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
August 8, 2012
Volume 9, Issue 6
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.
I. MISCELLANEOUS: News and topics may vary
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A. CIVIL RIGHTS
1. Court Rules New York City Taxi System Complies with Disability Law
On June 28, 2012, the United States Court of Appeals for the Second Circuit ruled that New York City's taxi system complied with the Americans with Disabilities Act (ADA), overturning a District Court ruling that required the Taxi and Limousine Commission (T.L.C.) to provide more meaningful access to wheelchair users as required by the ADA. The court ruled that the T.L.C.'s failure to use its regulatory authority does not amount to discrimination within the meaning of the ADA. Currently, about 230 yellow taxis are accessible to passengers who use wheelchairs. A State Supreme Court justice temporarily blocked the sale of an additional 2,000 medallions, expected to generate $1 billion and expand taxi service throughout the boroughs. If the court had ruled against the city, this sale could have been affected. As early as the end of 2013, medallions owners will be required to buy the Nissan NV 200, the "Taxi of Tomorrow," but this car is not wheelchair accessible without modifications. Mayor Bloomberg maintained that the ADA does not compel the city to require the taxis to be accessible to wheelchair users. The city will soon begin a dispatch service to allow passengers in wheelchairs to arrange for a pickup, and the Metropolitan Transportation Authority also provides the Access-A-Ride service. However, advocates argue that these services are inadequate. Edith Prentiss of Taxis for All Campaign, one plaintiff in the suit, said that the commission "will not be able to placate the disability community with this kind of second-class segregated service."
Full Story: Matt Flegenheimer, Court Says Taxi System Complies with Disabilities Law, June 28, 2012, available at
http://www.nytimes.com/2012/06/29/nyregion/new-york-citys-taxi-system-complies-with-disabilities-law-panel-rules.html
2. DOJ's Landmark $10.5 Million Settlement Resolves Housing Discrimination Lawsuit
On June 25, 2012, the Justice Department (DOJ) announced the largest disability-based housing discrimination settlement fund to date, resolving allegations of disability discrimination against JPI Construction L.P. and six other JPI entities (JPI) based in Irving, Texas. The lawsuit, filed in March 2009, alleged that JPI discriminated in the design and construction of multifamily housing complexes throughout the United States. The suit was filed after the DOJ investigated the JPI properties and found various accessibility barriers. The trial involving 32 of JPI's properties was set to begin on July 9, 2012.
The U.S. District Court for the Northern District of Texas approved the settlement, under which JPI agrees to spend $10,250,000 to retrofit properties built by JPI and to increase accessible housing in the communities where the properties are located. JPI must also pay a $250,000 civil penalty, the largest civil penalty the Justice Department has obtained in any Fair Housing Act case. In addition, the settlement prohibits JPI from discriminating on the basis of disability in the future and from interfering with the retrofitting process.
Full Story: DOJ Press Release, Justice Department Obtains Landmark $10.5 Million Settlement to Resolve Disability-Based Housing Discrimination Lawsuit, June 25, 2012, available at
http://www.justice.gov/opa/pr/2012/June/12-crt-802.html
3. Justice Department Joins Lawsuit over Warehousing Children in Nursing Homes
On June 28, 2012, the Department of Justice (DOJ) filed a request in federal court to intervene in a lawsuit against Florida healthcare regulators for warehousing children with disabilities in nursing homes. The class action lawsuit was filed in May against the Florida Agency for Health Care Administration (AHCA), state Surgeon General Harry Frank Farmer Jr. and others, alleging a violation of the Americans with Disabilities Act (ADA). The ADA requires state health regulators to house individuals with disabilities in the least-restrictive setting possible, which often requires that people with disabilities be moved out of large institutions and into group homes or family homes in community settings.
The plaintiffs in the current lawsuit allege that AHCA has cut funding for sick children to live at home so drastically that many have been forced to live in geriatric nursing homes. The lawsuit alleges that these cutbacks were designed to shift the burden of caring for children who are sick or have severe disabilities from Medicaid to parents and caregivers. The DOJ wrote that state health administrators have routinely and improperly denied medically necessary services. Further, advocates argue that geriatric nursing homes are not appropriate settings for children with severe disabilities, where staff are not trained to provide needed care. The DOJ will continue to participate in the litigation.
