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 7, 2013
Volume 10, 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. EEOC Commissioner Offers Insights on Obesity as a Disability
On September 11, Chai Feldblum, commissioner of the Equal Employment Opportunity Commission, offered her thoughts on obesity as a disability under the ADA. Feldblum stated that the EEOC regulations recognize that both "body weight that falls outside a normal range, whether above or below, or body weight that is the result of a physiological disorder ... can be an impairment." Whether or not the impairment qualifies as a disability under the ADA depends on if the "abnormal weight or condition causing abnormal weight, substantially limits a major life activity or a major bodily function."
While courts in the past have been hesitant to recognize morbid obesity as "limiting enough to qualify as a disability under the ADA as originally enacted," their view may be changing because of the passage of the ADA Amendments Act. In two recent cases, federal district court judges have denied motions for summary judgment on the issue of whether morbid obesity constitutes a disability. In addition, the EEOC has secured two consent decrees in lawsuits involving morbid obesity as a disability, which provided for both monetary relief and "training and reporting obligations on the companies at issue."
Full Story: Patrick Dorian, EEOC Commissioner Feldblum Offers Insights on Obesity as a Disability, Employment Discrimination Report, Bloomberg BNA, Sept. 11, 2013, available at
http://www.bna.com/eeoc-commissioner-feldblum-n17179876987/See Also: EEOC v. Resources for Human Development, 827 F. Supp. 2d 688 (E.D. La. 2011), available at
http://scholar.google.com/scholar_case?case=9565445298045515539&hl=en&as_sdt=2&as_vis=1&oi=scholarrSee Also: Lowe v. American Eurocopter LLC, 24 AD Cases 40(N.D. Miss. 2010), available at
http://scholar.google.com/scholar_case?case=16749612524746050369&hl=en&as_sdt=2&as_vis=1&oi=scholarr
2. U.S. Attorney's Office Reaches Settlement to Improve Access at NBA Arena
On August 21, the U.S. Attorney's Office reached an agreement with Palace Sports and Entertainment under the ADA. The Agreement provides for "extensive changes to improve physical accessibility and opportunities for people with disabilities at the Palace of Auburn Hills," home of the NBA's Detroit Pistons. Palace Sports will now add 99 wheelchair accessible seats and an equal number of seats throughout the arena that will be "available for purchase in the same manner as general seats."
U.S. Attorney Barbara L. McQuade "applaud[s] the new owners of the Palace of Auburn Hills for agreeing to make meaningful changes that will ensure full and equal access to its facilities for people with disabilities." Palace Sports' Richard Haddad stated that Palace Sports was proud "to enhance the experience of everyone who comes to the Palace." In addition to the seating changes, Palace Sports will improve accessibility throughout the arena and train its employees annually on the ADA.
Full Story: DOJ, U.S. Attorney's Office Reaches Settlement with Palace Sports and Entertainment to Improve Access for People with Disabilities at the Palace of Auburn Hills, U.S. Attorney's Office Press Release, Aug. 21, 2013, available at
http://www.justice.gov/usao/mie/news/2013/2013_8_21_palacesports.html
3. Disability Rights Florida Asks to Intervene in DOJ's Lawsuit against the State of Florida
On September 6, the Florida not-for-profit group, Disability Rights Florida filed a motion to intervene into the U.S. Department of Justices' suit against the state of Florida. The lawsuit accuses Florida of "warehousing sickly and disabled children in geriatric nursing homes" in violation of the American with Disabilities Act. The Disability Rights Florida motion alleges that "nearly 200 children with medically complex needs who reside in nursing facilities throughout the state are illegally segregated in institutional settings."
Disability Rights Florida cites multiple examples of children with disabilities being institutionalized. The lawsuit alleges that lack of funding by health and social service administrations is a leading cause of the improper placements in institutional settings. A Miami civil rights attorney, Matthew Dietz, has initiated a separate lawsuit against Florida over the institutionalization of children.
