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 20, 2011
Special Veterans Issue
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
1. Veterans Win Settlement in Post-Traumatic Stress Disorder Disability Benefits Lawsuit
On July 29, 2011, the federal government and a group of veterans with disabilities announced that they reached a settlement in a class action lawsuit. The settlement will award lifetime health benefits to more than 1,029 veterans of wars in Iraq and Afghanistan who were discharged because of post-traumatic stress disorder (PTSD). The veterans in the lawsuit were initially denied benefits on discharge after their military service.
The National Veterans Legal Service Program's (NVLSP) lawsuit, filed in 2008, alleged that the military violated the law by failing to assign a 50 percent disability rating to veterans discharged for PTSD--a rating that entitles veterans to disability retirement benefits. Bart Stichman, co-executive director of the NVLSP, stated that the veterans covered by the agreement were discharged because they had PTSD from being exposed to highly traumatic events and were subsequently denied benefits because of PTSD. "Today," he said, "a terrible wrong to our nation's war veterans is being righted."
Full Story: Steve Vogel, Iraq, Afghanistan War Veterans Win PTSD Settlement, The Washington Post, Aug. 2, 2011, available at
http://www.washingtonpost.com/local/dc-politics/2011/08/02/gIQAEm8cqI_story.html
2. Ninth Circuit Rules that Unconscionable Delays Violate Veterans' Constitutional Rights
On May 10, 2011, the United States Court of Appeals for the Ninth Circuit ruled in Veterans for Common Sense v. Shinseki that the VA's "failure to provide adequate procedures for veterans facing prejudicial delays in the delivery of mental health care violate[d] the Due Process Clause of the Fifth Amendment." Under the current system, it takes longer than the goal of 120 days to process a claim initially. If the decision is appealed, it takes over a year to process the request and nearly a year to render a decision on the appeal.
The Court cited evidence of an estimated 18 suicides per day among 25 million veterans nationwide, and four to five per day among those served by the VA. The Court noted that the agency had no suicide prevention officers at outpatient clinics and that 70 percent of its health facilities had no system in place to track potentially suicidal patients. In addition, with the many veterans returning from Iraq and Afghanistan, the Court opined that systemwide changes were needed.
Full Story: James Dao, Court Backs Veterans' Complaints on Mental Health Services, The New York Times, May 11, 2011, available at
http://atwar.blogs.nytimes.com/2011/05/11/court-backs-veterans-complaints-on-mental-health-services/Read Veterans for Common Sense v. Shinseki:
http://caselaw.findlaw.com/us-9th-circuit/1566845.html
3. Udall Wants Veterans with Disabilities Informed about Benefits Appeal Board
On August 15, 2011, advocates for veterans with disabilities urged the Pentagon to use phone calls, radio and television advertisements, and social media to raise awareness of the military's Physical Disability Board of Review. Only a fraction of the country's veterans with disabilities seek increased benefits because they are unaware of their right to appeal. United State Senator Mark Udall wrote a letter to the United States Department of Veterans Affairs on August 12, asking the VA to help make eligible veterans aware of the appeals process and the Board of Review.
In the letter, Udall asked the VA to send out letters to every eligible wounded warrior in the country, notifying them about their right to appeal and about the Board of Review, created in 2008 as part of the Dignified Treatment of Wounded Warriors Act. Soldiers discharged between Sept. 11, 2001, and Dec. 31, 2009, are eligible. The review board examines each disability case individually to determine if benefits mistakes were made during the discharge process. Fifty-six percent of veterans who appealed to the Defense Department had their benefits increased. But of 77,000 eligible vets, only 2,411 have applied. Udall believes few apply because few know of their rights. According to Ryan Pavlu, executive vice president of warrior engagement for the Wounded Warriors Project, letters won't be enough and multiple outreach methods will be most effective.
Full Story: John Schroyer, Udall Wants Disabled Vets Told of Benefits Appeal Board, Colorado Springs Gazette, Aug. 15, 2011, available at
http://www.gazette.com/articles/fraction-123283-nation-appeal.html
4. Governor Brown Creates California Interagency Council on Veterans
On August 23, California Governor Edmund G. Brown issued an Executive Order establishing the California Interagency Council on Veterans to improve how veterans' services are coordinated across local, state, and federal government. According to Governor Brown, the Council will address the needs of the 30,000 servicemen and women who return to California each year. The Council will identify and prioritize the needs of California's veterans and coordinate activities at all levels of government to meet those needs. Assembly Speaker John A. Pérez co-authored and introduced legislation to create the Council to provide needed services to California veterans.