Full Story: Carol Marbin Miller, Feds Join Suit over Treatment of Florida's Disabled Kids, The Miami Herald, June 29, 2012, available at
http://www.miamiherald.com/2012/06/29/2875181/feds-join-suit-over-treatment.html?story_link=email_msg#storylink=cpy
4. U.S. Justice Department Threatens to Sue Oregon over Sheltered Workshop Programs
After a nine-month investigation, the United States Department of Justice sent a 20-page letter to the attorney general of Oregon, warning that programs to help individuals with disabilities find work are inadequate and that the state will face litigation if conditions do not improve. The letter stated that too many of these individuals are forced to work in sheltered workshops, earning less than minimum wage and performing repetitive, manual tasks. Sheltered workshops segregate individuals with disabilities, violating the Americans with Disabilities Act. States must provide services to individuals in a community-integrated setting to the greatest extent possible.
The investigation found that over than 52 percent of the workers earn less than $3 an hour. Oregon spends $30 million a year on sheltered workshops for people with disabilities. Advocates argue that in the long run, it would save money to pay for programs to help people find and maintain jobs in the community. Yet in March 2012, 1,642 people worked in sheltered workshops, and only 422 workers had jobs in the community with supports such as job coaching or help navigating the bus system. According to the investigation, Oregon has failed to provide community support. The DOJ has warned in the letter and in a statement that Oregon must take swift action to avoid litigation.
Full Story: Michelle Cole, U.S. Justice Department Threatens to Sue Oregon over Disabled Worker Programs, The Oregonian, July 02, 2012, available at
http://www.oregonlive.com/politics/index.ssf/2012/07/us_justice_department_threaten.html
B. EDUCATION
1. Advocates Seek Legislative Ban on Shock Treatments for Students with Disabilities
On June 2, 2012, a crowd gathered in front of the State House of Massachusetts seeking to eliminate the practice of using electric shock as a punishment on students with disabilities. Contending that "electrical shock is cruel and dangerous," rallying advocates pleaded their cases and anticipated that their engagement in the issue would help the ban become included in the final version of the State Senate's budget.
The Judge Rotenberg Educational Center in Canton employs such customs to reprimand its students for misbehavior. Examples of qualifying misbehavior include ripping a paper cup or even refusing to take off a winter coat. School staff members are often put into uncomfortable positions, and thus put their jobs in danger by not administering the shock treatment to students.
The state has made strides towards entirely eliminating such procedures. Last October, Governor Deval L. Patrick endorsed new regulations to ensure that no newly admitted students would undergo any sort of shock treatment.
Full Story: Christopher J. Girard, Advocates Rally for a Law to Ban Shock Treatment at Canton Special-Needs School, June 2, 2012, available at
http://www.boston.com/metrodesk/2012/06/02/advocates-push-for-law-ban-shock-treatment-canton-special-needs-school/oSgzxUN8L21MuCIJ0LD72N/story.html
2. Michigan Schools Providing Exceptions for Sports Age Limits
On May 31, 2012, the Michigan High School Athletic Association (MHSAA) announced that an amendment was approved to be supplemented to the MHSAA constitution "enabling students with disabilities to petition to participate in athletics as 19-year-olds." The initiative was taken by Dean Dompierre, who wants his 19-year-old son Eric, who has Down syndrome, to play on the Ishpeming football and basketball teams. The pre-existing rule excluded any student who turned 19 prior to September 1st from school athletics. Now, a waiver can be requested to permit a 19-year-old student to participate. However, the student must comply with the qualifications of having a "medically documented disability recognized by the Americans with Disabilities Act or Michigan's Persons with Disabilities Civil Rights Act."
Mr. Dompierre launched a website, letemplay.us, to provide an increased awareness of Eric's story. Ninety-three thousand people signed a petition available on the website to permit schools to vote on the amendment.
Full Story: Mick McCabe, Father of 19-Year-Old with Down Syndrome: 'I Couldn't Be Happier' Son Will Be Allowed to Play as a Senior, June 1, 2012, available at
http://www.downsyndromedaily.com/2012/06/father-of-19-year-old-with-down.html
C. TECHNOLOGY / TELECOMMUNICATIONS
1. U.S. Department of Labor Begins Disability Employment App Challenge
On May 23, 2012, the U.S. Department of Labor's Office of Disability Employment Policy announced the launch of its first disability-related application challenge. The contest's primary goal is to generate innovative and useful tools to assist those with disabilities in all facets of daily life. The program, which carries an August 23rd deadline, seeks to "promote recruitment resources for employers, develop job training and skill-building tools for job seekers, facilitate employment-related transportation options and expand information communication technology accessibility." Applications eligible to win are encouraged to attract users with a variety of language and skill sets, be compatible with common assistive technologies (such as screen magnification or speech recognition software), and have a source of third-party support to ensure the application's long-term sustainability.
