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
March 18, 2013
Volume 10, Issue 2
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. Schools Must Provide Athletic Opportunities for Students with Disabilities
The United States Government Accountability Office published a report that public schools are not affording students with disabilities an equal opportunity to participate in extracurricular athletics. In response to this, the Department of Education wrote the "Dear Colleague" letter to provide guidance to schools on what schools are obligated to do with respect to athletics for students with disabilities under Section 504.
First, the letter clarified that a school does not have to allow students with disabilities to participate in any competitive program offered; schools can require a level of skill in order to participate in a competitive program, but the criteria must not be discriminatory. Second, schools cannot operate programs on the basis of stereotypes or generalizations about students with disabilities. Third, schools offering extracurricular athletics must allow qualified students with disabilities an equal opportunity to participate by making reasonable modifications, unless it would be a fundamental alteration to the program. Finally, if the interests and abilities of students with disabilities cannot be fully and effectively met by the school's existing extracurricular athletics, the school should create additional opportunities for those students with disabilities that are supported as equally as school's other athletic activities.
Full Story: Seth M. Galanter, Dear Colleague Letter, U.S. Department of Education Office for Civil Rights, Ed.gov, Jan. 25, 2013, available at
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf
2. DOJ Reaches Settlement with Virginia Dental Office to Stop HIV Discrimination
On February 12, 2013, the U.S. Department of Justice (DOJ) reached a settlement with Virginia's Woodlawn Family Dentistry, under the Americans with Disabilities Act (ADA). The DOJ found that Woodlawn allowed a patient with HIV to schedule future appointments only as the last appointment of the day. The DOJ further determined that "there was no lawful reason why Woodlawn could not treat the patient at any time during normal business hours."
Under the settlement, Woodlawn must pay $7,000 to the patient and $3,000 in civil penalties. Additionally, Woodlawn must "train its staff on the ADA and develop and implement an anti-discrimination policy." This and two other settlements with separate health facilities are part of the DOJ's Barrier-Free Health Care Initiative to target ADA enforcement efforts in health care for persons with disabilities. The initiative expects to focus on access to health care issues for individuals with HIV and those with hearing disabilities, as well as physical access to medical facilities.
Full Story: Department of Justice Office of Public Affairs, Justice Department Reaches Settlement with Virginia Dental Office to Stop HIV Discrimination, Press Release, Feb. 12, 2013, available at
http://www.justice.gov/opa/pr/2013/February/13-crt-187.html
3. City of Memphis Settles with Justice Department to Ensure Physical Access at Stadium
On January 28, 2013, the Department of Justice and the city of Memphis, Tennessee, have reached an agreement under Title II of the Americans with Disabilities Act (ADA) to improve physical accessibility for people with disabilities at Liberty Bowl Memorial Stadium. Title II of the ADA prohibits state and local governments from discriminating against people with disabilities. As part of the agreement, 282 wheelchair spaces as well as companion spaces will be installed in the stadium on both the home and away sides. The wheelchair spaces will provide lines of sight over standing spectators.
The city of Memphis will make sure the stadium is compliant with the ADA in concession stands, gates, elevators, suites, and bathrooms too. The city will also hire an architect to confirm that ADA violations have been corrected and report its progress to the Justice Department, which will be monitoring Memphis's compliance with the agreement.
Department of Justice Office of Public Affairs, Justice Department Signs Agreement with the City of Memphis, Tenn., to Ensure Physical Accessibility for People with Disabilities at Liberty Bowl Memorial Stadium, Press Release, Jan. 28, 2013, available at
http://www.justice.gov/opa/pr/2013/January/13-crt-115.html
B. EDUCATION
1. Minnesota Adaptive Bowling Team a Shining Example
Five years ago, Dakota Birch, a high school student with autism and cerebral palsy from Fergus Falls, Minnesota, wanted to play a sport and be part of a team like the rest of her classmates. So Dakota and her mother teamed up with the school's athletic director to form the Fergus Falls Adaptive Bowling Team. This team has proven to be a successful way to include students with disabilities in competitive sports. Members of the team wear their team uniforms to school every Friday, a tradition enjoyed by all of the school's student athletes, and also participate in the annual awards banquet where they are presented with official varsity letters.