Full Story: Rochelle Koff, Disability Rights Florida Asks to Intervene in Federal Suit Against Florida over Care for Disabled Kids, Miami Herald, Sept. 6, 2013, available at
http://miamiherald.typepad.com/nakedpolitics/2013/09/disability-rights-florida-asks-to-intervene-in-federal-suit-against-florida-over-care-for-disabled-k.html
B. EDUCATION
1. Proposed Changes to Federal Regulations Will Modify Educational Assessments
On August 23, the Education Department published proposal regulations to end the "two percent rule." Currently under the No Child Left Behind Act, the two percent rule allows states to count as many as 2% of "students with disabilities as academically proficient even if they do not meet grade-level standards ... [such a rule] prevents these students from reaching their full potential." Under the new proposal, schools would require that all students take assessments meeting college and career ready standards. However, students with the most significant intellectual disabilities would still be allowed to take alternative academic achievement tests.
This proposal is "widely favored by disability advocacy organizations," with more than 100 groups writing to President Obama to end the two percent rule. The proposal is accepting comments only until October 7, 2013, and could take effect at the end of the 2013-14 school year.
Full Story: Michelle Diament, Special Education Testing Standards May Soon Be Tightened, Disability Scoop, Aug. 26, 2013, available at
http://www.disabilityscoop.com/2013/08/26/sped-testing-tightened/18581/See Also: Education Department, Title I--Improving the Academic Achievement of the Disadvantaged: A Proposed Rule by the Education Department on 08/23/2013, Federal Register, Aug. 23, 2013, available at
https://www.federalregister.gov/articles/2013/08/23/2013-20665/title-i-improving-the-academic-achievement-of-the-disadvantaged
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Eye-Tracking Technology to Allow Hands Free Use of Windows 8 Tablets
On September 19, Tobii Assistive Technology, Inc., began selling a new eye-tracking technology called Tobii EyeMobile, which allows users to control most tablets equipped with Windows 8 software with their gaze alone. The eye gaze technology mimics all Windows 8 commands that would normally require the user's touch, for example, swiping, tapping, or scrolling.
The technology utilizes two cameras, which read eye movement via infrared light and eliminates errors caused by blinking or looking away from the screen. This technology will allow for hands-free use of off-the-shelf tablets that operate on Windows 8.
Full Story: John Larrabee, Tobii Eye-Tracking Tech Gives Users Hands-Free Control of Tablets, Boston Business Journal, Sept. 11, 2013, available at
http://www.bizjournals.com/boston/blog/techflash/2013/09/tobii-eye-tracking-tech-gives-users.htmlSee Also: Tobii, Eye-Tracking Technology by Tobii, available at
http://www.tobii.com/en/gaze-interaction/global/eye-tracking/eye-tracking-by-tobii/
2. Department of Education Provides Grant to Establish Center on Technology and Disability
On September 23, the U.S. Department of Education announced a $1.4 million grant to Family Health International (FHI) to establish a Center on Technology and Disability. The center will be run by FHI, American Institutes for Research, and PACER Center. The grant was developed by the Technology and Media Services for Individuals with Disabilities program, a primary source of support for accessible technology and media-related activities under the Individuals with Disabilities Education Act (IDEA).
The Center will aid schools in obtaining assistive and instructional technology for educational purposes. The assistive and instructional technology could include such things as closed captioning, video description, the provision of books and other written materials in accessible formats, and other activities.
Full Story: Ed.gov, Department Awards $1.4 Million Grant to Establish Center on Technology and Disability, Department of Education, Sept. 23, 2013, available at
http://www.ed.gov/news/press-releases/department-awards-14-million-grant-establish-center-technology-and-disability
D. HEALTHCARE / BENEFITS
1. Disability Managers Keep Focus on Mental Health
On August 18-21, Disability Management Employer Coalition (DMEC), a nonprofit group of about 4,500 disability and absence management community members, who advance strategies and resources to improve workforce productivity, held their annual conference in Atlanta, "to remind the benefits world that the United States is implementing two major health reform programs," the PPACA, and the lesser publicized Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). Rosalynn Carter, the former first lady, spoke at the conference about "the possible effects of the MHPAEA, a law that in conjunction with the PPACA essential health benefits standards is supposed to guarantee that holders of individual and small-group health coverage have access to comparable physical and mental health benefits. The MHPAEA already calls for employers who offer both medical and mental health benefits to provide similar access to both for employees.
