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 18, 2011
Volume 8, 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: 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
A. CIVIL RIGHTS
1. Supreme Court Decides a Disability and Veterans' Rights Case
On March 1, 2011, Henderson v. Shinseki, a case involving disability and veterans' rights, was decided in the United States Supreme Court. David Henderson, a Korean War veteran, was discharged after being diagnosed with paranoid schizophrenia. The Department of Veterans Affairs denied his request for home care. He had 120 days to file notice of intent to appeal upon the denial of his request. Henderson missed the deadline by fifteen days due to his disability and requested that Veterans Court allow his appeal. The Veterans Court denied his request and while processing his request for a rehearing, the Supreme Court decided Bowles v. Russell. Prior to the Supreme Court Decision in Bowles v. Russell, lower courts interpreted Bowles to mean that all statutory deadlines for filing appeals are jurisdictional, meaning that Henderson's request was rejected because the Veteran's Court could not hear the case.
The Supreme Court, in an opinion by Justice Alito, unanimously held that Congress did not intend that the 120-day deadline to be jurisdictional. In other words, veterans who miss deadlines in Veterans Court should not be barred from bringing disability benefit claims. The Court reasoned that Congress meant to treat veterans' benefit claims differently from civil claims to give veterans making claims the benefit of the doubt.
Full Story: Lisa McElroy, Last Week's Opinions in Plain English, Scotusblog, Mar. 6, 2011,
http://www.scotusblog.com/?p=115456See also: L. Sheldon Clark and Omair Khan, Legal Information Institute, Cornell University, Henderson v. Shinseki, llibulletin,
http://topics.law.cornell.edu/supct/cert/09-1036Supreme Court of the United States Opinion: Henderson v. Shinseki, Scotusblog, Mar. 1, 2011,
http://www.supremecourt.gov/opinions/10pdf/09-1036.pdf
2. DOJ Settles with National Board of Medical Examiners in Testing Accommodations Suit
On Tuesday, February 22, 2011, the United States Department of Justice (DOJ) announced a settlement under the Americans with Disabilities Act with the National Board of Medical Examiners (NBME), the organization that administers the U.S. Medical Licensing Examination (USMLE). Frederick Romberg, a Yale Medical Student filed a complaint to the DOJ, and the DOJ filed suit on his behalf. Romberg alleged that NBME twice denied him reasonable testing accommodations to take the USMLE because of his dyslexia, in violation of the Americans with Disabilities Act (ADA).
Under the terms of the settlement agreement, Romberg was granted double the standard testing time and a separate testing area. NBME must comply with the ADA and provide reasonable testing accommodation to individuals with disabilities who take the USMLE in compliance with the ADA. Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, stated that in the past, individuals with disabilities were prevented from pursuing professions by requirements for unnecessary and redundant documentation, burdensome evaluations, and testing irrelevant to the ability to demonstrate knowledge and skills.
Under the settlement agreement, the NBME will lower the burden imposed by such extensive testing and documentation requirements by only requesting documentation from a test taker about the general existence of an impairment; whether such impairment substantially limits a major life activity under the ADA; and how the impairment limits an applicant's ability to take the USMLE under standard conditions. The NBME will carefully consider recommended accommodations, supported by documentation of qualified professionals who have observed the applicant in a clinical setting. The NBME will also carefully consider all evidence showing whether an individual's ability to read is substantially limited in accordance with the ADA's meaning.
Full Story: Justice Department Settles with National Board of Medical Examiners Over Refusal to Provide Testing Accommodations to Yale Medical School Student, Department of Justice Office of Public Affairs, Feb. 22, 2011, available at
http://www.justice.gov/opa/pr/2011/February/11-crt-220.html
3. University Conducts Mental Health Screenings to Identify Potential Violent Threats
At Seton Hall University, a Crisis Intervention Team (CIT) meets weekly to assess student behavior. The CIT leader, Terri Bassi-Cook, is also Director of Counseling, Disability and Health Services. She explained that the CIT examines behavior such as repeatedly missing classes or a decline in the quality of work as possible indicators of serious issues in order to "get to them as soon as possible before the problem gets a lot bigger than it is." Teams similar to the CIT emerged across the nation in response to the April 16, 2007, fatal shootings at Virginia Tech. Prior to the Virginia Tech incident, a governor's report stated that an early intervention may have prevented student Seung-Hui Cho from carrying out the shootings. Teams are comprised of academics, members of resident life, counselors, and public safety officials. According to the National Behavioral Intervention Team Association, most colleges and universities have behavior intervention or threat assessment teams. Some states, particularly Virginia and Illinois, require them at public universities and colleges. For example, Community College of Alleghany County in Pennsylvania, allows anyone in the college community to file a report. Upon submission, the Dean of Student Development reviews the report. Then, the Dean may take immediate and appropriate action by talking with the student, recommending counseling, or suspension. Officials say that changes in law since the Virginia Tech incident have relaxed privacy requirements and allowed the officials to reach out to "anybody who might have contact with that student."
