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 13, 2013
Volume 10, 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.
I. MISCELLANEOUS: News and topics may vary
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A. CIVIL RIGHTS
1. Connecticut Physician-Assisted Suicide Bill Defeated
On April 5, 2013, the Public Health Committee of the Connecticut General Assembly removed from its agenda a bill that would have made it legal for physicians to prescribe lethal medication to terminally ill patients. The committee's removal of the bill means that the General Assembly will not vote on it this year.
Connecticut disability rights groups opposing the bill called for the General Assembly to focus on other issues that would make physician-assisted suicide unnecessary, such as more effective long-term care and end-of-life palliative care models. Proponents of the bill are optimistic that a continued discussion of the issue will allow the bill to move forward in 2014.
Full Story: Ed Stannard, Connecticut General Assembly Will Not Vote on Assisted Suicide Bill this Year, The Middletown Press, Apr. 5, 2013, available at
http://middletownpress.com/articles/2013/04/05/news/doc515f19ad8522d320507193.txt?viewmode=fullstory
2. DOJ Highlights Barriers to Services for Sexual Assault Survivors with Disabilities
In recognition of April as Sexual Assault Awareness and Prevention Month, the Department of Justice's Office on Violence Against Women (OVW) has announced a series of activities and trainings designed to raise awareness and improve the quality of services provided to survivors of sexual assault, particularly survivors with disabilities.
Among the trainings created by OVW is a webinar titled "Caring for Survivors with Physical and Developmental Disabilities" that aims to eliminate the barriers survivors with disabilities face in accessing services. According to OVW, webinar participants will learn strategies to create an accessible and welcoming environment for survivors with disabilities.
Full Story: Bea Hanson, April Director's Message - Sexual Assault Awareness & Prevention Month, The Justice Blog, Apr. 3, 2013, available at
http://blogs.justice.gov/main/archives/2765
B. EDUCATION
1. Texas Senate Approves Law Requiring Cameras in Special Education Classrooms
On April 4, 2013, the Texas Senate approved SB 1380, a law that would require schools to videotape all special education classrooms as a way to protect students from abuse. The impetus for the measure was a 2009 report from the Government Accountability office (GAO) that tells about specific instances of abuse involving disciplinary practices commonly referred to as "seclusion and restraint." One example from the GAO report is the story of a 14-year-old, 129-pound student in Texas who died after being pinned to the floor by a 230-pound teacher as a punishment for failing to remain seated in class.
Now that the Texas Senate has approved the law, SB 1380 will head to the House for consideration. If passed, the law will take effect in the 2013-2014 school year.
Full Story: James Rambin, Bill Requiring Surveillance in Special Education Classes Heads to House, Austinist, Apr. 8, 2013, available at
http://austinist.com/2013/04/08/bill_requiring_surveillance_in_spec.php
2. Darien, Connecticut, Parents File Special Education Complaint
A group of Darien, Connecticut, parents of children with disabilities have filed a complaint against the Darien Board of Education alleging systemic violations of the Individuals with Disabilities Education Act (IDEA). The IDEA requires schools to create an Individualized Education Plan (IEP) for each child enrolled in special education and mandates parent involvement in the development of the IEP through regular team meetings with the special education staff.
The parents claim they became suspicious when Darien schools began to cut the services in their children's IEPs. An outside source then provided the parents with an internal memo written by the Darien Special Education Director that directs special education teachers to enter team meetings under a "united front." The parents call this memo "a smoking gun" and allege it proves Darien special education staff predetermined which services each student would receive prior to team meetings. As of April 5, 2013, the Darien Board of Education had yet to formally respond to the complaint.Full Story: David DesRoches, District, Board Defend Policies, Seek Justice, Darien Times, Apr. 5, 2013, available at
http://www.darientimes.com/18014/district-board-defend-policies-parents-seek-justice/
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Nissan and BraunAbility Develop ADA Wheelchair Accessible Taxi
The "Taxi of Tomorrow," or the Nissan NV200 Mobility Taxi, is due to be released in New York City this fall. BraunAbility, a company that specializes in designing wheelchair accessible vehicles, partnered with Nissan to develop this taxi which includes a rear-entry ramp and a safe, quick wheelchair restraint system that is the first of its kind in the industry.
The Mobility Taxi functions as a standard taxi until the mobility functionality is needed. The second row seating in the taxi can be moved forward to create space for a wheelchair and the wheelchair ramp is unfolded and pulled out of the vehicle. There are front and rear tie-down belts for the wheelchair and a lap and shoulder belt for the passenger. When the passenger is seated, the wheelchair ramp is folded up and stored in a vertical position.
