCE program.
Full Story: Carrie Teegardin, Disabled Georgians Sue Over Program Cuts, The Atlanta Journal-Constitution, September 9, 2010, available at
http://www.ajc.com/news/disabled-georgians-sue-over-610455.html
2. Parents Want Autism Bill Vetoed
Some parents in the New York state are requesting that governor David Paterson veto a bill that they "believe will roll back health insurance coverage for popular therapies." The bill, S. 7000, which was passed in July 2010, mandates insurance companies to "cover evidenced-based, peer reviewed, and clinically proven therapies for autism." Parents worry that the wording in the bill may not allow coverage for therapies, like speech, physical, and occupational therapy, that treat the symptoms of autism, but not autism itself. However,Autism Speaks, one of the largest autism advocacy organizations, supports the bill and says that "the bill has plenty of precedent ... and that it will cover autism therapies for children and adults with no age or cost limits."
Full Story: Local Parents Want Paterson to Veto Autism Insurance Bill, LoHud, August 19, 2010, available at
http://pqasb.pqarchiver.com/lohud/access/2115400281.html?FMT=ABS&FMTS=ABS:FT&date=Aug+19,+2010&author=Candice+Ferrette&pub=The+Journal+News&edition=&startpage=A.1&desc=Local+parents+want+Paterson+to+veto+autism+insurance+bill
Note: a fee may apply for access to this article.
E. WORKFORCE
1. Ernst and Young Promotes Understanding about Invisible Disabilities
AccessAbilities, the initiative of professional services firm Ernst and Young to promote an inclusive work environment, is leading the way in addressing the issue of invisible disabilities in the workplace. The firm introduced a handbook in July to give its employees information about non-visible disabilities to foster an environment "where everybody is limited only by talent, skills and energy," according to Lori Golden, who leads AccessAbilities. The 17-page handbook defines terms like "disability," "non-visible disability" and "reasonable accommodation," discusses the pros and cons of disclosing a non-visible disability, and addresses issues such as dealing with resentment from colleagues who perceive accommodations as special treatment. In addition to encouraging an inclusive environment, Ernst and Young hope to show people with non-visible disabilities that there are health, safety, and performance risks to not informing employers about their disability. Other firms, like Manpower Inc., have already stated that they plan to adopt Ernst and Young's handbook in the hope that they too can educate their employees and build an inclusive work environment.
Full Story: Todd Henneman, Disability: Disclosure vs. Privacy, Workforce Management, September, 2010, available at
http://www.workforce.com/section/legal/feature/disability-disclosure-vs-privacy/index.html
2. Bureau of Labor Statistics Data Show Unemployment Rate for People with Disabilities Is Higher than the Rate for People without Disabilities
A report released in September by the Bureau of Labor Statistics (BLS) shows that the unemployment rate of persons with a disability was 14.5 percent in 2009, much higher than the 9.0 percent unemployment for people with no disability. This is the first time the Bureau of Labor Statistics has presented this data on workers with disabilities. The BLS obtained the data using the Current Population Survey, a monthly sample survey of about 60,000 households which provides statistics on employment and unemployment in the United States. The report showed that among people with disabilities, the unemployment rate for men was 15.1 percent in 2009, higher than the rate for women at 13.8 percent. BLS data also revealed that unemployment rates for people with disabilities were high among blacks at 22.1 percent and Hispanics at 19.0 percent than whites at 13.3 percent and Asians at 11.6 percent. Additionally, almost one-third of workers with disabilities were employed part time, compared with about one-fifth of those without disabilities.
Full Story: Cyril Tuohy, Disabled Americans Suffer More on the Job Market, HRE Online, September 22, 2010, available at
http://www.hreonline.com/HRE/story.jsp?storyId=533321535
F. INDEPENDENCE
1. Project STRIVE to Teach Independent Living Skills to High School Students
The Elmbrook School District in Wisconsin is launching a new program to help cognitively disabled students prepare for life after high school. Project STRIVE--Specialized, Transition, Recreation, Independent Living and Vocational Experiences--will teach students independent living skills and provide them with work experience at a volunteer job several hours a week. The school district plans to rent an apartment where students will learn how to do laundry and prepare meals. Elmbrook School District expects about six students to participate in the half-year pilot program, and they hope to expand the program to a full year if it continues.