The top three submissions will be awarded cash prizes totaling $10,000, including the grand prize Innovation Award, the second prize People's Choice Award, and the third prize Above and Beyond Accessibility Award. Winning applications will be featured prominently on ODEP's website, http://www.dol.gov/odep, as well as at http://www.disability.gov and through outside public outreach vehicles.
Full Story: Wall Street Journal Market Watch, US Labor Department Seeks Submissions for Disability Employment App Challenge, May 23, 2012, available at
http://www.marketwatch.com/story/us-labor-department-seeks-submissions-for-disability-employment-app-challenge-2012-05-23See Also: Disability Employment App Challenge Rules, May 23, 2012, available at
http://disability.challenge.gov/rules
2. Improving Educational Materials for Individuals with Print Disabilities
On May 10, 2012, Benetech, a nonprofit organization improving the lives of those with print disabilities, released a new open source application that drastically improves how graphic information is presented in educational materials. The application makes what would be otherwise inaccessible graphic content available for students and other readers with disabilities. Benetech's DIAGRAM Center, which stands for Digital Image and Graphics Resources for Accessible Materials, has been instrumental in this recent development. The Center was established by the US Department of Education (Office of Special Education Programs) to help find ways to make image descriptions in textbooks for print disabled students more effective and less costly.
The 'Poet' application helps to "level the playing field by making otherwise inaccessible graphic content available for students and other readers with disabilities" by supporting image descriptions for electronic books. The software allows users to upload a digital book and add image descriptions to images in the text that assist readers with print disabilities. The application gives those with print disabilities a clear understanding of the meaning and context of an image within any given text. The program has already generated thousands of image descriptions in science, technology, and math educational tools throughout middle and high-school aged children.
Full Story: Betsy Burgess, Benetech Releases Image Description Tool to Improve Accessibility of Graphical Content for Students with Print Disabilities, May 10, 2012, available at
https://www.bookshare.org/_/aboutUs/2012/05/poet
D. HEALTHCARE / BENEFITS
1. Increased Savings on Prescription Medication for People with Disabilities
The Affordable Care Act (ACA) provides, among other benefits, a fifty percent discount on brand-name prescription drugs for people who have reached the limit on their Medicare Part D prescription coverage. By covering this gap in coverage, generally referred to as a "donut hole," the ACA has made Medicare prescription drug coverage increasingly affordable for people with disabilities and other Medicare beneficiaries.
This important measure provides monetary relief to people with disabilities and other Medicare beneficiaries who often struggle to pay for the rising costs of medication. Since the passage of the ACA, over five million people have saved nearly four billion dollars on prescription drugs. To illustrate this impact, in 2010, people who faced a gap in their prescription coverage received a $250 dollar rebate. A year later, Medicare beneficiaries received well over two billion dollars in savings, which equated to an average savings of $604 per person annually. According to the Centers for Medicare & Medicaid Services (CMS), Medicare beneficiaries saved an average of $651 in the first five months of 2012 alone. These benefits are expected to increase, and by 2020 the coverage gap will be completely closed.
Full Story: Parija Kavilanz, Medicare: Seniors saved 3.7 billion on medicine, CNNMoney, June 25, 2012, available at
http://money.cnn.com/2012/06/25/pf/health-reform-medicare/index.htmSee also: Kathleen Sebelius, Stronger Benefits for Seniors, Billions in Savings this Year, Healthcare.gov, May, 24, 2012, available at
http://www.healthcare.gov/blog/2012/05/medicare052412.html
2. What the Supreme Court Ruling on the ACA Means for Americans with Disabilities?
Nearly half of the states challenged the constitutionality of the Affordable Care Act (ACA) on the grounds that it represented an overreaching of federal power on the respective states. Earlier this month, the Supreme Court's 5-4 ruling upheld nearly all of the ACA; most notably, the requirement that Americans purchase health insurance or face a penalty.
The ACA includes a heap of provisions, yet to be implemented, which advocates claim will be of consequence to Americans with disabilities. These provisions include but are not limited to (1) no "lifetime" limits on health insurance plans; (2) prohibition on insurers from denying coverage to people with pre-existing conditions; (3) the creation of the "Community First Choice Option" that offers states the opportunity to receive funds to support community living; and (4) requirements that insurance plans cover mental health services, rehabilitation and behavioral health treatment.