Full story: PR Web, Nissan Partners with BraunAbility to Provide Mobility Solution for NYC's Taxi of Tomorrow, Apr. 1, 2013, available at
http://www.prweb.com/releases/2013/4/prweb10581664.htm
2. Talk to An Expert, Inc., Develops Safe, Confidential Online Platform for Therapy
In early April, Talk to An Expert, Inc., released a new product designed to create easy access to mental health therapy for patients while protecting doctor-patient confidentiality. The software is called Therapist Direct™ and it provides a Health Insurance Portability and Accountability Act of 1996 (HIPAA) compliant platform for therapy to occur through video chat and/or email. This software was designed to address issues of online security and confidentiality in response to therapists using unsecure video chat or email platforms.
Talk to An Expert's mission is to "help people who help others" and they believe this software will greatly contribute to the availability of mental health services. The advantages for this software are clear in that persons with disabilities can have easy access to mental health therapy from the comfort of their home at any time during the day.
Full Story: PR Web, There's a Therapist in My Living Room!--New Software Makes Psychotherapy in the Home a Few Clicks Away, Apr. 2, 2013, available at
http://www.prweb.com/releases/2013/onlinetherapy/prweb10583884.htm
D. HEALTHCARE / BENEFITS
1. Disability Bias Clouding Organ Transplants, Report finds
In late March 2013, a report was released by the Autistic Self Advocacy Network discussing discrimination by health care providers against individuals with developmental disabilities who need an organ transplant. While federal law prohibits health care providers from discriminating on the basis of a person's disability, the report indicates that health care providers are "making medical judgments [with] decision-making done on the basis of disability [that] can often be officially attributed to non-discriminatory motives." Such non-discriminatory motives are doctors' concerns that patients with disabilities are not able to handle their postoperative care appropriately.
Additionally, there were two high-profile cases last year. In one instance, a three year old with an intellectual disability and Wolf-Hirschhorn syndrome was denied a kidney transplant but later granted one after public outrage. In another instance, a twenty-three year old with Autism was ultimately denied a heart transplant. Advocates are now urging federal officials to issue guidance for transplant centers and their duty to serve all, including those with disabilities.
Full Story: Michelle Diament, Disability Bias Clouding Organ Transplants, Report Finds, Disability Scoop, Mar. 21, 2013, available at
http://www.disabilityscoop.com/2013/03/21/disability-organ-transplant/17549/See Also: Ari Ne'eman, Steven Kapp, and Caroline Narby, Organ Transplantation and People with I/DD: A Review of Research, Policy and Next Steps, ASAN, Mar. 2013, available at
http://autisticadvocacy.org/wp-content/uploads/2013/03/ASAN-Organ-Transplantation-Policy-Brief_3.18.13.pdf
2. Wyoming Plans Redesign of Disability Program
Wyoming health officials are preparing a major redesign of the Home and Community-Based Waiver Program, a Medicaid program used by thousands of individuals with developmental disabilities or brain injuries. More than 2,000 individuals use the waiver services, which cost the state about $120 million, which makes it the costliest Medicaid program for the state. There are 500 people on waitlists for the waiver program's services and the average wait time now for an adult is 33 months.
The waiver redesign is part of the Wyoming Medicaid reform package passed earlier this year. The redesign has plans to create two separate waiver programs: one for the majority of people with a hard spending cap that pays for support services and another with comprehensive services for a smaller group of people with more intensive needs. While no plan is finalized, officials are looking for input from people who receive the services, with one such official stating, "We feel like the people who are impacted by these changes and who are getting these services, or who are on the waiting lists ... are the best people to say how we do this."
Full Story: Joshua Wolfson, Wyoming Plans Redesign of Disability Program, Wyoming Star Tribune, Apr. 2, 2013, available at
http://trib.com/news/state-and-regional/wyoming-plans-redesign-of-disability-program/article_0c16675c-88d7-5b57-90c0-046ead4307b6.html
3. UK's National Health Service Failing to Help Persons with Mental Health Disabilities Quit Smoking
A report published in March 2013 by both the Royal Colleges of Physicians and Psychiatrists in England discusses that the National Health Service (NHS) is not doing enough to help persons with mental health disabilities quit smoking. The study found that such individuals are twice as likely to smoke and tend to become more addicted. Further, while national smoking rates have declined, there has been little change in the rate of persons with mental health disabilities, who represent one-third of all smokers in England.