According to the Executive Order, the unemployment rate for Gulf War II veterans is 42 percent higher than it is for non-veterans. Approximately 25 percent of these veterans have a disability connected to their service, compared to 13 percent of all veterans. In addition, Over 35 percent of veterans of Operation Iraqi Freedom and Operation Enduring Freedom have been diagnosed with mental disorders. In addition, California has the largest number of homeless veterans in the United States, and 62 percent of all homeless veterans have been diagnosed with substance abuse and serious mental health problems. In light of the hardships veterans in California face, the new Council will prioritize and address the needs of these veterans at all levels of government in the state of California.
Full Story: Governor Brown Creates California Interagency Council on Veterans, Imperial Valley News, Aug. 23, 2011, available at
http://imperialvalleynews.com/index.php?option=com_content&task=view&id=11130&Itemid=2
B. EDUCATION
1. Program Offers Education as a "Plan B" to Veterans with Disabilities
Many, if not most, military personnel do not plan on becoming veterans with disabilities. When 28-year-old Matt Watson was young he dreamed about becoming a police officer. However, in March 2003 he was hit by an Improvised Explosive Device (IED). This explosion killed one soldier and injured two others including Watson. Watson was hit by shrapnel on the right side of his body, from his legs to his face. Watson's vision was also impaired as a result of the explosion. Because of the injuries that Watson has incurred, he feels that he is less eligible as a police officer and is also having a harder time parenting his 5 year-old son, as he does not have a source of income. Watson decided that he needed to adopt a "Plan B," which was studying biology at the College of Western Idaho, funded by the Wyakin Warrior Foundation, created to educate wounded soldiers. The foundation was first created by a $102,000 grant from the J.A. and Katheryn Albertson Foundation. The Union Pacific Railroad Foundation added to this endowment with an additional $4,500. Many Idaho residents have made additional donations.
The Wyakin Warrior Foundation provides a full college scholarship for soldiers with disabilities. When the veterans graduate from their respective schools, the program also assists veterans with their job searches.Full Story: Anna Webb, New Idaho-Based Wyakin Warrior Foundation Sends 5 Young Veterans to College, Idaho Statesman, Aug. 20, 2011, available at
http://www.idahostatesman.com/2011/08/20/1766216/first-class-of-wounded-vets.html
2. Flight Training for People with Physical Disabilities
Able Flight is an organization that enables people with physical disabilities to obtain flight training. The organization awards flight training and aviation maintenance scholarships to people with physical disabilities. Many different people have enjoyed this program and have been able to use this program and the training they have received as a stepping off point for a new career. One such person is Army Specialist Jermaine Strachan who discovered Able Flight while he was being treated for injuries that he received in Iraq. While he was in the hospital, a major general came and took a few wounded soldiers flying. It was then that Strachan fell in love with flying. Strachan's occupational therapist found the Able Flight program online, which turned out to be an ideal outlet for Strachan's new interest. Strachan has now earned his sport pilot certificate. Other certificate recipients have aspirations to become flight instructors so that they can show other people with disabilities how to fly.
Full Story: Sarah Brown, Able Flight Grads Get Their Wings at Oshkosh, Aug. 2, 2011, available at
http://www.aopa.org/oshkosh/2011/news/110802able-flight-grads-get-their-wings.html
C. TECHNOLOGY
1. New Technology Allows Law Firm to Expedite Veteran Disability Claims
On October 18, 2011, IBM announced that a Florida law firm is using its software to file claims on behalf of veterans with disabilities more efficiently. IBM reports that its technology has allowed the firm LaVan & Neidenberg to file disability claims 66 percent faster than before. Filing a disability claim has traditionally been a long and tedious process, with each claim involving upwards of 40 separate documents. With the number of veterans filing disability claims on the rise, firms like LaVan & Neidenberg are looking for faster ways to file these claims. IBM's software simplifies the process by automating applications, consolidating the necessary documents, and facilitating open communication between the firm and the government.