Civil rights organizations say that the teams go too far and unjustly impede on individual rights. Adam Kissel, Vice President of programs at the Foundation for Individual Rights in Education, stated "there is [no] straightforward continuum from someone showing anger in a specific situation to someone being a mass murderer on campus."
Full Story: Jennifer Reeger, Schools Up Efforts to ID At-Risk Students, Pittsburgh Tribune-Review, Mar. 6, 2011, available at
http://www.pittsburghlive.com/x/pittsburghtrib/news/s_726063.html#ixzz1G4VfAV3K
4. Starline Los Angeles Tour Company Sued Over Wheelchair Access on Buses
On March 29, 2011, the Disability Rights Legal Center and Kirkland and Ellis, LLP filed a complaint against Starline Tours of Hollywood on behalf of thousands of people with mobility disabilities. The complaint alleges that Starline Tours, the largest tour company in Los Angeles, misrepresents the accessibility of its tour buses, and that the buses are not accessible to people who use wheelchairs. The complaint alleges a violation of the Americans with Disabilities Act (ADA). The ADA requires that private companies that provide public accommodations provide access to people with disabilities.
The complaint demands that Starline modify its buses or purchase new buses to allow full and equal access for people with disabilities, revise its policies and procedures, train its staff to comply with disability law, and pay damages and attorney's fees.
Full Story: Miriam Hernandez, Starline Sued Over Wheelchair Access on Buses, abc7.com, Mar. 31, 2011, available at
http://abclocal.go.com/kabc/story?section=news/local/los_angeles&id=8046555Ms. Wheelchair California Files Discrimination Lawsuit Against Starline Tours for Inaccessible Tour Buses, Press Release, Mar. 29, 2001, available at
http://disabilityrightslegalcenter.org/documents/PRESSRELEASE-MsWheelchairCaliforniaSuesStarlineTours.pdf
B. EDUCATION
1. School Board Settles Disability Suit to Avoid Setting Precedent
Parents of an eleven-year-old student with Asperger's Syndrome, filed a suit against their school district when the district denied their request classroom observation conducted by a psychologist. The Manatee County School District, in Bradenton, Florida, denied the parents' request, stating that "private vendors do not have a right to perform their services on school district property." The child had an Individualized Education Plan (IEP) that entitled her to such services under the Individuals with Disabilities Education Act (IDEA). On June 26, 2008, a judge entered a Final Order, which required "the school district to permit the privately retained psychologist to conduct an in-school observation of at least two hours." The school board appealed on July 25, 2008, to the U.S. District Court asking the court to reverse and vacate the order in hopes of avoiding the creation of new binding precedent. After court ordered mediation on January 6, 2011, the parties agreed to settle the case, so long as the parents dismiss all claims of prejudice and the School Board pays all attorney's fees associated with the due process hearing.
Full Story: Merab-Michal Favorite, School Board Unanimously Approves Settlement in Disability Suit, The Bradenton Times, Mar. 1, 2011, available at
http://www.thebradentontimes.com/news/2011/03/01/schools_and_education/school_board_unanimously_approves_settlement_in_disability_suit/.
2. Budget Cuts Threaten to Hit Specialized Schools Hard
New York Governor, Andrew Cuomo, proposed to take the $100 million of funding allocated to 4201 schools and distribute the money directly to public school districts. A 4201 school is a private school funded directly by the state for students with disabilities. There are 11 such specialized schools in the state, five in New York City. Under the new plan, school districts would have the discretion to distribute money to the special education schools. As school districts around the state face major budget cuts, 4201 schools may receive much less money than they did before Cuomo's proposal.
Ultimately, this re-allocation of budget funds could result in a lack of funds for students with disabilities in public schools. On March 10, 2011, specialized schools from around the state planned a rally in Albany to allow the governor and lawmakers to see and hear from the students."
Full Story: Specialized Schools Face Tough Cuts as Budget Battle Nears, Mar. 3, 2011, available at
http://www.ny1.com/content/top_stories/134965/specialized-schools-face-tough-cuts-as-budget-battle-nears.