Full Story: Alan Hamari, Students Get Taste of Real Life, BrookfieldNow, August 31, 2010, available at
http://www.brookfieldnow.com/news/101936503.html
2. Changes in UK Mortgage Program Threatens Homeowners With Disabilities
In the United Kingdom this August, several disability and housing organizations began voicing concerns that thousands of homeowners with disabilities are going into arrears or having their properties repossessed due to cutbacks in mortgage benefits. The National Housing Federation states that 64,000 people with disabilities get monthly help through the Support for Mortgage Interest (SMI) program. Through the program, the government currently pays a rate of 6.08% to mortgage lenders on behalf of borrowers with disabilities. However, the SMI rate is being changed from 6.08% to 3.63%. The newly lowered rate will be well below the interest rates of many mortgages held by participants with disabilities. This recalculation will hit an estimated 5,000 homeowners with profound physical and mental disabilities who depend on the program to pay for expensive accessible homes, and will make it more difficult for people with disabilities in the UK to own rather than rent their own properties.
Full Story: Graham Norwood, Disabled Homeowners Fear Repossession as Mortgage Interest Payments Cut, The Observer, September 5, 2010, available at
http://www.guardian.co.uk/money/2010/sep/05/disabled-homeowners-repossession-mortgage
G. EMERGENCY RESPONSE / PREPAREDNESS
1. School Districts Strengthen Emergency Response Plans with Grant of Federal Funds
In August 2010, the United Stated Department of Education, through its Readiness and Emergency Management for Schools (REMS) program, awarded 98 grants totaling $28.8 million dollars to various school districts around the country to improve emergency management plans. All plans developed through these grants must address "prevention-mitigation, preparedness, response, and recovery." Furthermore, each plan must take the needs of persons with disabilities and other vulnerable populations into account, and the districts must commit to coordination with other local officials.
Full Story: U.S. Department of Education Awards $28.8 Million to School Districts to Improve Readiness and Emergency Response Plans, U.S. Department of Education, August 19, 2010, available at
http://www.ed.gov/news/press-releases/us-department-education-awards-288-million-school-districts-improve-readiness-an
H. INTERNATIONAL
1. Saudi Arabia Urges the General Public to Learn Sign Language
The Saudi Association for Hearing Impairment has sponsored a first of its kind initiative to "increase the awareness about how to interact with the deaf and hard of hearing" and to teach members of the general public how to use Arabic sign language by distributing copies of Arabic sign language brochures at shopping malls and other public places. The association is also hosting a number of workshops to help those who are hearing impaired interact with the public.
Full Story: Saudi Arabia Makes Effort to Popularize Sign Language, Arab News, August 25, 2010, available at
http://www.disabilitynewsasia.com/home-mainmenu-1/434-saudi-arabia-makes-effort-to-popularize-sign-language.html
2. Singapore Launches Campaign to Provide Better Care for Those with Disabilities
On September 12, 2010, Singapore launched "LivEnabled," a two month campaign designed to increase awareness of the general public about the "different care options and assistance schemes available through the Centre of Enabled Living (CEL)." The chief executive for the CEL, Lee Kwai Sem speculates that because most of their referrals come from hospitals, a large portion of those who need and are eligible for care fall through the cracks because they do not know where to go for help and do not know what services are available. The CEL has also set aside $1.7 million Singaporean dollars to fund elderly care and disability services.
Full Story: Singapore Launches 'LivEnabled' Campaign to Encourage Better Care for People with Disabilities, Channel News Asia, September 12, 2010, available at
http://www.disabilitynewsasia.com/home-mainmenu-1/444-singapore-launches-livenabled-campaign-to-encourage-better-care-for-people-with-disabilities.html
ANNOUNCEMENTS
The staff of the Disability Law & Policy e-Newsletter welcome suggestions for announcements incorporating a focus on disability law or policy in forthcoming issues. If you would like to bring calls for papers or proposals, conferences or events, book announcements, new resources, or scholarship, fellowship or internship competitions to our attention, please send them to dlpannounce@law.syr.edu. Thank you.
Announcements
OSERS Accepting Submissions for 35th Anniversary of IDEA Celebration
In honor of the 35th anniversary of the Individuals with Disabilities Education Act (IDEA) this November, the U.S. Department of Education and its Office of Special Education and Rehabilitative Services (OSERS) will host a celebration in Washington, DC. Individuals with disabilities, students, teachers, parents and others can submit stories, poetry, photography, artwork and video clips for possible inclusion during the celebration. OSERS will accept submissions through November 8.
https://www.osep-meeting.org/idea35th/
Calls for Papers and Proposals
Book Announcements
Books and Publications
Scholarships, Fellowships, and Events
Conferences and Events
New Organizations and Resources
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
Website: http://www.bbi.syr.edu
Twitter - http://twitter.com/BBISyracuse
Facebook - http://www.facebook.com/pages/Burton-Blatt-Institute/194731496501
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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.; Senior Editor Elizabeth Ribet, Ph.D., J.D.; and Associate Editors Brandon Sawyer, Hannah Pooley, Jeff Davenport, Dana Mele, Tovah Miller, Nicole Loring, and Stephanie Herring.
http://disability.law.uiowa.edu/
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