Full Story: Hanna Smigala, Law Firm Teams with IBM to Help Veterans Get Benefits Faster While Increasing Revenue by 80 Percent, October 18, 2011, available at
http://www.prnewswire.com/news-releases/law-firm-teams-with-ibm-to-help-veterans-get-benefits-faster-while-increasing-revenue-by-80-percent-132025703.html
2. Free Smartphone Apps That Educate, Support Veterans with TBI and PTSD
BrainLine, a national multimedia project offering information and resources about preventing, treating, and living with traumatic brain injury (TBI), recently showcased six free smartphone applicationscreated for veterans with disabilities and their families. The applications address issues ranging from stress and mood regulation to tools to help improve quality of care for people with TBI and Post-Traumatic Stress Disorder (PTSD). Some of the applications, including Breathe2Relax and Tactical Breather, help veterans manage stress and anxiety through repetitive breathing exercises. Others, such as mTBI Pocket Guide and PTSD Coach, offer information to help educate and support veterans and their health providers. Another, PTSD Support for Veterans, provides a forum for veterans to post videos to share their stories and lend support to their fellow veterans. These free apps and others can be found in either the iTunes App Store or in the Android Market.
Full story: BrainLine, Six Free Military TBI Smartphone Apps, October 19, 2011, available at
http://www.brainlinemilitary.org/content/2011/07/top-6-military-tbi-apps.html
D. HEALTHCARE / BENEFITS
1. Veterans-For-Change Issue Press Release Regarding Agent Orange
On August 4, 2011, Jim Davis, the founder and CEO of Veterans-For-Change, an advocacy group for Veterans rights, released a statement to raise awareness of problems concerning veterans who were exposed to dioxin. Dioxin is a chemical associated with various cancers and is shown to cause numerous illnesses, and other toxic chemicals. According to the statement, thousands of veterans who served in Korea, Thailand, Cambodia, Laos, and elsewhere are denied benefits to which they are entitled for exposure to dioxin from Agent Orange. The Defense Department listed numerous locations in which Agent Orange was used or tested over time. VA intends to develop the list for proof of exposure for disability claims resulting from exposure to Agent Orange outside of Vietnam. In addition to overseas dioxin exposure, thousands of veterans who served in the Continental United States (CONUS) were exposed to Benzene and 35-45 other toxic chemicals without safety equipment or instructions.
According to the statement, Secretary of Veterans Affairs Eric Shinseki established service-connection for Vietnam Veterans with B cell leukemia, Parkinson's disease, and ischemic heart disease based on a study by the Institute of Medicine showing an association with exposure to Agent Orange. Vietnam veterans with these diseases may be eligible for disability compensation and health benefits. At the same time, many veterans are denied benefits because the missions on which they served were classified by the Department of Defense, although former President Bush signed executive order 13292 in 2003, ordering classified missions over 25 years old to be declassified.
In light of these statements, Veterans-For-Change called on legislators to take action by opposing a proposed 13 percent TRICARE health benefit rate increase for veterans and their families. The advocacy group maintained that since there have been no cost of living adjustments for military retired pay in recent years, an increase in TRICARE fees will effectively reduce pay.
Full Story: Jim Davis, Veterans-For-Change, Veterans-For-Change Press Release Regarding Agent Orange, Press Release, Colorado Springs Gazette, Aug. 4, 2011, available at
http://tucsoncitizen.com/veteranveritas/2011/08/10/veterans-for-change-press-release-regarding-agent-orange/
2. Injured Troops Face Bureaucratic Barriers to Leave Military
Thousands of troops are currently not fully fit to serve because of injury but unable to collect benefits because of a two-year delay between injury and discharge. The government determines pay and benefits to be given to wounded, sick, and injured troops for military service. The previous system consisted of two parts. First, a medical board determined the level of military compensation. Second, and after the service member was discharged, the Veterans Affairs Department determined disability benefits. Under the new system, which began in 2007 and which the VA will fully implement by the end of September, the two departments will administer the evaluations concurrently, but before the service member leaves the military. However, the new system does not typically begin until about one year after a service member suffers an injury, and has a goal of 295 days to complete after the initial year. The average completion time after the initial year is over 400 days. Until the process is complete, the service member cannot know the extent of benefits and time of discharge from the military. Because discharge is delayed, troops cannot obtain work or continue education, although they continue to collect military pay until discharged, which was not the case under the old system.
More than 11,730 Guard, Reserve, and active duty soldiers in the Army alone are currently going through the new process, and over a thousand troops enter the new system each month. The outgoing director of military personnel management, Army Maj. Gen. Gary H. Cheek, proposed a system in which the military would accept the VA's disability evaluation if the service member was found unfit to serve after the initial year, eliminating the need for two evaluations and cutting the additional 400 days down to 90, according to his estimation. However, Cheek's proposal would require a change in law, and it could potentially cost hundreds of millions of dollars more a year. House Veterans' Affairs Committee Chairman Jeff Miller said he is willing to consider the option in order to eliminate the delay for veterans in getting care and benefits, a clear flaw in the system.