C. TECHNOLOGY / TELECOMMUNICATIONS
1. New Viral World of Science and Technology Aimed at Helping those with Disabilities.
Georgia Tech initiated the Georgia STEM Accessibility Alliance (GSAA). GSAA is a collaborative learning institution focused on Science, Technology, Engineering and Math (STEM), on the popular program Second Life. Initiated last November, Georgia Tech and the University of Georgia announced the launch of their five-year, $3 million project as part of a National Science Foundation Alliance collaborative grant. The online island, created in Second Life, will be a place where Georgia students, high school through graduate studies, can go for help with any science, technology, engineering, or math questions. Robert Todd, Researcher at the Center for Assistive Technology and Environmental Access, and leader in the GSAA program, hopes that it will give students with learning or physical disabilities the opportunity to access mentors, tutors, and resources to help them succeed in their courses. Students with disabilities tend to face discrimination especially in the science and technology sectors. Researchers and leaders involved in the project hope that this online tool will give people with disabilities the round the clock access they need to reach their potential.
Full Story: Learning Science and Math in a Virtual World, Media Newswire, Feb. 28, 2011, available at
http://media-newswire.com/release_1144123.html.
2. European Computer Company Releases First Integrated Eye-Controlled Laptop.
On March 1, 2011, computer technology manufacturers, Tobii and Lenovo, publicly introduced the world's first integrated eye-controlled laptop. The fully functional prototype was manufactured by Lenovo, but uses Tobii technology. The Lenovo computer includes simple yet natural interfaces that should be easy for an average user to use. The Tobii technology allows the viewer to use his or her eyes to point, select, and scroll. The computer also can auto dim once through eye recognition to increase battery time.
Twenty computers will be released in the first batch. However, the current state of the computer is cost-prohibitive: The hardware combined with the technology is currently too large to be cost-effective for Lenovo and Tobii, so the computers will not be available to the public for some time.
Full Story: Tobii Unveils the World's First Eye-Controlled Laptop, Tobii Press Releases, Mar. 1, 2011, available at
http://www.tobii.com/en/group/news-and-events/press-releases/the-worlds-first-eye-controlled-laptop/
D. HEALTHCARE / BENEFITS
1. Study Shows Antipsychotic Drugs Contributes to Brain Tissue Loss in Schizophrenia
Researchers at the University of Iowa have found that antipsychotic medications commonly used to treat schizophrenia and other conditions appear to contribute to the loss of brain tissue that sometimes occurs in patients with schizophrenia. The findings suggest that physicians should consider using the lowest effective dose of antipsychotics when treating patients with schizophrenia. While antipsychotic medications are still the most important and effective form of treatment for schizophrenia patients, the study illustrates that doctors and patients alike must pay careful attention to dosages instead of terminating the use of antipsychotics altogether.
Schizophrenia is a pervasive condition, affecting one percent of the world's population. It is also a leading cause of chronic disability among young adults because progressive loss of brain tissue occurs at a faster rate in patients with schizophrenia than in individuals without the condition.
Full Story: University of Iowa Health Care, Antipsychotic Drugs May Contribute to Brain Tissue Loss in Schizophrenia, Feb. 7, 2011, available at
http://news-releases.uiowa.edu/2011/february/020711antipsychotic-drugs.html
2. Vermont House Vote Moves State Closer to Universal Health Care
On March 24, 2011, the Vermont House of Representatives approved a bill that would create a statewide healthcare marketplace. According to supporters, the measure would set up a marketplace for health insurance that would allow consumers to compare health plans.
Currently, approximately 47,000 Vermont residents do not have health insurance coverage. Supporters of the measure claim that the bill is designed to provide health insurance to those who do not currently have it; provide more comprehensive insurance to the approximately 160,000 underinsured Vermont residents; and reduce health care costs. Opponents of the legislation argue that the state is moving too fast into "uncharted territory."
Full Story: The Associated Press, Bloomberg Businessweek , Vermont House Votes to Approve Bill that Would Establish Health Care Marketplace, Mar. 24, 2011, available at
http://www.businessweek.com/ap/financialnews/D9M5NMUO0.htm
3. Health and Human Services Requests Additional Funds to Investigate Breaches
The United States Department of Health and Human Services (DHHS) asked for a budget increase of $5.6 million for fiscal year 2012. According to DHHS, the increased funds will allow the department to better investigate breaches of sensitive health information, reduce healthcare disparities and address discrimination based on disability. Currently, there are not enough available resources to investigate breaches affecting fewer than 500 people. The Office of Civil Rights claims that it receives an estimated 20,000 breach reports annually, and the additional funds will allow the office to hire more full time employees to flesh out these reports.