Persons with depression or anxiety are more likely to be smokers as some find it to help with symptoms. While smokers with mental health disabilities are just as likely to want to quit as those without, they are more likely to be heavily addicted and are much less likely to succeed in any quit attempt. However, prevention and addiction treatment programs have made little impact on this population. Thus, the report calls for greater research and support from the NHS on how to effectively reduce smoking practices among persons with mental health disabilities.
Full Story: BBC, NHS Ignoring Smoking in Mental Health Patients, BBC News, Mar. 27, 2013, available at
http://www.bbc.co.uk/news/uk-politics-21956316#?utm_source=twitterfeed&utm_medium=twitterSee Also: Royal College of Physicians, Smoking and Mental Health: A Joint Report by the Royal College of Physicians and the Royal College of Psychiatrists, Mar. 2013, available at
http://www.rcplondon.ac.uk/publications/smoking-and-mental-health-0
E. WORKFORCE
1. Business Builds Itself Around Workers with Autism
In an effort to find suitable employment for his son Andrew, who has autism, John D'Eri and his other son Thomas founded a car wash that mainly employs people with autism. The Rising Tide Car Wash, located in Parkland, Florida, uses the skills of this particular workforce to build a successful business. The founders worked with professionals at University of Miami and Nova Southeastern University to develop a 46 step process for washing cars so the company could offer its employees a structured environment.
Rising Tide pays its employees a working wage while helping them learn a skill needed in the community. The employees are excited to be working and contributing to society. They are pushed to improve their work and valued for who they are and the skills they develop. D'Eri plans to franchise Rising Tide in order to bring opportunities like this to other parts of the country.
Full Story: Michelle Diament, Business Builds Itself Around Workers with Autism, Disability Scoop, Apr. 9, 2013, available at
http://www.disabilityscoop.com/2013/04/09/business-workers-autism/17682/See Video: Rising Tide Car Wash, About Us, Rising Tide Car Wash, not dated, available at
http://www.risingtidecarwash.com/about-us/
2. Feds Take Stand Against Sheltered Workshops
In the last week of March, the U. S. Department of Justice filed a lawsuit on behalf of hundreds of people with disabilities against the state of Oregon. According to the plaintiffs, they have been asking the state to help them gain equal integrated employment for years but Oregon refused to help them, thus giving them no other option than to work in sheltered workshops, often paying subminimum wages. About a year before filing this suit, the Department of Justice stated that limiting employment of people with disabilities to sheltered workshops was akin to forcing them to live in institutions.
On April 11, Oregon Gov. John Kitzhaber issued an executive order to improve the government's employment services, and it will take effect this summer. The state will stop funding new placements in sheltered workshops in July 2015. As it is now, 61 percent of people with disabilities in Oregon work in sheltered workshops, and only 16 percent work in the community. From this point on, Oregon will develop policies and services to help people with disabilities obtain gainful employment in the community. According to Oregon's legislators, this order does not say there is need for change and it does not admit to guilt in the lawsuit.
Full Story: Shaun Heasley, Feds Take Stand Against Sheltered Workshops, Disability Scoop, Apr. 2, 2013, available at
http://www.disabilityscoop.com/2013/04/02/feds-stand-sheltered-workshops/17619/See Also: Michelle Diament, Facing Lawsuit, State To Shift Away From Sheltered Workshops, Disability Scoop, Apr. 15, 2013, available at
http://www.disabilityscoop.com/2013/04/15/facing-lawsuit-workshops/17711/See Also: The Associated Press, Kitzhaber plans workplace assistance for the disabled, The Bulletin, Apr. 13, 2013, available at
http://www.bendbulletin.com/apps/pbcs.dll/article?AID=/20130413/NEWS0107/304130343/0/SEARCH
3. EEOC Sues Presbyterian Healthcare for Disability Discrimination
On March 26, 2013, the Equal Employment Opportunity Commission (EEOC) filed suit against Presbyterian Healthcare Associates Corp, a large healthcare provider, on behalf of Donovus Todd. His left knee is permanently impaired because of an old knee injury. In 2009, Todd was accepted into a community college in Charlotte, North Carolina, to train to be a phlebotomist and interned at Presbyterian Healthcare for seven weeks. After he graduated, the corporation offered Todd a job but then rescinded the offer after he disclosed his disability during a mandatory health examination.
The EEOC states that since Todd was qualified for the position and could perform all of the duties required, Presbyterian Healthcare violated the Americans with Disabilities Act by not hiring Todd because of his disability. After trying to settle the matter out of court, the EEOC sued Presbyterian Healthcare in the U.S. District Court for the Western District of North Carolina. The EEOC is trying to get Todd back pay and compensation for this discriminatory act.