The Supreme Court did not rule in favor of one key provision, however, which has raised concern among disability advocates. That is, of course, the provision of the ACA which would require states to expand coverage of Medicaid or lose out on federal funding. If states should choose to "opt out" of this expansion, Americans with disabilities who earn higher incomes will be excluded from coverage. But advocates remain optimistic that states will "opt in" once they realize the generous federal funding available.
Fully Story: Disability Orgs Applaud Supreme Court Ruling on Affordable Care Act, Mobility Project, July 6, 2012, available at
http://themobilityproject.com/articles/2012/07/06/acasupremecourt.aspxSee also: Michelle Diament, Health Care Ruling a Win, Disability Advocates Say, Disability Scoop, June 29, 2012, available at
http://www.disabilityscoop.com/2012/06/29/health-care-ruling-win/15950/
E. WORKFORCE
1. Two Years Later, Obama's Initiative to Hire People with Disabilities Is Not Successful
The Government Accountability Office (GAO) released a report on May 25, 2012 criticizing the Office of Personnel Management (OPM) and the Department of Labor (DOL) for not effectively following President Obama's order to hire 100,000 people with disabilities in government jobs by 2015. Obama gave this order back in July of 2010 and charged the OPM and DOL with overseeing this order. The GAO reported that 66 government agencies submitted plans to the OPM on how the agencies will increase employment of people with disabilities, but only seven of these government agencies met the OPM criteria. The OPM sent feedback to all of the agencies detailing the areas where disability hiring plans were insufficient, but 32 of the 59 agencies have not addressed these concerns and the OPM failed to report this to the White House. Despite these problems, the OPM claims that the government hired 20,000 people with disabilities in 2010 and 2011. However, the OPM and the DOL both recognize that there is an issue with counting employees with disabilities because employees may choose not to disclose their disabilities. The GAO found that another setback is the lack of executive training skills. While OPM has been working on training modules since 2010 to address this issue, they still have not been implemented.
Full Story: Andrew Lapin, Watchdog: Disability Hiring Still Lags, Government Executive, May 30, 2012, available at
http://www.govexec.com/management/2012/05/watchdog-disability-hiring-still-lags/55983/
2. Disability Advocates Urge a Boycott of Goodwill Stores for Paying Subminimum Wage
Goodwill, a nonprofit disability organization is paying some of their employees with disabilities less than minimum wage. Some employees are making just over $1 per hour for their labor. While it is legal under the Fair Labor Standards Act (FLSA) for some organizations to pay people with disabilities less than minimum wage, the National Federation of the Blind, along with other disability rights organizations, is calling upon Americans to stop shopping at Goodwill stores until Goodwill ends their discriminatory wage practices. Anil Lewis from the National Federation of the Blind said that it is frustrating that the FLSA allows people with disabilities to be paid less than minimum wage because society does not believe that people with disabilities can work. Lewis is more frustrated that the CEO of Goodwill is a blind person who makes over $500,000 a year, yet Goodwill pays other people with disabilities less than minimum wage. "I don't know how he reconciles paying other people with disabilities less than minimum wage. To me, that is hypocrisy," Lewis said.
Full Story: Kristen Fisher, Goodwill Pays Disabled Employees Less Than Minimum Wage, 9 News Now, June 8, 2012, available at
http://www.wusa9.com/rss/article/208068/158/Goodwill-Pays-Disabled-Employees-Less-than-Minimum-Wage?fb_ref=artsharetop&fb_source=timeline
F. INDEPENDENCE
1. Disability Rights Advocates Demand Access to Pools
On Thursday, June 14, 2012, over one hundred people gathered outside of the American Hotel & Lodging Association's headquarters to demand access to swimming pools. The advocates were members of various disability rights groups, including the American Association of People with Disabilities. The updated regulations for the Americans with Disabilities Act required public swimming pools to install pool lifts by March 15, 2012. However, the Department of Justice recently extended that deadline to January 31, 2013, after the hotel industry lobbied against the regulations, arguing that there are safety concerns for children and people with disabilities. The disability rights advocates believe that the hotel industry is purposely stalling. The advocates will not accept the stalling and their message was loud and clear as they chanted "access is a civil right!"
Full Story: Anna-Lysa Gayle & Eric Fiegel, Protesters Seek Pool Access For People With Disabilities, CNN, June 14, 2012, available at
http://www.cnn.com/2012/06/14/politics/pool-access-protest/index.html
2. Senator Harkin Advocates for the Rights of People with Disabilities to Join Military
During a debate about the 2013 budget for the Department of Defense that took place on June 13, 2012, Senator Tom Harkin encouraged Defense Secretary Panetta to allow people with disabilities to serve in our armed forces. Senator Harkin said that this was the "next step in breaking down the discrimination of people with disabilities in our country." After expressing his views that people with disabilities can and want to serve in the military, Senator Harkin asked Secretary Panetta to set up a military pilot program for people with disabilities. Secretary Panetta agreed with Senator Harkin and stated that the Department of Defense could set up a military pilot program for people with disabilities.