Full Story: Maureen McKinney, HHS' Office for Civil Rights Wants More Money to Investigate Data Breaches, Mar. 17, 2011, available at
http://www.modernhealthcare.com/article/20110317/NEWS/303179989/1153
E. WORKFORCE
1. U.S. Senate Looks to Increase Employment of People with Disabilities
On March 2, 2011, the U.S. Senate's Health, Education, Labor, and Pensions Committee heard testimony from government officials, disability advocates, and people with disabilities about how to increase employment for people with intellectual disabilities. Congress is not currently working on legislation for this issue, but legislative efforts may be forthcoming to help increase employment rates among people with disabilities. Currently, employment participation among people with disabilities is estimated to be as low as 23.9 percent, which the chair of the committee, Sen. Tom Harkin, D-Iowa, called "shockingly low." Witnesses testifying to the committee said that increasing employment opportunities would require several changes: raising expectations; working with businesses to remove attitudinal barriers; working with children to train them for the workplace; and encouraging young people to take internships to gain competitive employment experience. This meeting followed the latest unemployment numbers for February, which showed that the unemployment rate for people with disabilities increased to 15.4 percent in February, up from 13.6 percent in January. Unemployment rates for the general population were 8.9 percent in February.
Full Story: Michelle Diament, Senate Looks to Tackle 'Shockingly Low' Disability Employment, Disability Scoop, Mar. 2, 2011, available at
http://www.disabilityscoop.com/2011/03/02/senate-low-employment/12459/?utm_medium=email&utm_campaign=March+4%2C+2011%3A+News+from+Disability+Scoop&utm_source=YMLP&utm_term=Shaun Heasley, As Economy Improves, People With Disabilities Left Behind, Disability Scoop, Mar. 4, 2011, available at
http://www.disabilityscoop.com/2011/03/04/feb-2011-jobs/12489/?utm_medium=email&utm_campaign=March+4%2C+2011%3A+News+from+Disability+Scoop&utm_source=YMLP&utm_term=
2. Office of Disability Employment Policy Creates Online Toolkit
The U.S. Department of Labor's Office of Disability Employment Policy (ODEP) posted an online toolkit on March 8, 2011, that will help federal agencies recruit, employ and retain employees with disabilities. ODEP created the toolkit as part of Executive Order 13548. The toolkit's purpose is to increase federal employment of individuals with disabilities. The toolkit involves a five-step process for employers to follow:
- Step 1: Training: educate yourself on promising employment practices
- Step 2: Creating a welcoming environment: ensure that your workplace is accessible to all employees
- Step 3: Recruitment: create a pipeline of talented workers with disabilities
- Step 4: Hiring: interview and hire qualified employees with disabilities
- Step 5: Retention: keep valued employees with disabilities in your workplace
The toolkit is available at the ODEP website.
Full Story: Online Toolkit Helps Federal Agencies Increase Employment of Workers with Disabilities. HR BLR, Mar. 8, 2011, available at
http://hr.blr.com/HR-news/Discrimination/Disabilities-ADA/Online-Toolkit-Helps-Federal-Agencies-Increase-Emp/
F. INDEPENDENCE
1. Oprah Chooses Man with Cerebral Palsy to Host His Own TV Show
Last summer, Zach Anner posted an audition tape online for Oprah Winfrey's contest, "Your OWN Show: Oprah's Search for the Next TV Star." Anner, who has cerebral palsy, garnered the attention of millions of people and celebrities like John Mayer with his audition tape. In the tape, Anner said he has "the sexiest of the palsies" and pitched a "travel show for people who never thought they could travel." The audition tape won him nine million votes from the public. In February, Oprah announced that both Anner and another finalist, Kristina Kuzmic-Crocco, would each have their own shows on her new network. Now, Anner is preparing to produce six episodes of his new show, "Rollin' Around the World with Zach Anner." "When people think of me, I want them to think of a travel show host who's really funny and good at his job and I think eventually the CP won't even play into it," Anner said.