This team is also being recognized as a model for schools looking to implement the U.S. Department of Education's recent guidance on students with disabilities' right to equal access in extracurricular athletic activities. This guidance declared schools should make "reasonable modifications" for students with disabilities who wish to participate in sports and also permits the creation of adapted sports teams. There are currently 1,700 registrations for adapted sports in Minnesota, making the state a leader in implementing and sanctioning adapted athletic leagues for students with disabilities.
Full Story: Chris Murphy and Tom Mix, Adaptive Sports Providing More Opportunities for Students with Disabilities, INFORUM, Feb. 10, 2013, available at
http://www.inforum.com/event/article/id/389540/
2. Ohio State Review Reveals Restraint, Seclusion of Students with Disabilities
A state review of the Columbus, Ohio, school district has revealed that 371 children with disabilities were restrained or secluded a total of 1,829 times in 42 different schools from November 2011 through November 2012. Overall, these numbers amount to about 1 in every 25 students with disabilities. The types of restraint and seclusion mentioned in the review include holding students down, physically removing them from class, or placing them in closet-like rooms to calm down. Despite these statistics, the state found no violations of federal law because no child spent what amounted to ten school days in seclusion.
The state review was conducted in response to a complaint filed by advocacy group Disability Rights Ohio (DRO). DRO has criticized the findings, noting that no one from the state observed classrooms or interviewed parents, students, or teachers. DRO has also sent a letter to the state asking it to reconsider its findings and require staff development and training.
Full Story: Jennifer Smith Richards, 371 Students Restrained or Secluded 1,829 times, The Columbus Dispatch, Feb. 10, 2013, available at
http://www.dispatch.com/content/stories/local/2013/02/10/371-kids-restrained-or-secluded-1829-times.html
3. California Court Blocks Testing Accommodations Law
In September of 2012, California Governor Jerry Brown signed into law a bill that prohibits the Law School Admissions Council (LSAC) from "flagging" the Law School Admissions Test (LSAT) scores of students with disabilities who receive testing accommodations. LSAC challenged the law, and on February 1, 2013, a California State Court issued an injunction blocking its enforcement. The Court held that while the state has a legitimate interest in preventing disability discrimination, it was unfair for the law to single out the LSAC.
In addition to its practice of "flagging," the LSAC has been criticized for its reluctance to grant accommodations. LSAC typically receives about 2,000 requests for accommodations each year and provides at least some type of accommodation to about half. The LSAC acknowledges that its screening of accommodation requests is more rigorous than nearly every other standardized testing organization, but argues the screening process protects the test's integrity as a predictor of who will succeed in law school.
Full Story: Karen Sloan, Ruling Allows Council to 'Flag' Disabled Law School Admission Test Takers, The National Law Journal, Feb. 4, 2013, available at
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202586925213&Ruling_allows_council_to_flag_disabled_Law_School_Admission_Test_takers&slreturn=20130112173404
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Bookshare Makes Digital Reading of Educational Books Easier with Two New Products
Earlier this month, Bookshare, a company focused on providing copyrighted books to persons with visual disabilities, released two new products to aid in digital reading, called Bookshare Web Reader and Bookshelf. The Web Reader will allow individuals to open and read books without having to download the book or use separate software. The Web Reader allows books to be read directly in a browser and also has functions for adjusting the font size, color, and display format of the text. The Bookshelf will allow a person to organize their books on a Bookshelf, which would be especially helpful for teachers who have the option of organizing their books by class, subject, or student.
Bookshare hopes that these developments will make reading digital copies of books easier for persons with visual disabilities with this one-click reader system. Additionally, the company hopes this system will be used as an organizational tool for teachers to ensure accessible class material for all students.