Full Story: Allison Bell, Disability Managers Keep Focus on Mental Health, Life Health Pro, Aug. 20, 2013, available at
http://www.lifehealthpro.com/2013/08/20/disability-managers-keep-focus-on-mental-healthSee Also: Disability Management Employer Coalition, Impacts of the Patient Protection and Affordable Care Act on Absence and Disability Policies and Benefits, DMEC, Aug. 20, 2013, available at
http://dmec.org/2013/08/20/impacts-of-the-patient-protection-and-affordable-care-act-on-absence-and-disability-policies-and-benefits/See Also: Disability Management Employer Coalition, 2013 DMEC Annual Conference, DMEC, Aug. 18-21, 2013, available at
http://dmec.org/annual-conference/
2. Doctors Often Ill-Equipped to Diagnose Latinos on the Spectrum
On August 19, researchers published findings in the Journal of the American Academy of Pediatricians indicating that doctors are generally inadequate at assessing Latino children's risk for autism, often resulting in delayed diagnosis. The survey, which polled 267 California pediatricians, found that when working with Latino families doctors cited common obstacles including "difficulty with communication, cultural barriers and a lack of access to autism specialists." Additionally, the survey noted that pediatricians "believed that Latino parents -- whether English or Spanish-speaking -- are less knowledgeable about autism than white parents." The study recommended making more specialists available "to help support pediatricians so that they can make more timely referrals for Latino children at risk for autism," and providing families with "culturally-sensitive materials about autism and to encourage language-appropriate screenings."
The study helps to explain why "Latino children are diagnosed with autism two-and-a-half years later on average than white kids." Understanding why diagnosis is delayed is important because intervention is more successful when started early. Katherine Zuckerman, an assistant professor at Oregon Health & Science University who led the study stated, "We were surprised to learn how low the screening rates are among Latino children and how difficult primary care pediatricians report it is to screen Latino children for ASDs." She added, "We hope this data will help inform future interventions to reduce racial and ethnic differences in ASD care."
Full Story: Michelle Diament, Doctors Often Ill-Equipped to Diagnose Latinos on the Spectrum, Disability Scoop, Aug. 20, 2013, available at
http://www.disabilityscoop.com/2013/08/20/doctors-ill-latinos-spectrum/18549/See Also: Katherine Zuckerman et al., Pediatrician Identification of Latino Children at Risk for Autism Spectrum Disorder, Journal of the American Academy of Pediatricians, Aug. 19, 2013, available at
http://pediatrics.aappublications.org/content/early/2013/08/13/peds.2013-0383.full.pdf+html
E. WORKFORCE
1. Labor Department Rules Promote Hiring of Veterans and Persons with Disabilities
In late August, the Labor Department issued rules designed to increase the hiring of veterans and persons with disabilities for federal jobs. The rules strongly encourage federal contractors to prove that they have taken affirmative steps to maintain, at a minimum, 8% veterans and 7% persons with disabilities on their workforce. These rules will impact many industries including defense, healthcare, construction, and information technology.
While these rules have met some criticism from employers, if federal contractors cannot prove that they have taken steps toward these minimum thresholds, their federal contracts may be revoked. The Bureau of Labor Statistics reported that the unemployment rate among veterans was 6.4% and the unemployment rate among persons with disabilities was 14.7% in July 2013. These new rules are scheduled to take effect in approximately six months.
Full Story: Melanie Trottman, Hiring Rules Help Veterans, Disabled, Wall Street Journal, Aug. 27, 2013, available at
http://online.wsj.com/article/SB10001424127887324906304579039422790882200.html
2. Kessler Foundation's August Report Shows Negative Outlook for Workers with Disabilities
In early September, the Kessler Foundation, a charity organization that advocates for persons with disability in the workforce, released its most recent trend report for the employment rate of persons with disabilities. The Foundation's report showed that August's results were conclusively negative. The employment to population figure for persons with disabilities decreased by 2.2 percent compared to August 2012 and the percentage of people with disabilities seeking work increased compared to August 2012.