Full Story: EEOC, EEOC Sues Presbyterian Healthcare for Disability Discrimination, EEOC, Mar. 26, 2013, available at
http://www1.eeoc.gov/eeoc/newsroom/release/3-26-13.cfm
F. INDEPENDENCE
1. ADAPT Activists Arrested at White House While Fighting for Community Integration
On April 22, 2013, approximately 200 demonstrators with and without disabilities from the disability rights activist group ADAPT rallied at the White House to show their frustration with the Obama Administration for not keeping its promise to support community integration of people with disabilities. "The president has not taken the initiative to proactively champion community living or the innovative Medicaid programs that could make it a reality," said ADAPT organizer Josue Rodriguez of Memphis, Tenn. in a statement. "In nearly every way, President Obama and his administration have failed to live up to the promises about community living that he made during his presidential campaigns."
The U.S. Secret Service arrested 38 individuals for crashing through barricades according to their spokesman, Brian Leary; however, ADAPT reported that 41 of their members were arrested. "I think if we can do our part to highlight the institutional bias and stand-up for our community we have an obligation to do it," said Keith Percy an ADAPT member from Colorado who was arrested at the White House. "Unless we stand-up and do something about the issues of our people locked away then we never do get free."Full Story: Michelle Diament, Disability Advocates Arrested Outside White House, Disability Scoop, Apr. 22, 2013, available at
http://www.disabilityscoop.com/2013/04/22/disability-arrested-white-house/17776/Tim Wheat, ADAPT Holds the President Accountable, Second Term Must Make Good on Olmstead, ADAPT, Apr. 22, 2013, available at
http://www.adapt.org/freeourpeople/2013/report03.php
2. Oregon Ordered to Integrate People with Disabilities in Mainstream Work
On April 11, 2013, the Governor of Oregon, John Kitzhaber, issued an executive order to integrate more individuals with disabilities into the mainstream workforce and decrease funding for shelter workshops. According to the order, by July 1, 2015, Oregon's Developmental Disability Services and Vocational Rehabilitation Services will no longer fund sheltered workshop placements. This executive order was given just two weeks after the United States joined the class-action lawsuit against Oregon that alleges the state is violating the Americans with Disabilities Act by segregating workers with disabilities in sheltered workshops.
Bob Joondeph, executive director of Disability Rights Oregon, represents the plaintiffs in the class action lawsuit. Joondeph is worried about enforcement of the Governor's order and whether other employers would be permitted to pay workers below the federal minimum wage. Joondeph's worries are not unfounded since Oregon used to be a leader in helping people with disabilities integrate into the general workforce, but the number of workers with disabilities in sheltered workshops in Oregon, sometimes earning pennies an hour, has almost doubled since the 1990s.Full Story: Bryan Denson, Kitzhaber Orders Shift from Sheltered Workshops for People with Disabilities, The Oregonian, April 11, 2013, available at
http://www.oregonlive.com/pacific-northwest-news/index.ssf/2013/04/kitzhaber_orders_shift_from_sh.html
G. INTERNATIONAL
1. $887 Million Settlement Reached for Canadian Veterans with Disabilities
The Federal Court of Canada has approved a settlement of nearly $900 million in a class-action lawsuit that has involved thousands of veterans with disabilities. The case centered on a 30-year practice by the Canadian federal government that scaled back the military pensions of injured soldiers by the sum of disability payments they had received. Dennis Manuge, the lead plaintiff in the case, is a former army sergeant injured just before being deployed to Bosnia in 2001 who represented about 7,500 eligible veterans in the suit. The number of army veterans eligible to receive benefits from this suit grew by about 3,000 after more detailed information was provided about the disability pension plan.
The deal, praised by Defense Minister Peter MacKay, includes $424.3 million in retroactive payments to veterans dating back all the way to 1976. MacKay was pleased the Federal Court of Canada approved the settlement, and made clear "acting quickly and fairly to resolve this matter was of the utmost importance." Mackay would later go on to pledge continued support for Canadian veterans with disabilities.
Full Story: Court OKs $887M Settlement for Canadian Veterans, CBC News, Apr. 4, 2013, available at
http://www.cbc.ca/news/canada/nova-scotia/story/2013/04/04/military-pension-suit-settlement.html
2. New Zealand Building Plan Creates Barriers for Persons with Disabilities
A new proposal to ensure up to 25,000 buildings in New Zealand are earthquake-proof could lead to a dramatic decrease in access for persons with disabilities throughout the nation. A recommendation made by the Royal Commission on the Canterbury Earthquakes would allow property owners to bypass requirements to fashion their buildings with both facilities and access for persons with disabilities. With so many structures expected to require this earthquake strengthening, those who require special access could be excluded from multiple private, public, and residential establishments.