Full Story: PRWeb, Simpler, Quicker Way to Read Bookshare Books - Organize Books on a Bookshelf and Read with a Browser, Feb. 4, 2013, available at
http://www.digitaljournal.com/pr/1050801
2. ABiSee, Inc., Develops Portable Reader Technology for the Blind and Visually Impaired
ABiSee, Inc. has developed two new technologies for individuals who are blind and visually impaired called Eye-Pal Ace and Eye-Pal ROL. Both devices can scan and read materials and enlarge text located directly below them using a built-in camera and optical character recognition technology.
Leon Reznick, the CEO of ABiSee, Inc., states that while the technology of the readers itself is not entirely new, these devices are more portable than other devices. The devices are cordless, handheld, feature a rechargeable battery, weigh less than four pounds, and do not require keyboards. Both devices also provide audible alerts of appointments or reminders. The products will be available for shipment this March, with purchase costs over $2,000.Full Story: Susan Shalhoub, Action Firm Develops Vision Technology, Feb. 5, 2013, available at
http://www.wbjournal.com/apps/pbcs.dll/article?AID=/20130205/METROWEST01/130209978
D. HEALTHCARE / BENEFITS
1. Glitch in Medical Code Threatens Mental Health Care, Therapists Warn
On January 1, 2013, psychotherapy treatment codes for insurance claims were updated. However, this year's update has led to many problems including system-wide delays and denials of payments and ultimately access to mental health care. These codes, which are updated each year by the American Medical Association, are used to describe and bill for mental health treatments. This year only 30 codes, of over 9,000, were updated and "have thrown a huge glitch into the system." These codes were updated after mental health care providers vigorously lobbied for higher payments for patients with medically complex or serious mental health concerns.
Nearly 20 percent of the U.S. adult population have some form of mental health care need. Thus, the code update problems are having a costly, nationwide affect. For instance, a psychologist in Michigan counseled over 300 patients in January, but has only been paid for five hours of work, using the new codes. These code glitches are affecting Medicare and Medicaid billing, as well as private insurers. This problem "comes amid growing demands for better interventions with the mentally ill in the wake of shooting massacres in Aurora, Colo. and Newtown, Conn."
Full Story: JoNel Aleccia, Glitch in Medical Code Threatens Mental Health Care, Therapists Warn, NBC News, Feb. 7, 2013, available at
http://vitals.nbcnews.com/_news/2013/02/07/16842490-glitch-in-medical-code-threatens-mental-health-care-therapists-warn?lite
2. Questions Linger about Implementing ACA's Medicaid Expansion
In less than one year, the largest one-year increase in enrollees will take place under the Affordable Care Act's (ACA) Medicaid expansion. Estimates show that in 2014 the majority of the more than 8 million newly enrolled beneficiaries will be low-income adults without children, with the rest including low-income parents who currently exceed income eligibility and low-income individuals with disabilities who do not qualify for the Supplemental Security Income program.
Under the ACA, "The federal government will cover 100% of states' costs of the expansion until 2016, after which the federal share will decline gradually until it reaches 90% in 2020." To date, 21 states and the District of Columbia have agreed to expand Medicaid, however, 12 states have declined to participate in the new program, and 17 states are undecided. In the past, each state that has expanded its Medicaid program "has seen higher-than-expected enrollment numbers [and] the people that show up are sicker than the states expected." It is not clear how many states will accept the Medicaid expansion program, and there is no deadline for accepting.