Full Story: Kimberly Hefling, Disability System Leaves Troops in 'Vast Unknown,' postindependent.com, Aug. 18, 2011, available at
http://www.postindependent.com/article/20110818/VALLEYNEWS/110819872
3. Walter Reed Veterans Hospital Closes
On August 27, 2011, the Walter Reed Army Medical Center in Washington, D.C., closed permanently after 102 years. Because of Hurricane Irene, the final 18 patients moved to the National Naval Medical Center in Bethesda, Md., one day ahead of schedule. The last patient was admitted to Walter Reed at 9:10 am. Walter Reed was the principal hospital for soldiers wounded in Iraq and Afghanistan. It provided among the best medical care in the country, particularly in the area of prosthesis. According to General Hawley-Bowland, commander of the Army's Northern Regional Medical Command, soldiers now have prosthetic arms that allow them to do push-ups and hold rifles.
The historic hospital grew from 80 beds to over 2,500 during World War I. It most recently had a capacity of about 250 and has served approximately 150,000 soldiers as well as family members and veterans. Now that the hospital has closed, patients will be served at alternate facilities. The new facility in Bethesda, which will be renamed the Walter Reed National Military Medical Center, will have a 340-bed capacity. The new Fort Belvoir hospital will have 120 beds. NPR is currently presenting a special series covering the history of Walter Reed and current news stories related to the recent closing.Full Story: Walter Reed Closes after 102 Years, Occupational Health and Safety, Aug. 29, 2011, available at
http://ohsonline.com/articles/2011/08/29/walter-reed-closes-after-102-years.aspx?admgarea=newsSee also: Walter Reed Hospital Holds Closing Ceremony, The New York Times, July 27, 2011, available at
http://www.nytimes.com/2011/07/28/us/28reed.htmlSee also: NPR Special Series: Closing Walter Reed, NPR.com, available at
http://www.npr.org/series/139793002/closing-walter-reed
E. WORKFORCE
1. White House Plan Suggests Tax Credits for Businesses Hiring Veterans with Disabilities
On August 5, 2011, the White House unveiled a new plan to increase employment outcomes for veterans with service-connected disabilities. The White House proposal would provide businesses a $2,400 tax credit for hiring any unemployed veterans, a $4,800 tax credit for businesses hiring a veteran who has been out of work for at least six months, and a $9,600 tax credit for businesses hiring a veteran with a service-connected disability who has been out of work for at least six months.
The Obama Administration's proposed tax credit plan comes in response to recent statistics reported by the U.S. Labor Department, which also came out on August 5. These statistics showed that the unemployment rate for Iraq and Afghanistan-era veterans had risen from 11.8% in July 2010 to 12.4% in July 2011.
Full Story: Rick Maze, Obama Unveils Major Jobs Initiative for Vets, The Air Force Times, Aug. 5, 2011, available at
http://www.airforcetimes.com/news/2011/08/military-obama-unveils-major-jobs-plan-veterans-080511w/
2. White House Acknowledges New Institute for Veterans and Military Families
On August 5, 2011, President Barack Obama and the White House issued a press release acknowledging Syracuse University's innovative veteran entrepreneurship programs and also highlighting the Syracuse Whitman School of Management's recently-established Institute for Veterans and Military Families (IVMF). The White House press release emphasized private and governmental programs from around the nation, which are helping to reduce veteran unemployment, and issued a "presidential challenge to the private sector" to follow the lead of existing programs in committing to increased employment for veterans and their spouses.
The Institute for Veterans and Military Families, established by Syracuse University with funding from J.P. Morgan Chase, was announced by the University on June 8, 2011, with the goal of serving as a national center focusing on the social, economic, educational, and policy issues impacting veterans and their families as they return home from service. Through educational programming, employment, and research, the IVMF seeks to analyze challenges facing returning veterans, and to serve as a forum for facilitating partnerships and determining best practices. J.P. Morgan Chase has made an initial commitment of $7.5 million over the next five years to support the launch and subsequent growth of the IVMF and its programs.