On the other hand, the Foundation believes that more employers are beginning to take an interest in employing persons with disabilities. The Kessler Foundation states that many Fortune 500 companies are looking to hire persons with disabilities and implementing programs to do so.
Full Story: Allie Bidwell, August Jobs Report Shows Negative Outlook for Disabled Workers, USNEWS, Sept. 6, 2013, available at
http://www.usnews.com/news/articles/2013/09/06/august-jobs-report-shows-negative-outlook-for-disabled-workersSee Also: Kesslerfoundation.org, August Employment Data for People with Disabilities Show Disappointing Results, Kessler Foundation, Sept. 6, 2013, available at
http://kesslerfoundation.org/media/displaynews.php?id=397&title=August%20Employment%20Data%20for%20People%20with%20Disabilities%20Show%20Disappointing%20Results
3. Labor Protections Extended to Include Millions of Home Health Care Workers
On Tuesday, September 17th, 2013, the Department of Labor handed down a ruling to include home health care workers within the protections provided by the Fair Labor Standards Act. Minimum wage and overtime protections will be extended to in-home health care workers as of January 1, 2015. According to Secretary of Labor Thomas Perez, these home health care providers work to ensure that "countless Americans are able to live independently, go to work and participate more fully in their communities."
Full Story: Tina A. Syring-Petrocchi, Home Health Care Workers Now Protected under the Fair Labor Standards Act (FLSA), The National Law Review, Sept. 18, 2013, available at
http://www.natlawreview.com/article/home-health-care-workers-now-protected-under-fair-labor-standards-act-flsaSee Also: Kent Hoover, Home Care Workers to Be Covered by Federal Minimum Wage, Overtime Laws, Jacksonville Business Journal, Sept. 17, 2013, available at
http://www.bizjournals.com/jacksonville/news/news-wire/2013/09/17/home-care-workers-to-be-covered-by.html
F. INDEPENDENCE
1. Inclusive Playgrounds a Reality
In accordance with new federal guidelines, all parks and playgrounds built or modified after March 2012 must be made accessible to wheelchairs and have equipment suitable for people with mobility impairments. This allows for safe outdoor places for people with disabilities to play and interact with others that have or do not have disabilities. According to the Chair in the Department of Inclusive Childhood Education at Nazareth College, "One of the ways that we develop confidence is through being able to do things successfully, independently. ... inclusive playgrounds include things ... so that all children are able to have success, be able to have fun and some independence."
Full Story: Ashley Hirtzel, Playgrounds Are for Everyone, Innovation Trail, Sept. 20, 2013, available at
http://innovationtrail.org/post/playgrounds-are-everyone
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Medical Professionals in England Hindering Work Capacity Appeals
In England, medical professionals are hindering persons with disabilities from filing appeals from decisions regarding their ability to work. Many medical professionals are notifying patients that they will not aid with challenging a Work Capacity Assessment unless the patient pays between £25 and £130 for their medical records. Moreover, other medical professionals are refusing to provide any medical evidence to aid in the appeals process at all. It appears that those with mental disabilities are especially meeting resistance when they ask for their medical files.
The medical professionals state that compiling the medical evidence for the fitness to work appeals is time consuming and that their time should be spent helping patients rather than on paperwork. Others criticize the Work Capability Assessment itself as a flawed system for costing millions in appeals from decisions that were rendered incorrectly. The Department for Work and Pensions states that they are continually trying to improve the process of assessment for one's fitness to work.
Full Story: Emily Dugan, GPs Charge Disabled Up to £130 to Appeal Fitness-to-Work Decisions, The Independent, Aug. 26, 2013, available at
http://www.independent.co.uk/life-style/health-and-families/health-news/gps-charge-disabled-up-to-130-to-appeal-fitnesstowork-decisions-8785041.html
2. Australian Government Drops Plan to Increase Rent for State-Run Accommodations
In early September, the Australian government decided against adopting a controversial plan to increase rents for persons with disabilities living in state-run accommodations. The plans originally included increasing rent in these accommodations by up to 75% of the disability support pension.