Full Story: Medi-Cal, Questions Linger about Implementing ACA's Medicaid Expansion, California Healthline, Feb. 13, 2013, available at
http://www.californiahealthline.org/articles/2013/2/13/questions-linger-about-implementing-acas-medicaid-expansion.aspxSee Also: Tony Pugh, Health Law's Medicaid Expansion Moves Forward, but with Many Questions, Insurancenewsnet.com, Feb. 13, 2013, available at
http://insurancenewsnet.com/print.aspx?id=372586&type=newswires
3. Do Missing Mental Health Notes Undermine Electronic Health Records?
On December 19, 2012, the National Institute of Health published a report calling for the integration of mental health records with the rest of a patient's health records. The report indicates that the American Psychiatric Association wants "patients to have the ability to share their mental health records with other physicians and care team members in the same way the rest of their records are managed." Evidence suggests that sharing the records may "lead to better and safer care."
As of 2007, only 44 percent of the top 18 U.S. hospitals store psychiatric records electronically, and 28 percent share these records with non-psychiatric physicians. This research has shown that those patients whose psychiatric records were shared with non-psychiatric physicians had lower readmission rates at 7, 14, and 30 days after discharge. Further, a patient advocate stated, "It is the health of the whole person that matters, and until we can get past all of this stuff that is attached to mental illness, we will never have parity in how we treat patients."
Full Story: Pamela Lewis Dolan, Do Missing Mental Health Notes Undermine EHRs? American Medical News, Feb. 11, 2013, available at
http://www.ama-assn.org/amednews/2013/02/11/prsa0211.htmSee Also: Dana E. Kozubal et al., Separate May Not Be Equal: A Preliminary Investigation of Clinical Correlates of Electronic Psychiatric Record Accessibility in Academic Medical Centers, NIH, Dec. 19, 2012, available at
http://www.ncbi.nlm.nih.gov/pubmed/23266060
E. WORKFORCE
1. Congressman Harper Refiles Disabilities Proposal
On February 5, 2013, U. S. Representative Gregg Harper of Mississippi reintroduced a set of bills intended to help young adults with intellectual disabilities transition from high school to post-secondary education and the workforce. The Transition toward Excellence, Achievement and Mobility (TEAM) Act would encourage schools to engage transition counselors to help youth during their final years in high school, create a state transition process and support system for youth with disabilities and their families, and work to improve the current national system that strives to help people with disabilities obtain employment.
Harper believes that national disability legislation is obsolete and must be changed. If it isn't, he believes, the laws will condemn people with disabilities to lives of poverty. He hopes the TEAM Act will help federal and state agencies to work together to improve employment services that help people with disabilities find jobs.
Full Story: Adam Buckalew, Harper Refiles Disabilities Proposal, Congressman Gregg Harper Press Releases, Feb. 5, 2013, available at
http://harper.house.gov/press-release/harper-refiles-disabilities-proposal
2. Monster.com First in Industry to Make Website Accessible for Blind Users
Partnering with the Attorney General of Massachusetts and the National Federation of the Blind (NFB), Monster.com is striving to become the first in the employment seeking industry to make its website and mobile apps fully accessible to people with visual and reading disabilities. Monster.com will help fund the Massachusetts Commission for the Blind job internship program, and donate some funds to the NFB and host their 2013 convention in exchange for assistance with adapting Monster's website and apps.
Monster.com will use screen access software to convert the site's text into Braille or speech. Within six months, the portal with which employers advertise their job offers will be completely accessible for people who are blind. The company's entire website (both desktop and mobile versions) and apps will be accessible within two years. In addition, Monster.com plans to train its customer service staff to assist customers with visual impairments and will form a committee to oversee the progress of this initiative.
Full Story: Attorney General Press Release, Monster.Com First in Industry to Make Website Accessible for Blind Users, The Official Website of the Attorney General of Massachusetts, Jan. 30. 2013, available at
http://www.mass.gov/ago/news-and-updates/press-releases/2013/2013-01-30-monster-agreement.html
F. INDEPENDENCE
1. Woman Fights for Her Right to Return to Living in the Community
During the summer of 2012, Margaret "Jenny" Hatch, a 28-year-old woman with Down syndrome, was forced to live in a group home and placed under temporary guardianship against her will. Before being forced into a group home, Jenny lived semi-independently with her friends in the community. A trial date has been set for May 1, 2013, to determine if Jenny can care for herself and if she needs to live in a group home.