Full Story: Michelle Diament, Oprah Network Winner Opens Up About Cerebral Palsy, Disability Scoop, Mar. 8, 2011, available at
http://www.disabilityscoop.com/2011/03/08/zach-anner-interview/12531/?utm_medium=email&utm_campaign=March+8%2C+2011%3A+News+from+Disability+Scoop&utm_source=YMLP&utm_term
2. Mobility Mats Make Beaches More Accessible
With the summer months approaching, many people will be flocking to beaches. Going to the beach, however, can be problematic for people with mobility issues, since many beaches lack accessible pathways for people in wheelchairs to get onto the sand. This problem will change in Traverse City State Park near Chicago, where officials will be installing a 100-foot "Mobi-Mat" that will extend from the end of the cement ramp in the parking lot to the water's edge. Such mats will allow people with mobility issues to easily access the waterfront. The mat in Traverse City State Park is supposed be in place in time for Memorial Day. Other mats will be installed this summer at Clinch Park Beach, West End, East Bay Park, and Bryant Park beaches in Michigan. Disability Network of Northern Michigan raised funds to purchase the mats. These mats are also useful for senior citizens who have trouble walking through sand as well as families with strollers.
Full Story: Marta Hepler Drahos, Beach Access for Disabled Improving, Traverse City Record-Eagle, Feb. 22, 2011, available at
http://articles.southbendtribune.com/2011-02-27/news/29162328_1_mats-beach-access-beach-pathway.
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Next Generation 911 Access Discussed by the Emergency Access Advisory Committee
On March 11, 2011, the Emergency Access Advisory Committee (EAAC) met to discuss the best technologies and methods for access by persons with disabilities to Next Generation 911 emergency services. The EEAC was established by the Federal Communications Commission (FCC) as required by the Twenty-first Century Communications and Video Accessibility Act of 2010. After receiving input from its member groups and conducting a national survey, the EEAC will provide the FCC with recommendations to implement the most "effective and efficient technologies and methods."
Full Story: Federal Communications Commission, Emergency Access Advisory Committee Announcement of March 11, 2011 Meeting, Feb. 18, 2011, available at
http://transition.fcc.gov/cgb/dro/EAAC/Direct link to document (PDF):
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-11-329A1.pdf
H. INTERNATIONAL
1. The Singapore Government Invests $3.5 Million to Open Door Fund
On March 24, 2011, the Singapore government announced its pledge to invest $3.5 million to the Open Door Fund (ODF) to encourage employers to hire and train people with disabilities. The ODF launched in May 2007 to help create accommodations for people with disabilities in the workplace. The ODF is geared toward raising disability awareness among employers and creating support systems to facilitate the hiring of people with disabilities.
Additionally, the ODF allows employers who hire people with disabilities to claim tax benefits to up to $100,000 for expenses incurred. Companies that offer apprenticeships for people with disabilities receive subsidies of up to 60% from ODF for disabled trainees' allowances for up to six months.
Forty-nine new companies have joined ODF's initiative and 100 people with disabilities have attained full-time employment or apprenticeships as a result of the program.
Full Story: Singapore Invests $3.5 Million to Help Companies Create Employment Opportunities for People with Disabilities, Disability News Asia, Mar. 24, 2011, available at
http://disabilitynewsasia.com/home-mainmenu-1/703-singapore-invests-35-million-to-help-companies-create-employment-opportunities-for-people-with-disabilities.html
2. People with Disabilities in Nigeria Threaten to Boycott Presidential Election
In late March 2011, the Joint Association of Persons with Disabilities (Association) threatened to boycott elections to take place in April unless Nigerian President, Goodluck Jonathan, signs a bill that would empower people with disabilities.
On March 24, 2011, Danlami Basharu, President of the Association, spoke in Abuja at conference about people with disabilities as candidates for office. "The bill is of grave concern to us. The non-endorsement of the bill once again demonstrates the nonchalant attitude of politicians to issues affecting disabled people in Nigeria," said Basharu.
Association leaders urged people with disabilities to actively participate in politics and encourage awareness in the disability community.
Full Story: In Nigeria, Disabled Persons Threaten to Boycott Election, Disability News Asia, Mar. 25, 2011, available at
http://disabilitynewsasia.com/home-mainmenu-1/705-in-nigeria-disabled-persons-threaten-to-boycott-election.html
ANNOUNCEMENTS
The staff of the Disability Law & Policy e-Newsletter welcomes 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 mailto:dlpannounce@law.syr.edu. Thank you.
Calls for Papers and Proposals
Book Announcements
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
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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 Kelly J. Bunch, J.D.; and Associate Editors Brandon Sawyer, Patrick Vanderpool, Jonathan Schnader, Dana Mele, Tovah Miller, Nicole Loring, and Stephanie Herring.
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