The Victorian Civil and Administrative Tribunal ruled that this increase in rent would be illegal without individual case assessment. The Minister for Disability Services supported this ruling, stating that individual examinations would not be "viable."
Full Story: ABC.net, Rent Reprieve for Disabled Living in Government Accommodation, ABC News, Sept. 6, 2013, available at
http://www.abc.net.au/news/2013-09-06/rent-reprieve-for-disabled-living-in-government-accommodation/4941276
I. POP CULTURE
1. The Art of Being Different: Combating Stereotypes of Disability
Postcards from the Edges, a website and upcoming series of nationwide exhibitions allows people with disabilities and mental health needs, as well as their family members, friends, and caregivers, to "express what's important to them, using a single postcard." Su Sayer, chief executive of United Response, a disability organization sponsoring the project, explained, "The format of the blank postcard allows participants to respond in the way that suits them best no matter what physical or mental challenges they may face." Each postcard uniquely expresses the individual that created it: "some have been sent in with poetry on them; others are photographs, digitalised art, paintings, stories, or collages." Sayer adds, "We've even received knitted postcards."
Postcards from the Edges has been attracting celebrity attention with Oscar-winner Emma Thompson, Paralympians Hannah Cockroft and Dame Sarah Storey, and 'Britain's Missing Top Model' Kelly Knox among the celebrities that have created postcards. However, Sayer notes that "This project is about creating a platform where people who often feel they are on the edges of society can make themselves heard." The article features a postcard made by Sue Kent, "with its bright image of teetering red heels, confronts the idea that disability demands stagnated sexuality. In the poetry on the postcard, she teases the status quo that suggests she should be more sensible and wear flats."
Full Story: Frances Ryan, The Art of Being Different: Combating Stereotypes of Disability, The Guardian, Aug. 20, 2013, available at
http://www.theguardian.com/society/2013/aug/21/postcards-from-edges-disability-mental-healthSee Also: United Response, Postcards from the Edges, available at
http://www.postcardsfromtheedges.org.uk/
2. CinemAbility Director Jenni Gold on Hollywood and Disabilities
On October 4-10, CinemAbility will be screened in New York City, with more locations to follow. CinemAbility is a documentary that shows how films and television shows have depicted disabilities throughout history. Director Jenni Gold shows how media and pop culture have shaped society's attitudes toward people with disabilities through a combination of interviews with actors, including Geena Davis, Gary Sinise, Marlee Matlin, and William H. Macy, and film clips from titles such as Freaks, Forrest Gump, Edward Scissorhands, and Game of Thrones.
When asked about the common stereotypes filmmakers indulge in that contribute to regressive attitudes toward people with disabilities, Gold states, "Most of the common stereotypes these days are characters whose disabilities serve a purpose to fuel their motives. They are usually written to be defined by their disabilities when in real life it is not the main focus of one's life." Gold furthers this idea with her explanation that in superhero films, like in The Amazing Spider-Man and Iron Man 3, "the bad guy is often a disabled person who seeks revenge or will risk everything to become cured. ... This reinforces the notion that nothing is worse than a disability."
Full Story: Bryant Frazer, CinemAbility Director Jenni Gold on Hollywood and Disabilities, Studio Daily, Aug. 26, 2013, available at
http://www.studiodaily.com/2013/08/cinemability-director-jenni-gold-on-hollywood-and-disabilities/See Also: CinemAbility Trailer [with captions], available at
http://www.amara.org/en/videos/8tdEH36uRHoS/info/cinemability-trailer/
I. 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.
Book Announcements
Scholarships, Fellowships, and Events
Conferences and Events
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Note to readers: News article links may require free registration for access, or may be active for a limited time before the respective news services archive them. Archived items may also be available for a fee. Products mentioned in this newsletter are for information only and do not constitute an endorsement.
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 Alessandra Baldini; and Associate Editors Douglas Curwin, Jenna Furman, Danielle Morrison, and Susan Schneider .
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