Until the trial, Jenny's mother and stepfather have been appointed as her new guardians by a judge. Jenny demonstrated that she opposed this decision by shouting "No!" when the decision was made. Court records indicate that Jenny may be estranged from her mother. Jenny's guardian ad litem, who was appointed by the court and who is supposed to represent the best outcome for Jenny, testified that Jenny's parents should be the guardians despite the fact the Jenny has consistently stated that she wants to go back to living with her friends. Ken Falkenstein, president of the Down Syndrome Association of Hampton Roads, said "Jenny Hatch is a 28-year-old adult who happens to have Down syndrome. She still has rights, and as much as possible we want her rights, dignity and her wishes to be honored."
Full Story: Joe Lawlor, 'Justice for Jenny' Down Syndrome Guardianship Case Headed for Trial, Daily Press, Feb. 7, 2013, available at
http://www.dailypress.com/news/breaking/dp-nws-jenny-hearing-20130207,0,2205339.story
2. Man with Disability Killed in Police Custody - Studies Show Officers Lack Training
The death of Robert Saylor, a 26-year-old man with Down syndrome, has been ruled a homicide. Saylor died from asphyxiation after being forced to lie face down while in police custody. The police took Saylor into custody because Saylor, with an attendant, went to a movie theatre and paid to see "Zero Dark Thirty," but allegedly did not leave when the movie finished. The Baltimore County Sheriff's Office reported that the case is still under investigation and the police officers involved are still working their normal assignments.
Crisis Intervention Team International conducted a study and found that nationwide police officers often lack appropriate training for working with people with disabilities. Additionally, research conducted by disability advocacy groups found that "law enforcement officers often receive little or no training in the area of intellectual and developmental disabilities and have difficulty recognizing a person who has this disability."
Full Story: Simon McCormack, Robert Saylor's Death Ruled a Homicide: Man with Down Syndrome Died in Police Custody, Huffington Post, Feb. 18, 2013, available at
http://www.huffingtonpost.com/2013/02/18/robert-saylors-death-homicide-mentally-ill_n_2711629.html
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Japanese Government Plans Revisions to a Law Aimed to Aid Disabled in Emergencies
Earlier this month, the Japanese Cabinet Office announced that it planned to make revisions to a natural disaster law which would allow municipal governments to regularly exchange information on elderly and disabled residents with private organizations. The purpose of the revisions would be to facilitate greater speed and ease of aiding elderly and disabled persons during natural disasters or emergencies.
Some of the proposed revisions include allowances for municipal governments to create lists of elderly or disabled persons who are particularly vulnerable during emergencies and to distribute such lists to private organizations, such as neighborhood associations or nursing facilities, on a routine basis. The lawmakers are currently trying to weigh the needs of elderly and disabled persons during a disaster with their right to privacy and protection of their personal information, and thus, are considering making inclusion on the lists voluntary.
Full story: Masanao Umezaki, Better Info-Sharing to Aid Disabled in Disasters, The Daily Yomiuri, Feb. 9, 2013, available at
http://www.yomiuri.co.jp/dy/national/T130208004815.htm
H. INTERNATIONAL
1. Nigerian Senator Passionately Advocates for Disability Rights
Nigerian Senator Nurudeen Abatemi-Usman recently submitted a detailed plea to secure equal rights for persons with disabilities in Nigeria. The Western African nation is the 32nd largest country in the world and has 36 states with a total population of more than 162 million. Abatemi-Usman emphasized that while roughly 19 million people in Nigeria who have some form of disability are treated with respect, these individuals deserve comprehensive legislation safeguarding their place in Nigerian society.