Full Story: Senator Tom Harkin, Harkin Questions Defense Department on ADA, Child Labor, Youtube.com, June 13, 2012, available at
http://www.youtube.com/watch?feature=player_embedded&v=3StRu10qjIQ
G. EMERGENCY RESPONSE / PREPAREDNESS
1. New Proposal to Assist Individuals during Disaster or Emergency
On June 5, 2012, a new ASTM International standard, ASTM WK37628, Guide for Preparing for the Impact of Disasters/Emergencies on Local Residents/Visitors That Have Disabilities, was proposed to benefit individuals with disabilities in disaster or emergency situations. Communal awareness of individuals with disabilities was a focal point of the new proposal. Capacities such as location, transportation needs, and individual limitations were covered in the proposal to ensure enhanced safety. ASTM WK37628 will in effect educate the public on the proper procedures to "better prepare for and survive disasters."
The contributors to ASTM WK37628 commend any contribution or participation for the improvement of future disaster preparation. A new resource library is being implemented to aid in the effort.
Full Story: ASTM Staff, Standard to Assist Disabled during Disaster or Emergency, June 12, 2012, available at
http://news.thomasnet.com/companystory/Standard-to-Assist-Disabled-during-disaster-or-emergency-616819
H. INTERNATIONAL
1. Auckland Disability Law Fights to Protect Disability Law Services in New Zealand
Auckland Disability Law, New Zealand's only community law center that specializes in the legal needs of disabled people, is currently fighting the Ministry of Justice's proposal to withdraw funding for direct, specialist legal services for the disability community. The proposal, taking effect July 2013, will absorb the law center's direct services into a national legal advice service accessible via email and a toll-free phone number.
Auckland Disability Law has drafted an open letter to Justice Minister Judith Collins requesting her to reconsider cutting funding for the face-to-face law service for people with disabilities that the center provides. Martine Abel, Disability Advisor to the Auckland Council, echoed the essential nature of Auckland Disability Law's direct services, citing that many persons with disabilities either could not physically use the Internet or could not afford it. "We are not going down without a fight," declared Disability Law Center board member Sue Plowman.
Full Story: Law Centre Vows to Fight Restructuring, nzherald.co.nz, Jul. 6, 2012, available at
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10817730
I. MISCELLANEOUS
1. College Urged for 'Glee' Character with Down Syndrome
This season on the Fox television network's hit show "Glee" ended with a number of characters graduating from high school with plans to attend college. "Glee" features prominently a character named Becky Jackson, a rising high school senior with Down Syndrome. As the character readies for high school graduation in the upcoming season, an online media campaign has begun encouraging the show's creators and writers to send Becky to college. Using the Twitter hashtag #College4Becky, a social media campaign was launched encouraging the show to continue its tradition of sending characters to college by sending Becky on to postsecondary educational pursuits at the end of next season. Up to this point, the show has made little reference to Becky's future plans.
The online campaign was initiated by Think College, a national clearinghouse affiliated with the University of Massachusetts Boston, which focuses on college options for students with intellectual and developmental disabilities. In an open letter to the creators of "Glee," Think College noted that "if you make college plans for Becky, you'll be raising the expectations of all your viewers with Down syndrome and other intellectual disabilities." Think College's online database lists 199 colleges and universities around the nation which are geared towards students with intellectual and developmental disabilities. Nonetheless, awareness of college options for this population often remains limited. Lauren Potter, the actress with Down syndrome who portrays the character of Becky Jackson on "Glee," herself attends Irvine Valley College in Irvine, California, and serves on the White House's Committee for People with Intellectual Disabilities. The new season of "Glee" beings on September 13, 2012.
Full Story: Michelle Diament, College Urged for 'Glee' Character with Down Syndrome, Disability Scoop, July 24, 2012, available at
http://www.disabilityscoop.com/2012/07/24/college-glee-down-syndrome/16092/
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 dlpannounce@law.syr.edu. Thank you.
Calls for Papers and Proposals
Book Announcements
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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 Dana Mele, Matthew Saleh, Stephanie Woodward, Ryan Elliott, Josh Tumen, Max Smith, and Jesse Feitel .
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