Full Story: Jamie Winn Alvarez, Syracuse University's Veteran Resources Highlighted by White House, Syracuse University News, Aug. 5, 2011, available at
http://syr.edu/news/articles/2011/veteran-resources-08-11.htmlSee Also: Sara Miller, Syracuse University, JP Morgan Chase Partner to Establish National Institute for Veterans and Military Families, Syracuse University News, June 8, 2011, available at
http://www.syr.edu/news/articles/2011/veterans-military-families-06-11.html
F. INDEPENDENCE
1. Ohio Veteran Speaks Out about Right to Have Service Animals in Public
On August 10, 2011, Ohio resident Barbara Newstrom was attending the local Ross County Fair when a deputy of the Ross County Sheriff's Department stopped her and asked her to provide documentation for her service dog. Newstrom, an Iraq War veteran with service-connected disabilities including post-traumatic stress disorder and brain injury, requires the presence of a service dog for assistance in the event of a seizure. Newstrom's service dog is trained to look for help if a seizure occurs and wore a service vest at the time of the encounter.
Although the Ross County Fair Board has a policy of not allowing dogs at the Fair, the Americans with Disabilities Act (ADA) permits businesses to ask only certain questions about service animals, not including inquiries about "proof of disability" or certification of the animal. Responding to criticisms about ADA non-compliance, Fair Board President Brad Cosenza stated that U.S. Department of Justice officials, when contacted by telephone, had acknowledged "distinctive circumstances"--pertaining to the prevalence of livestock at the Fair--which may allow for exceptions to the ADA requirements. However, Cosenza also stated that the Fair Board plans to discuss how to address service animal concerns--and ADA compliance--going forward.
Full Story: Jona Ison, Woman Speaks Out About Rights Involving Service Animals after Incident at Fair, The Chillicothe Gazette, Aug. 12, 2011, available at
http://www.chillicothegazette.com/article/20110812/NEWS01/108120303/Woman-speaks-out-about-rights-involving-service-animals-after-incident-fair
2. VA Secretary Outlines Plan for New Medical Center; Reducing Disability Claim Backlog
Speaking before the Blinded Veterans Association on August 17, 2011, U.S. Department of Veterans Affairs (VA) Secretary Eric Shinseki outlined long and short-term goals for improving veteran access to healthcare and other benefits. Perhaps the most notable short-term goal is the planned $600 million Veterans Affairs Medical Center in Las Vegas. The VA hopes to have the Medical Center constructed and staffed within one year, with facilities including a mental health center, an outpatient clinic, a power plant with solar capabilities, and ninety hospital beds. In addition to improving veteran access to healthcare, the long-awaited project will generate an estimated $1.2 billion in economic impact over the next five years, and an estimated 1,850 medical jobs.
VA Secretary Shinseki also acknowledged and proposed measures toward mitigating the difficulties experienced by veterans making disability claims. Citing the VA's huge backlog of disability claims, which at times enters the millions, Shinseki claimed that addressing these claims and reducing the wait time is the VA's "number one priority." Last year, the Agency saw a 27% increase in its budget for automating the claims process, and has increased the total number of staff adjudicating claims. Two years ago, the average wait time for a VA claim was 180 days. The VA hopes to have that figure down to 125 days by 2015.
Full Story: Keith Rogers, Las Vegas Review-Journal, VA Chief Touts Promises Kept to Blinded Veterans, Aug. 17, 2011, available at
http://www.lvrj.com/news/va-chief-touts-promises-kept-to-blind-veterans-127977618.html?ref=618
H. INTERNATIONAL
Canada to Enhance the New Veterans Charter; Increased Benefits Effective this Fall
On July 10th, 2011, Canada's Minister of Veterans Affairs, Steven Blaney, released details of the upcoming regulatory changes in support of enhancing the New Veterans Charter, which were approved by Parliament. The Enhanced New Veterans Charter Act, passed as Bill C-55 this March, seeks to clarify and update directives from its prior configuration implemented over five years ago.
It provides additional monthly support to seriously ill and injured veterans and creates flexible new payment options for recipients of the disability award. It mandates a minimum pre-tax income of $40,000, expands eligibility for allowances, and establishes a new $1,000 monthly supplement. The regulatory changes correct the eligibility barriers that resulted from the 2006 changeover to the New Veterans Charter from the Pension Act, which had previously served all veterans.
Full Story: Government of Canada Presses Ahead with Enhancements for Veterans - New Measures Expected to Take Effect this Fall Will Provide More Help to Veterans, Disabled World News, July, 10, 2011, available at
http://www.disabled-world.com/news/canada/enhancements.php#ixzz1Rz4ipX1l
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.
Book Announcements
Scholarships, Fellowships, and Events
Conferences and Events
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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, Dana Mele, Tovah Miller,Tim Gallivan, Matthew Saleh, Desire Derrick, Paris Peckerman, and Robert Borrelle, Jr.
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