Disability rights groups say this recommendation would be an enormous step back in the treatment of persons with disabilities in New Zealand, and that the Commission's recommendations were too narrowly focused on the costs attributed to property owners. New Zealand's federal government has sought feedback on this issue, and the nation's Construction Minister ensured this decision is far from settled.
Full Story: Disabled Kiwis Left Behind by Quake Plans, The New Zealand Herald, Apr. 1, 2013, available at
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10874654
I. POP CULTURE
1. Columnist Calls Jon Stewart and Others Out for Using Offensive Language
A columnist, Tommy Christopher, called out the political comedian and host of The Daily Show, Jon Stewart, for using offensive language about people with developmental disabilities. On an episode of The Daily Show that aired April 29, 2013, Stewart made fun of political representatives by referring to the U.S. Congress as "Do-nothing f@#tards." The suffix "tard" is short for the offensive word "retard" and Christopher believes that only people who approve of using the full word should use the suffix.
In his column, Christopher points out that others have also used the suffix to mock groups, such as using the terms "libtard" or "Teatard." Christopher does not believe that all of the people who use "tard" as a suffix would approve of using the full word, not even Stewart, and that these people probably do not understand that the suffix causes just as much harm. To be clear, Christopher points out that his column on this subject is not "word-policing," or "political correctness run amok." Instead, he states that "every American is free to mock disabled people, and to use whatever words they want." However, he warns that if you do choose to use offensive language "you should do so with the knowledge that you're harming people who are nicely asking you not to."
Full Story: Tommy Christopher, Excessive Tard-iness: Jon Stewart Shouldn't Use Disabled People as Punchline Unless He Means It, Mediaite.com, Apr. 30, 2013, available at
http://www.mediaite.com/tv/excessive-tard-iness-jon-stewart-shouldnt-use-disabled-people-as-punchline-unless-he-means-it/
I. SPECIAL FEATURE BY ROBERT BORRELLE
Renewing the Call for the Keeping All Students Safe Act
The debate over the Texas Senate's recent passage of a law requiring video cameras in all special education classrooms is part of the larger national conversation on the use of restraint and seclusion in schools. Despite the safety concerns inherent to restraint and seclusion, legal oversight varies by state. Some states limit restraint and seclusion to emergency situations, while others have no meaningful standards at all. Although I applaud Texas for making the safety of children with disabilities a priority, I believe the call for video cameras in the classroom overlooks the underlying problem in our country: the complete lack of federal regulation on the use of restraint and seclusion in schools.
The impetus for the Texas video camera law was a 2009 report on restraint and seclusion by the Government Accountability Office (GAO). The 2009 report recounts horrific cases of abuse, including the story of a 14-year-old Texas student who died after his teacher pinned him to the floor. Nowhere in the report however does the GAO recommend schools place cameras in special education classrooms. In fact, the GAO discusses a case in Tennessee where abuse continued even after the school installed a camera. The crux of the report is that the GAO found "no federal regulations related to seclusions and restraints in public and private schools and widely divergent laws at the state level."
What is needed then is a uniform, federal response to this problem. In 2010, both the House and the Senate introduced versions of the Keeping All Students Safe Act, a law that would set nationwide standards for restraint and seclusion in schools. A 2012 report from the U.S. Department of Education laid out the purposes of the act: (1) limit the use of restraint and seclusion to cases where there is imminent danger of physical injury to the student or others at school; (2) provide criteria and steps for the proper use of restraint or seclusion; and (3) promote the use of positive reinforcement and other, less restrictive behavioral interventions. The act also requires states to establish reporting and data collection standards. Although the House version passed in March of 2010, the bill eventually died in the Senate.
Congress's inability to enact restraint and seclusion standards continues to impact students with disabilities, particularly students in states that lack meaningful standards. A recent review by the Ohio Department of Education found that 1 in 25 students with disabilities in the Columbus school district was held down, physically removed from class or put in closet-like rooms during the 2011-2012 school year. Despite this data, the department found no legal violations. Pressure from advocacy group Disability Rights Ohio led the state to enact standards in April of 2013, but we should not have to rely on advocacy groups to adjudicate this issue state by state. Congress must step up and finally enact restraint and seclusion standards that ensure the safety and dignity of every student.
See: United States Government Accountability Office, Seclusions And Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers, Testimony Before the House Committee on Education and Labor, May 19, 2009, available at
http://www.gao.gov/new.items/d09719t.pdfSee: U.S. Department of Education, Restraint and Seclusion: Resource Document, May 15, 2012, available at
http://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdfSee: 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
K. 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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