In proposing a solution, the Senator provided details of a bill he is sponsoring that addresses issues of poverty, unemployment, education of children and young people with disabilities, access to security and assistive devices, as well as access to housing and public health services. Abatemi-Usman explained how legislation is the first step in giving persons with disabilities the opportunity to reaffirm a commitment to the Nigerian government and citizens. In his plea for equal rights for persons with disabilities, the Senator also highlighted Esther Oyema, the Nigerian female weightlifter who took home a gold medal at the recent Paralympic Games in London.
Full Story: Making a Case for Nigerians Living with Disabilities, SPYGhana, Feb. 7, 2013, available at
http://www.spyghana.com/making-a-case-for-nigerians-living-with-disabilities/
2. Australian Disability Commissioner Quits Federal Advisory Group in Protest
Graeme Innes, who serves as Australia's Disability Discrimination Commissioner, has quit a federal government advisory group in protest over its lack of progress. Innes claims the Accessible Airlines Working Group, where he served alongside the nation's Transport Minister and a collection of airline representatives, has made no developments on ensuring airplane access for persons with disabilities.
Innes describes the lack of progress made on overturning several airline policies that limit the number of wheelchair passengers per flight as one source of his frustration. In moving forward, Innes hopes "that the minister now might reassess this process and perhaps put in train a different process which is more task and goal oriented and picks four or five issues that are more important and sets itself some goals and timelines to remedy those issues." However, Federal Government frontbencher Joe Ludwig says the group "has initiated the development of publication of disability access facilitation plans which set out in detail how airlines and airports will meet the needs of passengers with disabilities."
Full Story: Disability Commissioner Quits Airline Advisory Group, Australian Broadcasting Corporation (ABC) News, Feb. 12, 2013, available at
http://www.abc.net.au/news/2013-02-12/disability-commissioner-quits-airline-advisory-group/4515052
I. POP CULTURE
1. Sesame Street Live Performs Sensory Friendly Show
On February 8, 2013, Fox Theatre in Detroit hosted their first "Autism Friendly Performance" with Sesame Street Live. Because sudden light changes and loud noises can overstimulate the senses of autistic children, Fox Theatre provided accommodations to make the show a better experience for children and parents. Some accommodations included giving parents notes about the production in advance to prepare their children on what to expect, arranging quiet areas for families to take breaks from the show, providing extra space in some seating areas, and offering gluten-free food options at the concessions. The goal of the sensory friendly show was to help families feel comfortable while educating staff, performers, and the audience about how that show was more enjoyable for autistic children and others with sensory disabilities.
Full Story: Karen Dybis, Sesame Street Live Brings First Autism Friendly Show to Detroit's Fox Theatre, MLive Detroit, Feb. 5, 2013, available at
http://www.mlive.com/news/detroit/index.ssf/2013/02/sesame_street_live_brings_firs.html
2. Ravens Quarterback Apologizes for Using R-Word
On January 29, 2013, Joe Flacco, the quarterback for the Baltimore Ravens, apologized to the media for using the "R-word" during an interview with a reporter. Flacco, who has worked with Special Olympics Maryland later apologized, stating that "It was a bad choice of words." He said, "I didn't mean to offend anybody but I definitely apologize for that." While the Special Olympics is standing behind Flacco, others are not. John Boit, the brother of a woman with Down Syndrome, thinks that "a guy like Joe Flacco, who works with the Special Olympics, who donates his time and I would assume his money to the Special Olympics, should know better." Boit used to be a fan of Flacco, but not anymore, stating, "What it does is, in my opinion, it amounts to hate speech."
Full Story: Monique Jones and Scott Dance, Joe Flacco Faces Criticism for Insensitive Remark, The Baltimore Sun, Jan. 29, 2013, available at
http://www.baltimoresun.com/sports/ravens/ravens-insider/bal-joe-flacco-lowers-the-boom-on-denver-again-20130128,0,1902933.story
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.
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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 Alessandra Baldini, Robert Borrelle, Stephanie Woodward, Jenna Furman, Kate Battoe, and Jesse Feitel.
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